EXHIBIT 4
FORM OF
AGREEMENT AND PLAN OF
REORGANIZATION AND LIQUIDATION
AGREEMENT AND PLAN OF REORGANIZATION AND LIQUIDATION dated as of [ ], 2000
(the "Agreement"), by and between Xxx Xxxxxx Life Investment Trust, a
registered investment company, SEC File No. 811-4424 (the "Trust"), on behalf
of its series, the Xxxxxx Xxxxxxx Real Estate Securities Portfolio (the
"Acquired Portfolio"), and The Universal Institutional Funds, Inc., a
registered investment company, SEC File No. 811-7607 (the "Fund"), on behalf of
its series, the U.S. Real Estate Portfolio (the "Acquiring Portfolio").
WHEREAS, the Board of Trustees of the Trust and the Board of Directors of
the Fund have each determined that entering into this Agreement for the
Acquiring Portfolio to acquire the assets and liabilities of the Acquired
Portfolio is in the best interests of each respective party; and
WHEREAS, the parties intend that this transaction qualify as a
reorganization within the meaning of Section 368(a) of the Internal Revenue
Code of 1986, as amended (the "Code");
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the parties hereto agree to effect the transfer of all of the assets of the
Acquired Portfolio solely in exchange for (a) the assumption by the Acquiring
Portfolio of all of the liabilities of the Acquired Portfolio and (b) shares of
the Acquiring Portfolio, followed by the distribution, at the Effective Time
(as defined in Section 9 of this Agreement), of such shares of the Acquiring
Portfolio to the accounts of the holders of shares of the Acquired Portfolio on
the terms and conditions hereinafter set forth in liquidation of the Acquired
Portfolio (the "Reorganization"). For convenience: (x) the shares of the
Acquiring Portfolio which are given in exchange for the assets of the Acquired
Portfolio are referred to hereinafter as the "Acquiring Portfolio Shares"; and
(y) the shares of the Acquired Portfolio which are held in the accounts of the
holders of such shares immediately prior to the Effective Time are referred to
hereinafter as the "Acquired Portfolio Shares." The parties hereto covenant and
agree as follows:
1. Plan of Reorganization. At the effective time of the Reorganization (the
"Effective Time"), the Acquired Fund will assign, deliver and otherwise
transfer all of its assets and good and marketable title thereto, free and
clear of all liens, encumbrances and adverse claims except as provided in this
Agreement, and assign all of its liabilities as are set forth in a statement of
assets and liabilities, to be prepared as of the Effective Time (the "Statement
of Assets and Liabilities") to the Acquiring Portfolio which shall acquire all
such assets, and shall assume all such liabilities, in exchange for delivery to
the accounts of shareholders of the Acquired Portfolio by the Acquiring
Portfolio of a number of Acquiring Portfolio Shares (both full and fractional)
equivalent in net asset value to the Acquired Portfolio Shares outstanding
immediately prior to the Effective Time. The assets and liabilities of the
Acquired Portfolio, as set forth in the Statement of Assets and Liabilities
attached hereto as Exhibit A, shall be exclusively assigned to and assumed by
the Acquiring Portfolio. All debts, liabilities, obligations and duties of the
Acquired Portfolio, to the extent that they exist at or after the Effective
Time and are stated in the Statement of Assets and Liabilities, shall after the
Effective Time attach to the Acquiring Portfolio and may be enforced against
the Acquiring Portfolio to the same extent as if the same had been incurred by
the Acquiring Portfolio.
2. Transfer of Assets. The assets of the Acquired Portfolio to be acquired
by the Acquiring Portfolio shall include, without limitation, all cash, cash
equivalents, securities and receivables (including interest and dividends
receivable) as set forth in the Statement of Assets and Liabilities, as well as
any claims or rights of action or rights to register shares under applicable
securities laws, any books or records of the Acquired Portfolio and other
property owned by the Acquired Portfolio at the Effective Time.
