AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION, dated as of October __, 2001 (the
"Agreement"), by and between Xxxx Xxxxxxx Variable Series Trust I, a
Massachusetts business trust ("JHVST"), acting on behalf of its Large Cap Value
COREK II, Large/Mid Cap Value II, Active Bond II, Aggressive Balanced, and Mid
Cap Bond Funds ("Acquired Funds") and its Large Cap Value COREK, Large/Mid Cap
Value, Active Bond, Managed and Growth & Income Funds ("Acquiring Funds"), and
Xxxx Xxxxxxx Life Insurance Company ("Xxxx Xxxxxxx" or "Adviser"), a
Massachusetts corporation,
WITNESSETH:
WHEREAS, JHVST is an investment company registered with the SEC under the
Investment Company Act that offers separate series of its shares representing
interests in separate investment portfolios for sale to separate accounts of
life insurance companies to support investments under variable annuities and
variable life insurance contracts issued by such companies; and
WHEREAS, Xxxx Xxxxxxx provides investment advisory services to JHVST; and
WHEREAS, Xxxx Xxxxxxx and its affiliates hold record ownership of all
outstanding JHVST shares, either directly or through "separate accounts"
established under applicable insurance law; and
WHEREAS, Xxxx Xxxxxxx and JHVST desire to provide for a reorganization through
the transfer of all of each Acquired Fund's assets to a corresponding Acquiring
Fund, with which it will combine in exchange for the issuance by JHVST of shares
of such Acquiring Fund in the manner set forth in this Agreement and the
assumption by the Acquiring Fund of all of the liabilities of the Acquired Fund;
and
WHEREAS, this Agreement is intended to be and is adopted by the parties hereto
as a Plan of Reorganization within the meaning of Section 368(a) of the Internal
Revenue Code of 1986, as amended (the "Code"); and
NOW, THEREFORE, in consideration of the foregoing premises and the agreements
and undertakings contained in this Agreement, JHVST and Xxxx Xxxxxxx agree as
follows:
ARTICLE 1 DEFINITIONS
SECTION 1.1 Definitions.
For all purposes in this Agreement, the following terms shall have the
respective meanings set forth in this Section 1.1 (such definitions to be
equally applicable to both the singular and plural forms of the terms herein
defined):
"Acquired Fund" means each of the Acquired Funds listed above,
"Acquired Fund Shareholders" means the holders of record as of the
Effective Time of the issued and outstanding shares of beneficial interest in an
Acquired Fund.
"Acquired Fund Shareholders Meeting" means a meeting of the
shareholders of an Acquired Fund convened in accordance with applicable law and
the Agreement and Declaration of Trust of JHVST to consider and vote upon the
approval of the Reorganization for that Acquired Fund contemplated by this
Agreement.
"Acquired Fund Shares" means the issued and outstanding shares of
beneficial interest in an Acquired Fund.
"Acquiring Fund" means each of the Acquiring Funds listed above.
"Acquiring Fund Shares" means shares of the capital stock of JHVST
issued pursuant to Section 2.6 of this Agreement.
"Advisers Act" means the Investment Advisers Act of 1940, as amended,
and all rules and regulations of the SEC adopted pursuant thereto.
"Affiliated Person" means an affiliated person as defined in Section
2(a)(3) of the Investment Company Act.
"Agreement" means this Agreement and Plan of Reorganization, together
with any schedules and exhibits attached hereto and all amendments hereto and
thereof.
"Benefit Plan" means any material "employee benefit plan" (as defined
in Section 3(3) of ERISA) and any material bonus, deferred compensation,
incentive compensation, stock ownership, stock purchase, stock option, phantom
stock, vacation, retirement, profit sharing, welfare plans or other plan,
arrangement or understanding maintained or contributed to by JHVST on behalf of
an Acquired Fund, or otherwise providing benefits to any current or former
employee, officer or trustee of JHVST.
"Closing" means the transfer of the assets of an Acquired Fund to the
corresponding Acquiring Fund with which it will combine, the assumption of all
of the Acquired Fund's liabilities by the Acquiring Fund and the issuance of the
Acquiring Fund Shares directly to the Acquired Fund Shareholders as described in
Section 2.1 of this Agreement. If there is more than one Closing, then, as
pertains to an Acquired Fund and its corresponding Acquiring Fund, the term
Closing signifies the Closing of the Reorganization of those two Funds.
"Closing Date" means December 19, 2001 for the Reorganization of the
Large Cap Value COREK II, Large Cap Value COREK, Large/Mid Cap Value II, and
Large/Mid Cap Value Funds; December 14, 2001 for all other Funds covered by this
Agreement; or such other date or dates as JHVST's Chairman or Vice Chairman
shall determine. To the extent there is more than
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one Closing Date, then, as pertains an Acquired Fund and its corresponding
Acquiring Fund, the term Closing Date signifies the Closing Date for the
Reorganization of those two Funds.
"Code" means the Internal Revenue Code of 1986, as amended, and all
rules and regulations adopted pursuant thereto.
"Custodian" means State Street Bank & Trust Company, acting in its
capacity as custodian for the assets of the Acquiring Funds and the Acquired
Funds.
"Effective Time" means 4:00 p.m. Eastern Time on the Closing Date or
such other time or times as JHVST's Chairman or Vice Chairman shall determine.
To the extent there is more than one Closing Time, then, as pertains to an
Acquired Fund and its corresponding Acquiring Fund, the term Closing Time
signifies the Closing Time for the reorganization of those two Funds.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and all rules or regulations adopted pursuant thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and all rules and regulations adopted pursuant thereto.
"Fund Financial Statements" shall have the meaning set forth in Section
3.3 of this Agreement.
"Governmental Authority" means any foreign, United States or state
government, government agency, department, board, commission (including the SEC)
or instrumentality, and any court, tribunal or arbitrator of competent
jurisdiction, and any governmental or non-governmental self-regulatory
organization, agency or authority (including the National Association of
Securities Dealers, Inc., the Commodity Futures Trading Commission, the National
Futures Association, the Investment Management Regulatory Organization Limited
and the Office of Fair Trading).
"Investment Company Act" means the Investment Company Act of 1940, as
amended, and all rules and regulations adopted pursuant thereto.
"JHVST" means Xxxx Xxxxxxx Variable Series Trust I, a Massachusetts
business trust.
"JHVST Registration Statement" means the registration statement on Form
N-1A, as amended, of JHVST (File Nos. 33-2081 and 811-04490).
"Lien" means any pledge, lien, security interest, charge, claim or
encumbrance of any kind.
"Material Adverse Effect" means an effect that would cause a change in
the condition (financial or otherwise), properties, assets or prospects of an
entity having an adverse monetary effect in an amount equal to or greater than
$50,000.
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"Person" means an individual or a corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity.