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3. Liquidation and Dissolution of the Acquired Portfolio. At the Effective
Time, the Acquired Portfolio will liquidate and the Acquiring Portfolio Shares
(both full and fractional) received by the accounts of the shareholders of the
Acquired Portfolio will be distributed to the shareholders of record of the
Acquired Portfolio as of the Effective Time in exchange for their respective
Acquired Portfolio Shares and in complete liquidation of the Acquired
Portfolio. Each shareholder of the Acquired Portfolio will receive a number of
Acquiring Portfolio Shares equal in net asset value to the Acquired Portfolio
Shares held by that shareholder. Such distribution and liquidation will be
accompanied by the establishment of an open account on the shareholder records
of the Acquiring Portfolio in the name of each shareholder of record of the
Acquired Portfolio and representing the respective number of Acquiring
Portfolio Shares due such shareholder. As soon as practicable after the
Effective Time, but not later than [ ], 2000, the Trust shall take all steps
as shall be necessary and proper to effect a complete termination of the
Acquired Portfolio.
4. Representations and Warranties of the Acquiring Portfolio. The Acquiring
Portfolio represents and warrants to the Acquired Portfolio as follows:
(a) Organization, Existence, etc. The Fund is duly formed and in good
standing under the laws of the state of its organization and is duly
authorized to transact business in the state of its organization. The
Acquiring Portfolio is a separate series of the Fund duly designated in
accordance with the applicable provisions of the Fund's organizational
documents. The Acquiring Portfolio is qualified to do business in all
jurisdictions in which it is required to be so qualified, except
jurisdictions in which the failure so to qualify would not have a material
adverse effect on the Acquiring Portfolio. The Acquiring Portfolio has
obtained all material federal, state and local authorizations necessary to
own all of the properties and assets and to carry on its business as now
being conducted, except authorizations which the failure so to obtain would
not have a material adverse effect on the Acquiring Portfolio.
(b) Registration as Investment Company. The Fund is registered under the
Investment Company Act of 1940, as amended (the "1940 Act") as an open-end
management investment company which offers its shares only to insurance
companies for accounts which they establish to fund variable life insurance
and variable annuity contracts and by other entities under qualified
pension and retirement plans; and such registration has not been revoked or
rescinded and is in full force and effect.
(c) Financial Statements. The audited financial statements of the Fund
relating to the Acquiring Portfolio dated as of and for the fiscal year
ending December 31, 1999 (the "Acquiring Portfolio Financial Statements"),
as delivered to the Acquired Portfolio, present fairly the financial
position of the Acquiring Portfolio as of the date thereof and the results
of operations and changes in its net assets for the periods indicated. The
Fund shall furnish to the Acquired Portfolio within five (5) business days
after the Effective Time, an unaudited statement of assets and liabilities
and the portfolio of investments and the related statements of operations
and changes in net assets as of and for the interim period ending on the
Effective Time; such financial statements will represent fairly the
financial position and portfolio of investments and the results of its
operations as of, and for the period ending on, the dates of such
statements in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved and the results
of its operations and changes in financial position for the period then
ended; and such financial statements shall be certified by the Treasurer of
the Acquiring Portfolio as complying with the requirements hereof.
(d) Shares to be Issued upon Reorganization. The Acquiring Portfolio
Shares to be issued in connection with the Reorganization have been duly
authorized and upon consummation of the Reorganization will be validly
issued, fully paid and nonassessable and will conform in all material
respects to the description thereof contained in the Acquiring Portfolio's
Prospectus.
(e) Authority Relative to this Agreement. The Fund, on behalf of the
Acquiring Portfolio, has the power to enter into this Agreement and to
carry out its obligations hereunder. The execution, delivery and
performance of this Agreement, and the consummation of the transactions
contemplated hereby, have been duly authorized by the Fund's Board of
Directors, and no other proceedings by the Fund are necessary to authorize
its officers to effectuate this Agreement and the transactions contemplated
hereby. The Acquiring
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Portfolio is not a party to or obligated under any charter, by-law,
indenture or contract provision or any other commitment or obligation, or
subject to any order or decree, which would be violated by its executing
and carrying out this Agreement.
(f) Liabilities. There are no liabilities of the Acquiring Portfolio,
whether or not determined or determinable, other than liabilities disclosed
or provided for in the Acquiring Portfolio Financial Statements, if any,
and liabilities incurred in the ordinary course of business prior to the
Effective Time or otherwise previously disclosed to the Acquired Portfolio,
none of which has been or will have been materially adverse to the
business, assets or results of operations of the Acquiring Portfolio. The
Fund's registration statement, which is on file with the Securities and
Exchange Commission ("SEC"), does not contain any untrue statement of a
material fact, nor does it omit any material statement required to be
stated therein or necessary to make the statements therein not materially
misleading.
(g) Litigation. Except as previously disclosed to the Acquired
Portfolio, there are no claims, actions, suits or proceedings pending or,
to the actual knowledge of Xxxxxx Xxxxxxx Xxxx Xxxxxx Investment Management
Inc. or the Fund, overtly threatened which would materially adversely
affect the Acquiring Portfolio or its assets or business or which would
prevent or hinder in any material respect consummation of the transactions
contemplated hereby.
(h) Contracts. Except for contracts and agreements disclosed to the
Acquired Portfolio, under which no default exists, the Acquiring Portfolio
is not a party to or subject to any material contract, debt instrument,
plan, lease, franchise, license or permit of any kind or nature whatsoever.
(i) Taxes. As of the Effective Time, all federal and other tax returns
and reports of the Acquiring Portfolio required by law to have been filed
shall have been filed, and all taxes shall have been paid so far as due, or
provision shall have been made for the payment thereof, and, to the best of
the Acquiring Portfolio's knowledge, no such return is currently under
audit and no assessment has been asserted with respect to any such return
which would materially adversely affect any of the Acquiring Portfolio or
its assets or business or which would prevent or hinder in any material
respect consummation of the transactions contemplated hereby.
(j) Shares of the Acquiring Portfolio: Registration. The Acquiring
Portfolio Shares to be issued pursuant to Section 1 hereof will be duly
registered under the Securities Act of 1933 (the "1933 Act") and all
applicable state securities laws.
(k) Absence of Changes. From the date of this Agreement through the
Effective Time, there shall not have been any change in the business,
results of operations, assets or financial condition or the manner of
conducting the business of the Acquiring Portfolio, other than changes in
the ordinary course of its business, which will have had a material adverse
effect on such business, or any pending or overtly threatened litigation,
results of operations, assets or financial condition which would materially
adversely affect any of the Acquiring Portfolio or its assets or business
or which would prevent or hinder in any material respect consummation of
the transactions contemplated hereby.
(l) Registration Statement. The Registration Statement and the
Prospectus/Proxy Statement contained therein as of the effective date of
the Registration Statement, and at all times subsequent thereto up to and
including the Effective Time, as amended or as supplemented if it shall
have been amended or supplemented, conforms and will conform, as it relates
to the Acquiring Portfolio, in all material respects, to the applicable
requirements of the applicable federal and state securities laws and the
rules and regulations of the SEC thereunder, and do not and will 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 misleading, except that no representations or warranties in this
Section apply to statements or omissions made in reliance upon and in
conformity with written information concerning the Trust or the Acquired
Portfolio furnished in writing to the Acquiring Portfolio by the Trust or
the Acquired Portfolio.
(m) Tax Qualification. The Acquiring Portfolio has qualified as a
regulated investment company within the meaning of Section 851 of the Code,
for each of its taxable years; and has satisfied the distribution
requirements imposed by Section 852 of the Code for each of its taxable
years.
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(n) Diversification Qualification. The Acquiring Portfolio has satisfied
the diversification tests set forth in Treas. Reg. Section 1.817-5 for each
of its calendar quarters.
5. Representations and Warranties of the Acquired Portfolio. The Acquired
Portfolio represents and warrants to the Acquiring Portfolio as follows:
(a) Organization, Existence, etc. The Acquired Portfolio is duly formed
and in good standing under the laws of its state of organization and is
duly authorized to transact business in its state of organization. The
Acquired Portfolio is a separate series of the Trust duly designated in
accordance with the applicable provisions of the Trust's organizational
documents. The Acquired Portfolio is qualified to do business in all
jurisdictions in which they are required to be so qualified, except
jurisdictions in which the failure so to qualify would not have a material
adverse effect on the Acquired Portfolio. The Acquired Portfolio has
obtained all material federal, state and local authorizations necessary to
own all of the properties and assets and to carry on its business and the
business thereof as now being conducted, except authorizations which the
failure to so obtain would not have a material adverse effect on the
Acquired Portfolio.
(b) Registration as Investment Company. The Trust is registered under
the 1940 Act as an open-end management investment company which offers its
shares only to insurance companies for accounts which they establish to
fund variable life insurance and variable annuity contracts and by other
entities under qualified pension and retirement plans; and such
registration has not been revoked or rescinded and is in full force and
effect.