"Reorganization" means the acquisition of the assets of one or more of
Acquired Funds by the corresponding Acquiring Fund or Funds with which it or
they will combine in consideration of the assumption by the Acquiring Fund or
Funds of all of the liabilities of the Acquired Fund or Funds and the issuance
by JHVST of Acquiring Fund Shares directly to Acquired Fund Shareholders as
described in this Agreement, and the termination of each such Acquired Fund's
status as a designated series of shares of JHVST.
"Required Shareholder Vote" shall have the meaning set forth in Section
3.17 of this Agreement.
"Return" means any return, report or form or any attachment thereto
required to be filed with any taxing authority.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and all
rules and regulations adopted pursuant thereto.
"Tax" means any tax or similar governmental charge, impost or levy
(including income taxes, alternative minimum tax and estimated tax, franchise
taxes, transfer taxes or fees, sales taxes, use taxes, gross receipts taxes,
value added taxes, employment taxes, excise taxes, ad valorem taxes, property
taxes, withholding taxes, payroll taxes, minimum taxes, or windfall profit
taxes), together with any related penalties, fines, additions to tax or
interest, imposed by the United States or any state, county, local or foreign
government or subdivision or agency thereof.
ARTICLE 2 TRANSFER OF ASSETS
SECTION 2.1 Reorganization.
At the Effective Time, all of the assets of each Acquired Fund shall be
delivered to the Custodian for, or transferred on JHVST's books and records to,
the account of the corresponding Acquiring Fund in exchange for the assumption
by the Acquiring Fund of all of the liabilities of any kind of the Acquired Fund
and delivery by JHVST directly to the holders of record as of the Effective Time
of the issued and outstanding shares of the Acquired Fund (including, if
applicable, fractional shares rounded to the nearest thousandth) of a number of
Acquiring Fund shares (including, if applicable, fractional shares rounded to
the nearest thousandth), having an aggregate net asset value equal to the net
value of the assets of the Acquired Fund so transferred, assigned and delivered,
all determined and adjusted as provided in Section 2.2 below. The obligation to
deliver and transfer assets as set forth in this Section 2.1 shall be satisfied
only if the Acquiring Fund receives good and marketable title to such assets
free and clear of all Liens. The Acquired Funds and their Corresponding
Acquiring Funds are as follows:
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Acquired Fund Corresponding Acquiring Fund
------------- ----------------------------
Large Cap Value COREK II Fund Large Cap Value COREK Fund
Large/Mid Cap Value II Fund Large/Mid Cap Value Fund
Active Bond II Fund Active Bond Fund
Aggressive Balanced Fund Managed Fund
Mid Cap Bond Fund Growth & Income Fund
SECTION 2.2 Computation of Net Asset Value.
(a) The net asset value of Acquiring Fund Shares, and the net value of
the assets of the corresponding Acquired Fund, shall be determined as of the
Effective Time.
(b) The net asset value of Acquiring Fund Shares shall be computed in
accordance with the policies and procedures of the issuing Acquiring Fund as
described in the JHVST Registration Statement.
(c) The net value of the assets of an Acquired Fund to be transferred
to an Acquiring Fund pursuant to this Agreement shall be computed in accordance
with the policies and procedures of the Acquired Fund as described in the JHVST
Registration Statement.
(d) All computations of value regarding the net assets of an Acquired
Fund and the net asset value of the corresponding Acquiring Fund Shares to be
issued pursuant to this Agreement shall be made by JHVST and its service
providers in the customary manner used in computing those Funds' net asset
values each day. JHVST agrees to use commercially reasonable efforts to resolve
any material differences, as between the Funds, in the prices of portfolio
securities determined in accordance with their respective pricing policies and
procedures.
SECTION 2.3 Valuation.
The net assets of an Acquired Fund and the net asset value per share of the
corresponding Acquiring Fund Shares shall be valued as of the Effective Time.
The share transfer books of the Acquired Fund will be permanently closed as of
the Effective Time, and only requests for the redemption of shares of the
Acquired Fund received in proper form prior to the Effective Time shall be
accepted by the Acquired Fund. Purchase and redemption requests thereafter
received by the Acquired Fund shall be deemed to be purchase and redemption
requests for Acquiring Fund Shares, as applicable (assuming that the
transactions contemplated by this Agreement are consummated).
SECTION 2.4 Delivery and Transfer.
(a) Assets held by an Acquired Fund that are not already held by the
Custodian shall be delivered by JHVST to the Custodian on the Closing Date. No
later than three (3) business days preceding the Closing Date, JHVST shall
instruct the Custodian to transfer these and all other Acquired Fund assets to
the account of the Acquiring Fund as of the Effective Time. The assets so
delivered shall be duly endorsed or in other proper form for transfer in such
condition as to
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constitute a good delivery thereof, and shall be accompanied by all necessary
state stock transfer stamps, if any, or a check for the appropriate purchase
price thereof. The Acquired Fund's cash that is not already held by the
Custodian shall be delivered to the Custodian for the account of the Acquiring
Fund on the Closing Date and shall be in the form of [currency or wire transfer
in Federal funds], payable to the order of the account of the Acquiring Fund at
the Custodian.
(b) If, on the Closing Date, an Acquired Fund is unable to make
delivery in the manner contemplated by Section 2.4(a) of securities held by the
Acquired Fund for the reason that any of such securities purchased prior to the
Closing Date have not yet been delivered to the Acquired Fund or its broker,
then JHVST shall waive the delivery requirements of Section 2.4(a) with respect
to said undelivered securities if the Acquired Fund has delivered to the
Custodian by or on the Closing Date, and with respect to said undelivered
securities, executed copies of an agreement of assignment and escrow agreement
and due bills executed on behalf of said broker or brokers, together with such
other documents as may be required by JHVST or the Custodian, including brokers'
confirmation slips.
SECTION 2.5 Termination of Series.
As soon as reasonably practicable after the Closing Date, the status of an
Acquired Fund as a designated series of shares of JHVST shall be terminated;
provided, however, that the termination of the status of the Acquired Fund as a
series of shares of JHVST shall not be required if its Reorganization shall not
have been consummated.
SECTION 2.6 Issuance of Acquiring Fund Shares.
At the Effective Time, the Acquired Fund Shareholders of record as of the
Effective Time holding Acquired Fund Shares shall be issued that number of full
and fractional shares of the corresponding Acquiring Fund having a net asset
value equal to the net asset value of the Acquired Fund Shares held by the
Acquired Fund Shareholder at the Effective Time. All issued and outstanding
shares of beneficial interest in the Acquired Fund shall thereupon be canceled
on the books of JHVST. JHVST shall provide instructions to Xxxx Xxxxxxx, as the
transfer agent of JHVST, with respect to the Acquiring Fund Shares to be issued
to Acquired Fund Shareholders. Xxxx Xxxxxxx shall record on JHVST's books the
ownership of Acquiring Fund Shares by Acquired Fund Shareholders and shall
forward a confirmation of such ownership to the Acquired Fund Shareholders. No
redemption or repurchase of such shares credited to former Acquired Fund
Shareholders in respect of the Acquired Fund shares represented by any
unsurrendered share certificates shall be permitted until such certificates have
been surrendered to JHVST for cancellation, or if such certificates are lost or
misplaced, until lost certificate affidavits have been executed and delivered to
JHVST.
SECTION 2.7 Investment Securities.
On or prior to the Closing Date, each Acquired Fund shall deliver a list setting
forth the securities the Acquired Fund then owns together with the respective
Federal income tax bases thereof. The Acquired Fund shall provide on or before
the Closing Date, detailed tax basis accounting records for each security to be
transferred to the Acquiring Fund pursuant to this
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Agreement. Such records shall be prepared in accordance with the requirements
for specific identification tax lot accounting and clearly reflect the bases
used for determination of gain and loss realized on the sale of any security
transferred to the Acquiring Fund hereunder. Such records shall be made
available by the Acquired Fund prior to the Closing Date for inspection by the
Treasurer (or his designee) or the auditors of the Acquiring Fund upon
reasonable request.
SECTION 2.8 Liabilities.
Each Acquired Fund shall use reasonable best efforts to ensure that it has no
liabilities outstanding as of the Effective Time, other than such liabilities as
are ordinary and customary in connection with its day-to-day operations and are
properly reflected on its books and records.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF JHVST ON BEHALF OF EACH ACQUIRED
FUND AND EACH ACQUIRING FUND
JHVST, on behalf of each Acquired Fund and each Acquiring Fund (the "Funds")
represents and warrants that:
SECTION 3.1 Organization; Authority.
JHVST is duly organized, validly existing and in good standing as a business
trust under Massachusetts law, with all requisite trust power and authority to
enter into this Agreement and perform its obligations hereunder.
SECTION 3.2 Registration and Regulation of JHVST; Compliance.
JHVST is duly registered with the SEC as an investment company under the
Investment Company Act, and, to the extent legally required, all Fund Shares
which have been or are being offered for sale have been duly registered under
the Securities Act and have been duly registered or qualified under the
securities laws of each state or other jurisdiction in which such shares have
been or are being offered for sale, and no action has been taken by JHVST to
revoke or rescind any such registration or qualification. The Funds are in
compliance in all material respects with all applicable laws, rules and
regulations, including, without limitation, the Investment Company Act, the
Securities Act, the Exchange Act and all applicable state securities laws. The
Funds are in compliance in all material respects with the investment policies
and restrictions applicable to them set forth in the JHVST Registration
Statement currently in effect. The values of the net assets of the Funds are
determined using portfolio valuation methods that comply in all material
respects with the requirements of the Investment Company Act and the policies of
the Funds, and all purchases and redemptions of Fund Shares have been effected
at the net asset value per share calculated in such manner.
SECTION 3.3 Books, Records and Financial Statements.
The books of account and related records of each Fund fairly reflect in
reasonable detail its assets, liabilities and transactions in accordance with
generally accepted accounting principles
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applied on a consistent basis. The audited financial statements for the fiscal
year ended December 31, 2000 and prior years of each Fund contained in the JHVST
Registration Statement (the "Fund Financial Statements") present fairly in all
material respects the financial position of the respective Funds as of the dates
indicated and the results of operations and changes in net assets for those
periods in accordance with generally accepted accounting principles applied on a
consistent basis for those periods.
SECTION 3.4 No Material Adverse Changes; Contingent Liabilities.
Since December 31, 2000, no material adverse change has occurred in the
financial condition, results of operations, business, assets or liabilities of
any Fund or the status of any Fund as a regulated investment company under the
Code, other than changes resulting from any change in general conditions in the
financial or securities markets or the performance of any investments made by
the Fund or occurring in the ordinary course of business of the Fund or JHVST.
There are no contingent liabilities of any Fund not disclosed in the Fund
Financial Statements which are required to be therein disclosed in accordance
with generally accepted accounting principles.
SECTION 3.5 Fund Shares; Business Operations.
(a) All Fund Shares that have been (or are being) offered have been (or
will be) duly authorized and validly issued and are fully paid and
non-assessable.
(b) No Fund has outstanding any warrants, options, convertible
securities or any other type of right pursuant to which any Person could acquire
Fund Shares, except for any right of investors to acquire Fund Shares at net
asset value in the normal course of JHVST's business as a series of an open-end
management investment company operating under the Investment Company Act.
(c) From the date it commenced operations, the Acquired Fund has
conducted its historic business within the meaning of Section 1.368-1(d)(2) of
the Income Tax Regulations under the Code. In anticipation of its
Reorganization, the Acquired Fund will not dispose of assets that, in the
aggregate, will result in less than fifty percent (50%) of its historic business
assets (within the meaning of Section 1.368-1(d) of those regulations) being
transferred to the Acquiring Fund.
SECTION 3.6 Accountants.
Ernst & Young, LLP, which has reported upon the Fund Financial Statements, are
independent public accountants as required under applicable SEC accounting
requirements.
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SECTION 3.7 Binding Obligation.
Assuming this Agreement has been duly executed and delivered by Xxxx Xxxxxxx, it
constitutes the legal, valid and binding obligation of JHVST in accordance with
its terms, except as the enforceability hereof may be limited by bankruptcy,
insolvency, reorganization or similar laws relating to or affecting creditors'
rights generally, or by general equity principles (whether applied in a court of
law or a court of equity and including limitations on the availability of
specific performance or other equitable remedies).
SECTION 3.8 Due Authorizations; No Breaches or Defaults.
The execution and delivery of this Agreement by JHVST on behalf of the Funds and
the performance by JHVST of its obligations hereunder has been duly authorized,
by all necessary corporate action on the part of JHVST, other than the Acquired
Fund Shareholders' approval of the Reorganization, and (i) will not, result in
any violation of the Agreement and Declaration of Trust or by-laws of JHVST and
(ii) will not result in a breach of any of the terms or provisions of, or
constitute (with or without the giving of notice or the lapse of time or both) a
default under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to the loss of a material benefit under, or
result in the creation or imposition of any Lien upon any property or assets of
the any Fund (except for such breaches or defaults or Liens that would not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect) under (A) any indenture, mortgage or loan agreement or any other
material agreement or instrument to which JHVST is a party or by which it may be
bound and which relates to the assets of any Fund or to which any property of
any Fund may be subject; (B) any Permit (as defined below); or (C) any existing
applicable law, rule, regulation, judgment, order or decree of any Governmental
Authority having jurisdiction over JHVST or any property of any Fund.
SECTION 3.9 Governmental Authorizations.
Other than those which shall have been obtained or made on or prior to the
Closing Date and those that must be made after the Closing Date to comply with
Section 2.5 of this Agreement, no authorization or approval or other action by,
and no notice to or filing with, any Governmental Authority will be required to
be obtained or made by JHVST, on behalf of any Fund, in connection with the due
execution and delivery by JHVST of this Agreement and the consummation by JHVST
of the transactions contemplated hereby.