(c) Financial Statements. The audited financial statements of the Trust
relating to the Acquired Portfolio as of and for the fiscal year ending
December 31, 1999 (the "Acquired Portfolio Financial Statements"), as
delivered to the Acquiring Portfolio, present fairly the financial position
of the Acquired Portfolio as of the date thereof, and the results of
operations and changes in its net assets for the periods indicated. The
Trust shall furnish to the Acquiring Portfolio within five (5) business
days after the Effective Time, an unaudited statement of assets and
liabilities and the portfolio of investments and the related statements of
operations and changes in net assets as of and for the interim period
ending on the Effective Time; such financial statements will present fairly
the financial position and portfolio of investments and the results of its
operations as of, and for the period ending on, the dates of such
statements in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved and the results
of its operations and changes in financial position for the period then
ended; and such financial statements shall be certified by the Treasurer of
the Acquired Portfolio as complying with the requirements hereof.
(d) Marketable Title to Assets. The Acquired Portfolio will have, at the
Effective Time, good and marketable title to, and full right, power and
authority to sell, assign, transfer and deliver, the assets to be
transferred to the Acquiring Portfolio. Upon delivery and payment for such
assets, including the assumption of related liabilities, the Acquiring
Portfolio will have good and marketable title to such assets without
restriction on the transfer thereof, free and clear of all liens,
encumbrances and adverse claims.
(e) Authority Relative to this Agreement. The Trust, on behalf of the
Acquired Portfolio, has the power to enter into this Agreement and to carry
out its obligations hereunder. The execution, delivery and performance of
this Agreement, and the consummation of the transactions contemplated
hereby, have been duly authorized by the Trust's Board of Trustees, and no
other proceedings by the Trust are necessary to authorize its officers to
effectuate this Agreement and the transactions contemplated hereby. The
Acquired Portfolio is not a party to or obligated under any charter, by-
law, indenture or contract provision or any other commitment or obligation,
or subject to any order or decree, which would be violated by its executing
and carrying out this Agreement.
(f) Liabilities. There are no liabilities of the Acquired Portfolio,
whether or not determined or determinable, other than liabilities disclosed
or provided for in the Acquired Funds Financial Statements and liabilities
incurred in the ordinary course of business prior to the Effective Time or
otherwise previously disclosed to the Acquiring Portfolio, none of which
has been or will have been materially adverse to the business, assets or
results of operations of the Acquired Portfolio. The Trust's Registration
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Statement, which is on file with the SEC, does not contain any untrue
statement of a material fact nor does it omit any statement required to be
stated therein or necessary to make the statements therein not misleading.
(g) Litigation. Except as previously disclosed to the Acquiring
Portfolio, there are no claims, actions, suits or proceedings pending or,
to the knowledge of Xxx Xxxxxx Asset Management Inc., or the Trust,
threatened which would materially adversely affect the Acquired Portfolio
or its assets or business or which would prevent or hinder in any material
respect consummation of the transactions contemplated hereby.
(h) Contracts. Except for contracts and agreements disclosed to the
Acquiring Portfolio, under which no default exists, the Acquired Portfolio
is not a party to or subject to any material contract, debt instrument,
plan, lease, franchise, license or permit of any kind or nature whatsoever.
(i) Taxes. As of the Effective Time, all federal and other tax returns
and reports of the Acquired Portfolio required by law to have been filed
shall have been filed, and all taxes shall have been paid so far as due, or
provision shall have been made for the payment thereof, and, to the best of
the Acquired Portfolio's knowledge, no such return is currently under audit
and no assessment has been asserted with respect to any of such return
which would materially adversely affect the Acquired Portfolio or its
assets or business or which would prevent or hinder in any material respect
consummation of the transactions contemplated hereby.
(j) Shares of the Acquired Portfolio: Authorization. The shares of
beneficial interest of the Acquired Portfolio to be exchanged pursuant to
Section 1 hereof have been duly authorized and issued and are fully paid
and non-assessable by the Trust and conform in all material respects to the
description thereof contained in the Trust's Prospectus furnished to the
Acquiring Portfolio.
(k) Absence of Changes. From the date of this Agreement through the
Effective Time, there shall not have been any change in the business,
results of operations, assets or financial condition or the manner of
conducting the business of the Acquired Portfolio, other than changes in
the ordinary course of its business, which will have had a material adverse
effect on such business, or any pending or overtly threatened litigation,
results of operations, assets or financial condition which would materially
adversely affect the Acquired Portfolio or its assets or business or which
would prevent or hinder in any material respect consummation of the
transactions contemplated hereby.
(l) Registration Statement. The Registration Statement and the
Prospectus/Proxy Statement contained therein as of the effective date of
the Registration Statement, and at all times subsequent thereto up to and
including the Effective Time, as amended or as supplemented if it shall
have been amended or supplemented, conforms and will conform, as it relates
to the Acquired Portfolio, in all material respects, to the applicable
requirements of the applicable Federal and state securities laws and the
rules and regulations of the SEC thereunder, and do not and will 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 misleading, except that no representations or warranties in this
Section apply to statements or omissions made in reliance upon and in
conformity with written information concerning the Fund or the Acquiring
Portfolio furnished to the Acquired Portfolio by the Fund or the Acquiring
Portfolio.
(m) Tax Qualification. The Acquired Portfolio has qualified as a
regulated investment company within the meaning of Section 851 of the Code
for each of its taxable years; and has satisfied the distribution
requirements imposed by Section 852 of the Code for each of its taxable
years.
(n) Diversification Qualification. The Acquired Portfolio has satisfied
the diversification tests forth in Treas. Reg. Section 1.817-5 for each of
its calendar quarters.
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6. Conditions Precedent to Obligations of the Acquiring Portfolio.
(a) All representations and warranties of the Acquired Portfolio contained
in this Agreement shall be true and correct in all material respects as of the
date hereof and, except as they may be affected by the transactions
contemplated by this Agreement, as of the Effective Time, with the same force
and effect as if made on and as of the Effective Time.
(b) The Acquiring Portfolio shall have received an opinion of counsel for
the Acquired Portfolio, dated as of the Effective Time, addressed to and in
form and substance satisfactory to counsel for the Acquiring Portfolio, to the
effect that (i) the Trust is duly organized and validly existing under the laws
of its state of organization and the Acquired Portfolio has been duly
designated as a series of the Trust; (ii) the Trust is an open-end management
investment company registered under the 1940 Act which offers its shares only
to insurance companies for accounts which they establish to fund variable life
insurance and variable annuity contracts and to other entities under qualified
pension and retirement plans; (iii) this Agreement and the Reorganization
provided for herein and the execution of this Agreement have been duly
authorized and approved by all requisite action of the Acquired Portfolio and
this Agreement has been duly executed and delivered by the Trust on behalf of
the Acquired Portfolio and is a valid and binding obligation of the Acquired
Portfolio, subject to applicable bankruptcy, insolvency, fraudulent conveyance
and similar laws or court decisions regarding enforcement of creditors' rights
generally; (iv) to the best of counsel's knowledge after reasonable inquiry, no
consent, approval, order or other authorization of any federal or state court
or administrative or regulatory agency is required for the Acquired Portfolio
to enter into this Agreement or to carry out its terms that has not been
obtained other than where the failure to obtain any such consent, approval,
order or authorization would not have a material adverse effect on the
operations of the Acquired Portfolio; and (v) upon consummation of this
Agreement, the Acquiring Portfolio shall have acquired all of the Acquired
Portfolio's assets listed in the Statement of Assets and Liabilities, free and
clear of all liens, encumbrances or adverse claims.
(c) The Acquired Portfolio shall have delivered to the Acquiring Portfolio
at the Effective Time the Acquired Portfolio Statement of Assets and
Liabilities, prepared in accordance with generally accepted accounting
principles consistently applied, together with a certificate of the Treasurer
or Assistant Treasurer of the Acquired Portfolio as to the aggregate asset
value of the Acquired Portfolio's securities.
(d) The Acquired Portfolio shall have received a certificate of an
authorized officer of the Acquiring Portfolio, dated as of the Effective Time,
certifying that the representations and warranties set forth in Section 5 are
true and correct at the Effective Time, together with certified copies of the
resolutions adopted by the Board of Trustees.
7. Conditions Precedent to Obligations of the Acquired Portfolio.
(a) This Agreement and the transactions contemplated herein shall have been
approved by the affirmative vote of the holders of a majority of the
outstanding shares of beneficial interest of the Acquired Portfolio.