SECTION 3.10 Permits.
JHVST has in full force and effect all approvals, consents, authorizations,
certificates, filings, franchises, licenses, notices, permits and rights of
Governmental Authorities (collectively, "Permits") necessary for it to conduct
its business as presently conducted as it relates to any Fund, and there has
occurred no default under any Permit, except for the absence of Permits and for
defaults under Permits the absence or default of which would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
To the knowledge of JHVST, there are no proceedings relating to the suspension,
revocation or modification of any Permit,
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except for such that would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
SECTION 3.11 No Actions, Suits or Proceedings.
(a) There is no pending action, litigation or proceeding, nor, to the
knowledge of JHVST, has any litigation been overtly threatened in writing or, if
probable of assertion, orally, against JHVST, or any Fund, before any
Governmental Authority which questions the validity or legality of this
Agreement or of the actions contemplated hereby or which seeks to prevent the
consummation of the transactions contemplated hereby, including the
Reorganization.
(b) There are no judicial, administrative or arbitration actions,
suits, or proceedings instituted or pending or, to the knowledge of JHVST,
threatened in writing or, if probable of assertion, orally, against JHVST
affecting any property, asset, interest or right of any Fund, that could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect with respect to that Fund. There are not in existence on the date
hereof any plea agreements, judgments, injunctions, consents, decrees,
exceptions or orders that were entered by, filed with or issued by Governmental
Authority relating to JHVST's conduct of the business of any Fund affecting in
any significant respect the conduct of such business. JHVST is not, and has not
been, to the knowledge of JHVST, the target of any investigation by the SEC or
any state securities administrator with respect to its conduct of the business
of any Fund.
SECTION 3.12 Contracts.
Neither JHVST nor any Fund is in default under any contract, agreement,
commitment, arrangement, lease, insurance policy or other instrument to which it
is a party and which involves or affects the assets of any Fund, by which the
assets, business, or operations of a Fund may be bound or affected, or under
which it or the assets, business or operations of a Fund receives benefits, and
which default could reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect, and, to the knowledge of JHVST, there has not
occurred any event that, with the lapse of time or the giving of notice or both,
would constitute such a default.
SECTION 3.13 Properties and Assets.
Each Fund had good and marketable title to all properties and assets reflected
in the Fund Financial Statements as owned by it, free and clear of all Liens,
except as described in the Fund Financial Statements. None of any Fund's assets
are subject to any impairment of title or lien that has not been incurred in the
regular course of the Fund's investment operations or that is not of a type
described in the Fund Financial Statements.
SECTION 3.14 Taxes.
(a) Each Fund has elected to be a regulated investment company under
Subchapter M of the Code and has qualified as such for each taxable year since
inception and has at all times since inception satisfied the requirements of
Part I of Subchapter M of the Code to maintain such
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qualification. No Fund has earnings and profits accumulated in any taxable year
in which the provisions of Subchapter M of the Code did not apply to it. In
order to (i) ensure continued qualification of each Acquired Fund as a
"regulated investment company" for tax purposes and (ii) eliminate any tax
liability of the Acquired Fund arising by reason of undistributed investment
company taxable income or net capital gain, JHVST will declare on or prior to
the Closing Date to the shareholders of the Acquired Fund a dividend or
dividends that, together with all previous such dividends, shall have the effect
of distributing (A) all of the Acquired Fund's investment company taxable income
(determined without regard to any deductions for dividends paid) for the taxable
year ended December 31, 2000 and for the short taxable year beginning on January
1, 2001 and ending on the Closing Date and (B) all of the Acquired Fund's net
capital gain recognized in its taxable year ended December 31, 2000 and in such
short taxable year (after reduction for any capital loss carryover).
(b) Each Fund has timely filed all Returns required to be filed by it
and all Taxes with respect thereto have been paid, except where the failure so
to file or so to pay would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect. Adequate provision has been made
in the Fund Financial Statements for all Taxes in respect of all periods ended
on or before the date of such financial statements, except where the failure to
make such provisions would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect. No deficiencies for any Taxes have
been proposed, assessed or asserted in writing by any taxing authority against
any Fund, and no deficiency has been proposed, assessed or asserted, in writing,
where such deficiency would reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect. No waivers of the time to assess
any such Taxes are outstanding; nor are any written requests for such waivers
pending, and no Returns of either Fund are currently being or have been audited
with respect to income taxes or other Taxes by any Federal, state, local or
foreign Tax authority.
(c) The fiscal year of no Fund has been changed for tax purposes since
the date on which it commenced operations.
(d) There is no intercorporate indebtedness existing between an
Acquiring Fund and the corresponding Acquired Fund that was issued, acquired, or
will be settled at a discount.
(e) The fair market value of the assets of an Acquired Fund transferred
to the corresponding Acquiring Fund will equal or exceed the sum of the
liabilities assumed by the Acquiring Fund, plus the amount of liabilities, if
any, to which the transferred assets are subject.
(f) Neither any Acquired Fund nor any Acquiring Fund is under the
jurisdiction of a court in a United States Code Title 11 or similar case within
the meaning of Section 368(a)(3)(A) of the Code.
(g) Immediately before the Reorganization, not more than 25 percent of
the value of the total assets of each Acquired Fund will be invested in the
stock or securities of any one issuer, and not more than 50 percent of the value
of the Acquired Fund will be invested in the stock or securities of five or
fewer issuers.
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SECTION 3.15 Benefit and Employment Obligations.
No Fund has any obligation to provide any post-retirement or post-employment
benefit to any Person, including but not limited to under any Benefit Plan, and
no Fund has any obligation to provide unfunded deferred compensation or other
unfunded or self-funded benefits to any Person.
SECTION 3.16 Brokers.
No broker, finder or similar intermediary has acted for or on behalf of JHVST in
connection with this Agreement or the transactions contemplated hereby, and no
broker, finder, agent or similar intermediary is entitled to any broker's,
finder's or similar fee or other commission in connection therewith based on any
agreement, arrangement or understanding with JHVST or any action taken by it.
SECTION 3.17 Voting Requirements.
The vote of a majority of the shares of each Acquired Fund cast at a meeting at
which a quorum is present (the "Required Shareholder Vote") is the only vote of
the holders of any class or series of shares of beneficial interest in the
Acquired Fund necessary to approve the Reorganization.
SECTION 3.18 State Takeover Statutes.
No state takeover statute or similar statute or regulation applies or purports
to apply to the Reorganization, this Agreement or any of the transactions
contemplated by this Agreement.
SECTION 3.19 Books and Records.
The books and records of JHVST relating to the Funds, reflecting, among other
things, the purchase and sale of Acquired Fund Shares, the number of issued and
outstanding shares owned by the Acquired Fund Shareholders and the state or
other jurisdiction in which such shares were offered and sold, are complete and
accurate in all material respects.
SECTION 3.20 Prospectus and Statement of Additional Information.
The current prospectus and statement of additional information for each Fund as
of the date on which it was issued did not contain, and as supplemented by any
supplement thereto that has been duly filed with the SEC, do 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 not misleading.
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SECTION 3.21 No Distribution.
No Acquiring Fund Shares are being acquired for the purpose of any distribution
thereof, other than in accordance with the terms of this Agreement.
SECTION 3.22 Liabilities of the Acquired Funds.
The liabilities of each Acquired Fund that are to be assumed by the
corresponding Acquiring Fund in connection with the Reorganization, or to which
the assets of the Acquired Fund to be transferred in the Reorganization are
subject, were incurred by the Acquired Fund in the ordinary course of its
business. The fair market value of the assets of the Acquired Fund to be
transferred to the Acquiring Fund in the Reorganization will equal or exceed the
sum of the liabilities to be assumed by the Acquiring Fund plus the amount of
liabilities, if any, to which such transferred assets will be subject.
SECTION 3.23 Value of Shares.
The fair market value of Acquiring Fund Shares received by Acquired Fund
Shareholders in the Reorganization will be approximately equal to the fair
market value of the corresponding Acquired Fund Shares constructively
surrendered in exchange therefor.
SECTION 3.24 Expenses.
Each Fund will pay its properly allocable expenses attributable to performing
its functions in connection with this Agreement and the Reorganization. The
Acquired Fund Shareholders will pay their own expenses incurred in connection
with this agreement and the Reorganization.
SECTION 3.25 Consideration for Shares.
No consideration other than the Acquiring Fund Shares (and the Acquiring Fund's
assumption of the corresponding Acquired Fund's liabilities, including for this
purpose all liabilities to which the assets of the Acquired Fund are subject)
will be issued in exchange for the assets of an Acquired Fund acquired by the
Acquiring Fund in connection with the Reorganization.
SECTION 3.26 Representations Concerning the Reorganization.
(a) JHVST has no plan or intention to reacquire any of the Acquiring
Fund Shares issued in the Reorganization, except to the extent that an Acquiring
Fund is required by the Investment Company Act to redeem any of its shares
presented for redemption at net asset value in the ordinary of its business as
an open-end, management investment company.
(b) No Acquiring Fund has any plan or intention to sell or otherwise
dispose of any of the assets of the corresponding Acquired Fund acquired in the
Reorganization, other than in the ordinary course of its business and to the
extent necessary to maintain its status as a "regulated investment company"
under the Code.
13
(c) Following the Reorganization, each Acquiring Fund will continue the
"historic business" (within the meaning of Section 1.368-1(d) of the Income Tax
Regulations under the Code) of the corresponding Acquired Fund from which the
Acquiring Fund acquired assets in the Reorganization or use a significant
portion of the Acquired Fund's historic business assets in its business.
(d) Immediately before the Reorganization, not more than 25 percent of
the value of the total assets of an Acquiring Fund will be invested in the stock
or securities of any one issuer, and not more than 50 percent of the value of
the total assets of the Acquiring Fund will be invested in the stock or
securities of five or fewer issuers.
SECTION 3.27 Registration of Acquiring Fund Shares.
(a) On the date hereof, the shares of beneficial interest of JHVST are
divided into 33 portfolios, including the Acquiring and the Acquired Funds.
Under its Declaration of Trust, JHVST is authorized to issue an unlimited number
of Shares and, from time to time, combine Shares without thereby changing the
proportionate beneficial interests in JHVST.
(b) The Acquiring Fund Shares to be issued pursuant to Section 2.6 will
on the Closing Date be duly registered under the Securities Act by a
Registration Statement on Form N-14 of JHVST then in effect.
(c) The Acquiring Fund Shares to be issued pursuant to Section 2.6 are
duly authorized and on the Closing Date will be validly issued and fully paid
and non-assessable and will conform to the description thereof contained in the
Registration Statement on Form N-14 then in effect.
(d) The combined proxy statement/prospectus (the "Combined Proxy
Statement/Prospectus") forming a part of JHVST's Registration Statement on Form
N-14 shall be furnished to Acquired Fund Shareholders entitled to vote at any
Acquired Fund Shareholders Meeting. The Combined Proxy Statement/Prospectus and
related Statement of Additional Information of the Acquiring Fund, when they
become effective, shall conform to the applicable requirements of the Securities
Act and the Investment Company Act and shall not 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.
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF XXXX XXXXXXX
Xxxx Xxxxxxx represents and warrants as follows:
14
SECTION 4.1 Organization; Authority.
Xxxx Xxxxxxx is a corporation duly organized, validly existing and in good
standing under Massachusetts law, with all requisite corporate power and
authority to enter into this Agreement and perform its obligations hereunder.
SECTION 4.2 Continuity of Ownership.
There is no plan or intention by the shareholders of any Acquired Fund to redeem
or otherwise dispose of a number of the Acquiring Fund Shares received by them
in connection with the Reorganization that would reduce the Acquired Fund
Shareholders' ownership of voting stock of the Acquiring Fund to a number of
shares having a value, as of the Closing Date, of less than fifty percent (50%)
of the value of all of the formerly outstanding shares of the Acquired Fund as
of the same date. For purposes of this representation, any Acquired Fund Shares
exchanged for cash or other property or exchanged for cash in lieu of fractional
shares of the Acquiring Fund will be treated as outstanding Acquired Fund Shares
on the date of the Reorganization. Moreover, Acquired Fund Shares and Acquiring
Fund Shares held by Acquired Fund Shareholders and otherwise sold, redeemed or
disposed of prior or subsequent to the Reorganization will be considered in
making this representation, except for Acquired Fund Shares or Acquiring Fund
Shares which have been, or will be, redeemed by the Acquired Fund or the
Acquiring Fund in the ordinary course of its business as a series of an
open-end, management investment company under the Investment Company Act.
SECTION 4.3 Binding Obligation.
Assuming this Agreement has been duly executed and delivered by JHVST, it
constitutes the legal, valid and binding obligation of Xxxx Xxxxxxx, in
accordance with its terms, except as the enforceability hereof may be limited by
bankruptcy, insolvency, reorganization or similar laws relating to or affecting
creditors' rights generally, or by general equity principles (whether applied in
a court or law or a court of equity and including limitations on the
availability of specific performance or other equitable remedies).
15
SECTION 4.4 Due Authorization; No Breaches or Defaults.