(b) All representations and warranties of the Acquiring Portfolio contained
in this Agreement shall be true and correct in all material respects as of the
date hereof and, except as they may be affected by the transactions
contemplated by this Agreement, as of the Effective Time, with the same force
and effect as if made on and as of the Effective Time.
(c) The Registration Statement shall have become effective and no stop
orders under the 1933 Act pertaining thereto shall have been issued and all
necessary approvals, registrations, and exemptions under federal and state
securities laws shall have been obtained.
(d) The Acquired Portfolio shall have received an opinion of counsel for the
Acquiring Portfolio, dated as of the Effective Time, addressed to and in form
and substance satisfactory to counsel for the Acquired Portfolio, to the effect
that: (i) the Acquiring Portfolio is duly organized and a validly existing
series of the Fund under the laws of its state of organization; (ii) the Fund
is an open-end management investment company
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registered under the 1940 Act which offers its shares only to insurance
companies for accounts which they establish to fund variable life insurance and
avriable annuity contracts and to other entities under qualified pension and
retirement plans; (iii) this Agreement and the Reorganization provided for
herein and the execution of this Agreement have been duly authorized and
approved by all requisite action of the Acquiring Portfolio and this Agreement
has been duly executed and delivered by the Acquiring Portfolio and is a valid
and binding obligation of the Acquiring Portfolio, subject to applicable
bankruptcy, insolvency, fraudulent conveyance and similar laws or court
decisions regarding enforcement of creditors' rights generally; (iv) to the
best of counsel's knowledge, no consent, approval, order or other authorization
of any Federal or state court or administrative or regulatory agency is
required for the Acquiring Portfolio to enter into this Agreement or to carry
out its terms that has not already been obtained, other than where the failure
to obtain any such consent, approval, order or authorization would not have a
material adverse effect on the operations of the Acquiring Portfolio; (v) the
Acquiring Portfolio Shares to be issued in the Reorganization have been duly
authorized and upon issuance thereof in accordance with this Agreement will be
validly issued, fully paid and nonassessable; and (vi) except as to financial
statements and schedules and other financial and statistical data included or
incorporated by reference therein and subject to usual and customary
qualifications with respect to Rule 10b-5 type opinions, as of the effective
date of the Registration Statement filed pursuant to the Agreement, the
portions thereof pertaining to the Acquiring Portfolio comply as to form in all
material respects with the requirements of the 1933 Act, the Securities
Exchange Act of 1934, as amended (the "1934 Act") and the 1940 Act and the
rules and regulations of the SEC thereunder and no facts have come to counsel's
attention which would cause them to believe that as of the date of
effectiveness of the portions of the Registration Statement applicable to the
Acquiring Portfolio, the Registration Statement contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
(e) No temporary restraining order, preliminary or permanent injunction or
other order issued by any court of competent jurisdiction or other legal
restraint or prohibition preventing the consummation of the transactions
contemplated by this Agreement shall be in effect, nor shall any proceeding by
any state, local or federal government agency or entity seeking any of the
foregoing be pending. There shall not have been any action taken or any
statute, rule, regulation or order enacted, entered, enforced or deemed
applicable to the transactions contemplated by this Agreement which makes or
would make the consummation of the transactions contemplated by this Agreement
illegal or which has or would have a material adverse effect on business
operations of the Acquiring Portfolio.
(f) The Acquiring Portfolio shall have delivered to the Acquired Portfolio
at the Effective Time a certificate of the Treasurer or Assistant Treasurer of
the Acquiring Portfolio as to the aggregate asset value of the Acquiring
Portfolio's securities.
(g) The Acquiring Portfolio shall have received a certificate of an
authorized officer of the Acquired Portfolio, dated as of the Effective Time,
certifying that the representations and warranties set forth in Section 4 are
true and correct at the Effective Time, together with certified copies of the
resolutions adopted by the Board of Trustees.
8. Further Conditions Precedent to Obligations of the Acquired Portfolio and
the Acquiring Portfolio. The obligations of the Acquired Portfolio and the
Acquiring Portfolio to consummate the transactions contemplated by this
Agreement shall be subject to the satisfaction of each of the following
conditions:
(a) Such authority from the SEC as may be necessary to permit the
parties to carry out the transactions contemplated by this Agreement shall
have been received.
(b) The Registration Statement on Form N-1A of the Acquiring Portfolio
shall be effective under the 1933 Act, and, to the best knowledge of the
Acquiring Portfolio, no investigation or proceeding for that purpose shall
have been instituted or be pending, overtly threatened or contemplated
under the 1933 Act.