The execution and delivery of this Agreement by Xxxx Xxxxxxx and performance by
Xxxx Xxxxxxx of its obligations hereunder have been duly authorized by all
necessary corporate action on the part of Xxxx Xxxxxxx and (i) do not, and on
the Closing Date will not, result in any violation of the Certificate of
Incorporation or by-laws of Xxxx Xxxxxxx and (ii) do not, and on the Closing
Date will not, result in a breach of any of the terms or provisions of, or
constitute (with or without the giving of notice or the lapse of time or both) a
default under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to the loss of a material benefit under, or
result in the creation or imposition of any Lien upon any property or assets of
Xxxx Xxxxxxx (except for such breaches or defaults or Liens that would not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect) under (A) any indenture, mortgage or loan agreement or any other
material agreement or instrument to which JHVST is a party or by which it may be
bound and which relates to the assets of Xxxx Xxxxxxx or to which any properties
of Xxxx Xxxxxxx may be subject; (B) any Permit; or (C) any existing applicable
law, rule, regulation, judgment, order or decree of any Governmental Authority
having jurisdiction over Xxxx Xxxxxxx or any of its property.
SECTION 4.5 Governmental Authorizations.
Other than those which shall have been obtained or made on or prior to the
Closing Date, no authorization or approval or other action by, and no notice to,
or filing with, any Governmental Authority will be required to be obtained or
made by Xxxx Xxxxxxx in connection with the due execution and delivery by Xxxx
Xxxxxxx of this Agreement and the consummation by Xxxx Xxxxxxx of the
transactions contemplated hereby.
SECTION 4.6 Permits.
Xxxx Xxxxxxx has in full force and effect all Permits necessary for it to
conduct its business as presently conducted as it relates to the Reorganization,
and there has occurred no default under any Permit, except for the absence of
Permits and for defaults under Permits the absence or default of which would not
reasonably be expected, individually or in the aggregate, to adversely affect
the interest of any other party to the Reorganization. To the knowledge of Xxxx
Xxxxxxx there are no proceedings relating to the suspension, revocation or
modification of any Permit, except for such that would not reasonably be
expected, individually or in the aggregate, to adversely affect the interest of
any other party to the Reorganization.
SECTION 4.7 No Actions, Suits or Proceedings.
(a) There is no pending action, suit or proceeding, nor, to the
knowledge of Xxxx Xxxxxxx, has any litigation been threatened in writing or, if
probable of assertion, orally, against Xxxx Xxxxxxx before any Governmental
Authority which questions the validity or legality of this Agreement or of the
transactions contemplated hereby, or which seeks to prevent the consummation of
the transactions contemplated hereby, including the Reorganization.
16
(b) There are no judicial, administrative or arbitration actions,
suits, or proceedings instituted or pending or, to the knowledge of Xxxx
Xxxxxxx, threatened in writing or, if probable of assertion, orally, against
Xxxx Xxxxxxx, affecting any property, asset, interest or right of Xxxx Xxxxxxx
that could reasonably be expected, individually or in the aggregate, to
adversely affect the interests of any other party to the Reorganization. There
are not in existence on the date hereof any plea agreements, judgments,
injunctions, consents, decrees, exceptions or orders that were entered by, filed
with or issued by any Governmental Authority relating to Xxxx Xxxxxxx'x conduct
of its business that could reasonably be expected, individually or in the
aggregate, to adversely affect the interests of any other party to the
Reorganization. Xxxx Xxxxxxx is not, and has not been, to the knowledge of Xxxx
Xxxxxxx, the target of any investigation by the SEC or any state securities
administrator with respect to its conduct of the business of JHVST.
SECTION 4.8 Brokers.
No broker, finder or similar intermediary has acted for or on behalf of Xxxx
Xxxxxxx in connection with this Agreement or the transactions contemplated
hereby, and no broker, finder, agent or similar intermediary is entitled to any
broker's, finder's or similar fee or other commission in connection therewith
based on any agreement, arrangement or understanding with Xxxx Xxxxxxx or any
action taken by it.
SECTION 4.9 Tax-Free Reorganization.
Following a review of the proposed Reorganization by tax specialists in its Law
Department, Xxxx Xxxxxxx believes that the combination of the Acquired Fund and
the Acquiring Fund as contemplated by this Agreement will be a tax-free
reorganization under the Code.
ARTICLE 5 COVENANTS
SECTION 5.1 Conduct of Business.
(a) From the date of this Agreement up to and including the Closing
Date (or, if earlier, the date upon which this Agreement is terminated pursuant
to Article 7), JHVST shall conduct the business of the Acquired Fund only in the
ordinary course and substantially in accordance with past practices, and shall
use its reasonable best efforts to preserve intact its business organization and
material assets and maintain the rights, franchises and business and customer
relations necessary to conduct the business of the Acquired Fund in the ordinary
course in all material respects.
(b) From the date of this Agreement up to and including the Closing
Date (or, if earlier, the date upon which this Agreement is terminated pursuant
to Article 7), JHVST shall conduct the business of the Acquiring Fund only in
the ordinary course and substantially in accordance with past practices, and
shall use its reasonable best efforts to preserve intact its business
organization and material assets and maintain the rights, franchises and
business relations necessary to conduct the business operations of the Acquiring
Fund in the ordinary course in all material respects.
17
SECTION 5.2 Expenses.
Xxxx Xxxxxxx shall bear, or arrange for another person other than JHVST or any
Fund to bear, any expenses incurred in connection with this Agreement and the
Reorganization and other transactions contemplated hereby that are not a Fund's
properly allocable expenses attributable to performing the Fund's functions in
connection with this Agreement and the Reorganization.
SECTION 5.3 Further Assurances.
Each of the parties hereto shall execute such documents and other papers and
perform such further acts as may be reasonably required to carry out the
provisions hereof and the transactions contemplated hereby. Each such party
shall, on or prior to the Closing Date, use its reasonable best efforts to
fulfill or obtain the fulfillment of the conditions precedent to the
consummation of the Reorganization, including the execution and delivery of any
documents, certificates, instruments or other papers that are reasonably
required for the consummation of the Reorganization.
SECTION 5.4 Notice of Events.
Each of JHVST and Xxxx Xxxxxxx shall give prompt notice to the other of (a) the
occurrence or nonoccurrence of any event of which it obtains knowledge and which
would be likely to result in any of the conditions specified in (i) in the case
of an Acquired Fund, Sections 6.1 and 6.2 or (ii) in the case of an Acquiring
Fund, Sections 6.2 and 6.3, not being satisfied so as to permit the consummation
of the Reorganization and (b) any material failure or expected material on its
part to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder; provided, however, that the delivery
of any notice pursuant to this Section 5.4 shall not limit or otherwise affect
the remedies available hereunder to any party.
SECTION 5.6 Access to Information.
(a) Each Acquired Fund will, during regular business hours and on
reasonable prior notice, allow the corresponding Acquiring Fund and its
authorized representatives reasonable access to the books and records of the
Acquired Fund pertaining to the assets of the Acquired Fund and to officers of
the Acquired Fund knowledgeable thereof; provided, however, that any such access
shall not significantly interfere with the business or operations of JHVST.
(b) Each Acquiring Fund will, during regular business hours and on
reasonable prior notice, allow the corresponding Acquired Fund and its
authorized representatives reasonable access to the books and records of the
Acquiring Fund pertaining to the assets of the Acquiring Fund and to officers of
JHVST knowledgeable thereof; provided, however, that any such access shall not
significantly interfere with the business or operations of JHVST.
18
SECTION 5.7 Consents, Approvals and Filings.
Each of JHVST and Xxxx Xxxxxxx shall make all filings required of it, as soon as
reasonably practicable, including those required under the Securities Act, the
Exchange Act, the Investment Company Act and the Advisers Act, in order to
facilitate prompt consummation of the Reorganization and any other actions
contemplated by this Agreement. In addition, each of JHVST and Xxxx Xxxxxxx
shall use its reasonable best efforts (i) to comply as promptly as reasonably
practicable with all requirements of Governmental Authorities applicable to it
in relation to the Reorganization and any other actions contemplated herein and
(ii) to obtain as promptly as reasonably practicable all necessary permits,
orders or other consents of Governmental Authorities and consents of all third
parties required of it for the consummation of the Reorganization and any other
actions contemplated herein.
SECTION 5.8 Submission of Reorganization to Shareholders.
JHVST shall take all action necessary in accordance with applicable law and its
Agreement and Declaration of Trust and by-laws to convene the Acquired Fund
Shareholders Meeting to consider approval of the Reorganization. JHVST shall use
its reasonable best efforts to hold the Acquired Fund Shareholders Meeting as
soon as practicable after the date hereof. Xxxx Xxxxxxx shall take all action
necessary to offer holders of variable annuity contracts and variable life
insurance policies appropriate opportunity to give voting instructions
concerning approval of the Reorganization.
ARTICLE 6 CONDITIONS PRECEDENT TO THE REORGANIZATION
SECTION 6.1 Conditions Precedent to JHVST's Obligations With Respect to the
Acquired Funds.
The obligation of JHVST to consummate the Reorganization on behalf of an
Acquired Fund is subject to the satisfaction, at or prior to the Closing Date,
of the following conditions, any of which may be waived in writing by JHVST and
Xxxx Xxxxxxx.
(a) The representations and warranties of JHVST on behalf of the
corresponding Acquiring Fund participating in the Reorganization set forth in
this Agreement shall be true and correct in all material respects as of the date
of this Agreement and as of the Closing Date as though all such representations
and warranties had been made as of the Closing Date.
(b) JHVST shall have complied with and satisfied in all material
respects all agreements and conditions that this Agreement requires JHVST, on
behalf of the Acquiring Fund, to comply with or satisfy at or prior to the
Closing Date.
SECTION 6.2 Conditions Precedent to JHVST's Obligations With Respect to All
Funds.
The obligations of JHVST on behalf of any Acquired Fund or any Acquiring Fund to
consummate the Reorganization are subject to the satisfaction, at or prior to
the Closing Date, of the following conditions (in addition to any other
conditions applicable to a Fund as set forth in
19
Section 6.1 or 6.3), any of which may be waived in writing by JHVST and (except
for (b) and (d) below) Xxxx Xxxxxxx, but only if and to the extent that such
waiver is made with respect to both an Acquired Fund and its corresponding
Acquiring Fund:
(a) All representations and warranties of JHVST (other than those
referred to in Section 6.1(a) above or Section 6.3(a) below) shall be true and
correct in all material respects as of the date of this Agreement and as of the
Closing Date as though all such representations and warranties had been made as
of the Closing Date.
(b) The representations and warranties of Xxxx Xxxxxxx set forth in
this Agreement shall be true and correct in all material respects as of the date
of this Agreement and as of the Closing Date as though all such representations
and warranties had been made as of the Closing Date.
(c) JHVST shall have complied with and satisfied in all material
respects all agreements and conditions that this Agreement requires JHVST to
comply with or satisfy (other than those referred to in Section 6.1(b) above or
Section 6.3(b) below) at or prior to the Closing Date.
(d) Xxxx Xxxxxxx shall have complied with and satisfied in all material
respects all agreements and conditions that this Agreement requires Xxxx Xxxxxxx
to comply with or satisfy at or prior to the Closing Date.
(e) The Reorganization shall have been approved by the shareholders of
the Acquired Fund on the record date by the Required Shareholder Vote.
(f) The assets of the Acquired Fund to be acquired by the corresponding
Acquiring Fund shall constitute at least 90% of the fair market value of the net
assets and at least 70% of the fair market value of the gross assets held by the
Acquired Fund immediately prior to the Reorganization. For purposes of this
Section 6.2(f), assets used by the Acquired Fund to pay the expenses it incurs
in connection with this Agreement and the Reorganization and to effect all
shareholder redemptions and distributions (other than regular, normal dividends
and regular, normal redemptions pursuant to the Investment Company Act, and not
in excess of the requirements of Section 852 of the Code, occurring in the
ordinary course of the Acquired Fund's business as a series of an open-end
management investment company) after the date of this Agreement shall be
included as assets of the Acquired Fund held immediately prior to the
Reorganization.
(g) The Registration Statement on Form N-14 filed by JHVST with respect
to the Acquiring Fund Shares to be issued to Acquired Fund Shareholders in
connection with the Reorganization shall have become effective under the
Securities Act, and no stop order suspending the effectiveness thereof shall
have been issued and, to the best knowledge of the parties hereto, no
investigation or proceeding for that purpose shall have been instituted or be
pending, threatened or contemplated under the Securities Act.
(h) The Acquiring Fund and the corresponding Acquired Fund each will
have satisfied the investment diversification requirements of Section 817(h) of
the Code for all taxable quarters since its inception, including the last short
taxable period of the Acquired Fund ending
20
on the Closing Date and the taxable quarter of the Acquiring Fund that includes
the Closing Date.
(i) JHVST shall have received a certificate from Xxxx Xxxxxxx, in
substantially the form attached hereto as Exhibit I.
SECTION 6.3 Conditions Precedent to JHVST's Obligations With Respect to the
Acquiring Fund.
The obligation of JHVST to consummate the Reorganization on behalf of any
Acquiring Fund is subject to the satisfaction, at or prior to the Closing Date,
of the following conditions, any of which may be waived in writing by JHVST and
Xxxx Xxxxxxx.
(a) The representations and warranties of JHVST on behalf of the
corresponding Acquired Fund participating in the Reorganization set forth in
this Agreement shall be true and correct in all material respects as of the date
of this Agreement and as of the Closing Date with the same effect as though all
such representations and warranties had been made as of the Closing Date.
(b) JHVST shall have complied with and satisfied in all material
respects all agreements and conditions that this Agreement requires JHVST, on
behalf of the Acquired Fund, to comply with or satisfy at or prior to the
Closing Date.
ARTICLE 7 TERMINATION OF AGREEMENT
SECTION 7.1 Termination.