(c) The Acquiring Portfolio shall have filed all documents and paid all
fees required to permit its shares to be offered to insurance companies in
all states of the United States, the Commonwealth of Puerto Rico and the
District of Columbia (except where such qualifications are not required) so
as to permit the transfer contemplated by this Agreement to be consummated.
(d) The Acquired Portfolio and the Acquiring Portfolio shall have
received on or before the Effective Time an opinion of counsel satisfactory
to the Acquired Portfolio and the Acquiring Portfolio and based
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upon certain factual representations made by officers of the Xxx Xxxxxx
Trust and the Universal Fund substantially to the effect that for federal
income tax purposes:
(1) No gain or loss will be recognized to the Acquired Portfolio
upon the transfer of its assets in exchange solely for the Acquiring
Portfolio Shares and the assumption by the Acquiring Portfolio of the
Acquired Portfolio's liabilities. No opinion, however, is expressed as
to whether accrued market discount will be required to be recognized as
ordinary income pursuant to Section 1276 of the Code;
(2) No gain or loss will be recognized to the Acquiring Portfolio on
its receipt of the Acquired Portfolio's assets in exchange for the
Acquiring Portfolio Shares and the assumption by the Acquiring
Portfolio of the Acquired Portfolio's liabilities;
(3) The basis of the Acquired Portfolio's assets in the accounts of
shareholders of the Acquiring Portfolio will be the same as the basis
of those assets in the accounts of shareholders of the Acquired
Portfolio immediately before the Reorganization;
(4) The Acquiring Portfolio's holding period for the assets
transferred to the Acquiring Portfolio by the Acquired Portfolio will
include the holding period of those assets in the accounts of
shareholders of the Acquired Portfolio immediately before the
Reorganization;
(5) No gain or loss will be recognized to the Acquired Portfolio on
the distribution of the Acquiring Portfolio Shares to the accounts of
the Acquired Portfolio's shareholders in exchange for Acquired
Portfolio Shares;
(6) No gain or loss will be recognized to the accounts of the
Acquired Portfolio's shareholders as a result of the distribution of
the Acquiring Portfolio Shares to the accounts of the Acquired
Portfolio's shareholders in exchange for Acquired Portfolio Shares;
(7) The basis of the Acquiring Portfolio Shares received by the
accounts of the Acquired Portfolio's shareholders will be the same as
the adjusted basis of those shareholders' Acquired Portfolio Shares
surrendered in exchange therefor; and
(8) The holding period of the Acquiring Portfolio Shares received by
the accounts of the Acquired Portfolio's shareholders will include
their holding period for the Acquired Portfolio Shares surrendered in
exchange therefor, provided that said Acquired Portfolio Shares were
held as capital assets on the date of the conversion.
(e) A vote approving this Agreement and the Reorganization contemplated
hereby shall have been adopted by at least a majority of the outstanding
shares of the Acquired Portfolio entitled to vote at a special meeting.
(f) The Board of Directors of the Fund, at a meeting duly called for
such purpose, shall have authorized the issuance by the Acquiring Portfolio
of Acquiring Portfolio Shares at the Effective Time in exchange for the
assets and liabilities of the Acquired Portfolio pursuant to the terms and
provisions of this Agreement.
9. Effective Time of the Reorganization. The exchange of the Acquired
Portfolio's assets and liabilities for Acquiring Portfolio Shares shall be
effective as of close of business on [ ], 2000, or at such other time and
date as fixed by the mutual consent of the parties.
10. Termination. This Agreement and the transactions contemplated hereby may
be terminated and abandoned with respect to one or both of the Acquiring
Portfolio and/or the Acquired Portfolio without penalty by resolution of the
Board of Trustees of the Trust or the Board of Directors of the Fund or at the
discretion of any duly authorized officer of the Fund or of the Trust, at any
time prior to the Effective Time, if circumstances should develop which, in the
opinion of such Board or officer, make proceeding with the Agreement
inadvisable.