(a) This Agreement may be terminated as to any Acquired Fund and its
corresponding Acquiring Fund on or prior to the Closing Date at the election of
any party:
(i) if the applicable Closing Date shall not be on or before the date
set out under "Closing Date" in Section 1.1, or such later date as the parties
hereto may agree upon, unless the failure to consummate the Reorganization is
the result of a willful and material breach of this Agreement by the party
seeking to terminate it; or
(ii) by written agreement of each party to this Agreement.
(b) a termination pursuant to Section 7.1(a)(i) above shall be
effectuated by the delivery by the terminating party to the other party of a
written notice of such termination.
SECTION 7.2 Survival After Termination.
If this Agreement is terminated as to any Acquired Fund and its corresponding
Acquiring Fund in accordance with Section 7.1 hereof and the Reorganization is
not consummated, this Agreement shall become void and of no further force and
effect as to those Funds, except for the provisions of Section 5.3.
21
ARTICLE 8 MISCELLANEOUS
SECTION 8.1 Survival of Warranties and Covenants.
The warranties and covenants in this Agreement or in any certificate or
instrument delivered pursuant to this Agreement shall survive the consummation
of the transactions contemplated hereunder.
SECTION 8.2 Governing Law.
This Agreement shall be construed and interpreted according to the laws of the
Commonwealth of Massachusetts applicable to contracts made and to be performed
wholly within such commonwealth.
SECTION 8.3 Binding Effect, Persons Benefiting, No Assignment.
This Agreement shall inure to the benefit of and be binding upon the parties
hereto and the respective successors and assigns of the parties. Nothing in this
Agreement is intended or shall be construed to confer upon any Person other than
the parties hereto and their respective successors and permitted assigns any
right, remedy or claim under or by reason of this Agreement or any part hereof.
Without the prior written consent of the parties hereto, this Agreement may not
be assigned by any of the parties hereto.
SECTION 8.4 Obligations of JHVST (with respect to the Acquiring Fund and the
Acquired Fund).
(a) JHVST and Xxxx Xxxxxxx (with respect to each Acquiring Fund) hereby
acknowledge and agree that each Acquiring Fund is a separate investment
portfolio of JHVST, that JHVST (with respect to each Acquiring Fund) is
executing this Agreement on behalf of that Acquiring Fund, and that any amounts
payable by JHVST under or in connection with this Agreement and that arise out
of that Acquiring Fund's obligations or performance of its obligations hereunder
shall be payable solely from the revenues and assets of that Acquiring Fund.
JHVST and Xxxx Xxxxxxx (with respect to each Acquiring Fund) further acknowledge
and agree that (with respect to each Acquiring Fund) this Agreement has been
executed by a duly authorized officer of JHVST in his or her capacity as an
officer of JHVST intending to bind JHVST as provided herein, and that no
officer, trustee or shareholder of JHVST shall be personally liable for the
liabilities or obligations of JHVST incurred hereunder.
(b) JHVST and Xxxx Xxxxxxx (with respect to each Acquired Fund) hereby
acknowledge and agree that each Acquired Fund is a separate investment portfolio
of JHVST, that JHVST (with respect to each Acquired Fund) is executing this
Agreement on behalf of that Acquired Fund and that any amounts payable by JHVST
under or in connection with this Agreement and that arise out of that Acquired
Fund's obligations or performance of its obligations hereunder shall be payable
solely from the revenues and assets of that Acquired Fund. JHVST and Xxxx
Xxxxxxx further acknowledge and agree that (with respect to each Acquired Fund)
this
22
Agreement has been executed by a duly authorized officer of JHVST in his or
her capacity as an officer of JHVST intending to bind JHVST as provided herein,
and that no officer, trustee or shareholder of JHVST shall be personally liable
for the liabilities of JHVST incurred hereunder.
SECTION 8.5 Amendments.
This Agreement may not be amended, altered or modified except by a written
instrument executed by the parties.
SECTION 8.6 Enforcement.
The parties agree that irreparable damage would occur in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any court of the United States or any state having jurisdiction, in
addition to any other remedy to which they are entitled at law or in equity.
SECTION 8.7 Interpretation.
When a reference is made in this Agreement to any Section, Exhibit or Schedule,
such reference shall be to a Section of, an Exhibit of or a Schedule to, this
Agreement unless otherwise indicated. Any table of contents or headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. Whenever the words
"include", "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation." Each representation and
warranty contained in Article 3 or 4 that relates to a general category of a
subject matter shall be deemed superseded by a specific representation and
warranty relating to a subcategory thereof to the extent of such specific
representation or warranty.
SECTION 8.8 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an
original and each of which shall constitute one and the same instrument.
SECTION 8.9 Entire Agreement; Schedules.
This Agreement, including any Schedules, Exhibits and certificates referred to
herein, and any documents executed by the parties simultaneously herewith or
pursuant thereto, constitute the entire understanding and agreement of the
parties with respect to the subject matter hereof and supersedes all other prior
agreements and understandings, written or oral, between the parties with respect
to such subject matter.
23
SECTION 8.10 Notices.
All notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given when delivered by hand or by
overnight courier, two days after being sent by registered mail, return receipt
requested, or when sent by telecopier (with receipt confirmed), provided that,
in the case of a telecopied notice, a copy is also sent by registered mail,
return receipt requested, or by courier, addressed as follows (or to such other
address as a party may designate by notice to the other):
(a) If to JHVST:
Xxxx Xxxxxxx Variable Series Trust I
Xxxx Xxxxxxx Place
P.O. Box 111
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxxxxx X.. Xxxxx
Fax: 000-000-0000
(b) If to Xxxx Xxxxxxx:
Xxxx Xxxxxxx Life Insurance Company
Xxxx Xxxxxxx Place
P.O. Box 111
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax: 000-000-0000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
XXXX XXXXXXX VARIABLE SERIES TRUST I
acting on behalf of its Large Cap Value CORE" II Fund, Large Cap Value CORE
Fund, Large/Mid Cap Value II Fund, Large/Mid Cap Value Fund, Active Bond II
Fund, Active Bond Fund, Aggressive Balanced Fund, Managed Fund, Mid Cap Bond
Fund, and Growth & Income Fund
By:
--------------------------------
Name:
Title:
24
XXXX XXXXXXX LIFE INSURANCE COMPANY
By:
--------------------------------
Name:
Title:
25
Exhibit I to Plan and Agreement of Reorganization
CERTIFICATE OF XXXX XXXXXXX LIFE INSURANCE COMPANY
Terms used in this Certificate have the same meaning as in the Agreement that
prescribes its delivery.
Xxxx Xxxxxxx hereby certifies that
a. Qualified officers of Xxxx Xxxxxxx have considered whether each of the
conditions precedent to consummating the Reorganization that are set forth in
Sections 6.1, 6.2, and 6.3 of the Agreement have been satisfied; and
b. John Xxxxxxx hereby certifies that all such conditions have been and are
satisfied.
XXXX XXXXXXX LIFE INSURANCE COMPANY
Date: December __, 2001 By:
-----------------------------------------
Name:
Title:
648219v1
26