8
11. Amendment and Waiver. This Agreement may be amended, modified or
supplemented in such manner as may be mutually agreed upon in writing by the
parties; PROVIDED, that no such amendment may have the effect of changing the
provisions for determining the number or value of Acquiring Portfolio Shares to
be paid to the Acquired Portfolio's shareholders under this Agreement to the
detriment of such shareholders without their further approval. Furthermore,
either party may waive any breach by the other party or of the failure to
satisfy any of the conditions to its obligations (such waiver to be in writing
and authorized by the President or any Vice President of the waiving party)
with or without the approval of such party's shareholders.
12. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of [ ].
13. Personal Liability. As provided for in the organizational documents of
the Xxx Xxxxxx Trust, the shareholders, trustees, officers, employees and other
agents of the Xxx Xxxxxx Trust shall not personally be found by or liable for
the matters set forth hereto, nor shall resort be had to their private property
for the satisfaction of any obligation or claim hereunder.
14. Notices. Any notice, report, statement or demand required or permitted
by any provision of this Agreement shall be in writing and shall be given by
prepaid telegraph, telecopy, certified mail, internet or overnight express
courier addressed as follows:
if to the Acquiring Portfolio:
Xxxxxx X. Xxxxxxx, Xx., Esquire
The Universal Institutional Funds, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to:
Xxxxxx Xxx, Esquire
Xxxxxx Xxxxxxx Xxxx Xxxxxx Investment Management Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx X. Xxxxx, Esquire
Xxxxxx, Xxxxx & Xxxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
if to the Acquired Portfolio:
A. Xxxxxx Xxxxx III, Esquire
Xxx Xxxxxx Life Investment Trust
0 Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000
with a copy to:
Xxxxxx X. Xxxx, Esquire
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
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15. Fees and Expenses.
(a) The Acquiring Portfolio and the Acquired Portfolio each represents and
warrants to the other that there are no brokers or finders entitled to receive
any payments in connection with the transactions provided for herein.
(b) Except as otherwise provided for herein, all expenses of the
transactions contemplated by this Agreement will be incurred by Xxxxxx Xxxxxxx
Xxxx Xxxxxx Investment Management Inc. Such expenses include, without
limitation, (i) expenses incurred in connection with the entering into and the
carrying out of the provisions of this Agreement; (ii) expenses associated with
the preparation and filing of the proxy statement relating to the
Reorganization Agreement under the 1934 Act; (iii) postage; (iv) printing; (v)
accounting fees; (vi) legal fees; and (vii) solicitation costs of the
transaction. The Acquiring Portfolio shall pay its own Federal and state
registration fees.
16. Headings, Counterparts, Assignment.
(a) The article and paragraph headings contained in this Agreement are for
reference purposes only and shall not effect in any way the meaning or
interpretation of this Agreement.
(b) This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
(c) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, but no assignment
or transfer hereof of any rights or obligations hereunder shall be made by any
party without the written consent of the other party. Nothing herein expressed
or implied is intended or shall be construed to confer upon or give any person,
firm or corporation other than the parties hereto and their respective
successors and assigns any rights or remedies under or by reason of this
Agreement.
17. Entire Agreement.
The Fund and the Trust agree that neither party has made any representation,
warranty or covenant not set forth herein and that this Agreement constitutes
the entire agreement between the parties. The representations, warranties and
covenants contained herein or in any document delivered pursuant hereto or in
connection herewith shall survive the consummation of the transactions
contemplated hereunder.
18. Further Assurances.
The Fund and the Trust shall take such further action as may be necessary or
desirable and proper to consummate the transactions contemplated hereby.
19. Binding Nature of Agreement.
As provided in each of (1) the Trust's organizational documents, as amended
and supplemented to date; and (2) the Fund's organizational documents, as
amended and supplemented to date, this Agreement was executed by the
undersigned officers of the Fund and the Trust, on behalf of the Acquiring
Portfolio and the Acquired Portfolio, respectively, as officers and not
individually, and the obligations of this Agreement are not binding upon the
undersigned officers individually, but are binding only upon the assets and
property of the corporation or trust. Moreover, no series of the Fund or the
Trust shall be liable for the obligations of any other series of that
corporation or trust.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
Xxx Xxxxxx Life Investment Trust, on
behalf of its series, Xxxxxx Xxxxxxx
Real Estate Securities Portfolio
By: _________________________________
Name: _______________________________
Title: ______________________________
The Universal Institutional Funds,
Inc., on behalf of its series, U.S.
Real Estate Portfolio
By: _________________________________
Name: _______________________________
Title: ______________________________
11
