Exhibit (4)
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as
of this 21st day of April, 2004, by and among Hartford Series Fund, Inc. (the
"Acquiring Corporation"), a Maryland corporation, on behalf of Hartford Bond HLS
Fund, (the "Acquiring Fund"), a separate series of the Acquiring Corporation,
and Hartford HLS Series Fund II, Inc. (the "Target Corporation" and, together
with the Acquiring Corporation, each a "Corporation" and collectively the
"Corporations"), a Maryland corporation, on behalf of Hartford Multisector Bond
HLS Fund (the "Target Fund" and, together with the Acquiring Fund, each a "Fund"
and collectively the "Funds"), a separate series of the Target Corporation, and
HL Investment Advisors, LLC ("HL Advisors"), investment adviser to the Funds
(for purposes of Paragraph 10.2 of the Agreement only). The principal place of
business of each Corporation is 000 Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx
00000.
This Agreement is intended to be and is adopted as a plan of
reorganization and liquidation within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"). The reorganization (the
"Reorganization") will consist of the transfer of all of the assets of the
Target Fund to the Acquiring Fund in exchange solely for Class IA voting shares
of capital stock ($0.001 par value per share) of the Acquiring Fund (the
"Acquiring Fund Shares"), the assumption by the Acquiring Fund of all of the
liabilities of the Target Fund and the distribution of the Acquiring Fund Shares
to the Class IA shareholders of the Target Fund in complete liquidation of the
Target Fund as provided herein, all upon the terms and conditions hereinafter
set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
1. Transfer of Assets of the Target Fund to the Acquiring Fund in exchange
for Acquiring Fund Shares, the Assumption of all Target Fund liabilities
and the liquidation of the Target Fund
1.1. Subject to the terms and conditions set forth herein and on the
basis of the representations and warranties contained herein, the Target Fund
agrees to transfer to the Acquiring Fund all of the Target Fund's assets as set
forth in section 1.2, and the Acquiring Fund agrees in exchange therefor (i) to
deliver to the Target Fund that number of full and fractional Class IA Acquiring
Fund Shares determined by dividing the value of the Target Fund's assets net of
any liabilities of the Target Fund with respect to the Class IA shares of the
Target Fund, computed in the manner and as of the time and date set forth in
section 2.1, by the net asset value of one Acquiring Fund Share, computed in the
manner and as of the time and date set forth in section 2.2; and (ii) to assume
all of the liabilities of the Target Fund. All Acquiring Fund Shares delivered
to the Target Fund shall be delivered at net asset value without a sales load,
commission or other similar fee being imposed. Such transactions shall take
place at the closing provided for in section 3.1 (the "Closing").
1.2. The assets of the Target Fund to be acquired by the Acquiring Fund
(the "Assets") shall consist of all assets, including, without limitation, all
cash, cash equivalents, securities, commodities and futures interests and
dividends or interest or other receivables that are owned by the Target Fund and
any deferred or prepaid expenses shown on the unaudited statement of assets and
liabilities of such Target Fund prepared as of the effective time of the Closing
in accordance with generally accepted accounting principles ("GAAP") applied
consistently with those of the Target Fund's most recent audited balance sheet.
The Assets 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 Target Fund immediately before the Closing (excluding for these purposes
assets used to pay the dividends and other distributions paid pursuant to
section 1.4).
1.3. The Target Fund will endeavor to discharge all of its known
liabilities and obligations prior to the Closing Date as defined in section 3.1.
1.4. On or as soon as practicable prior to the Closing Date as defined
in section 3.1, the Target Fund will declare and pay to its shareholders of
record one or more dividends and/or other distributions so that it will have
distributed all of its investment company taxable income (computed without
regard to any deduction for dividends paid) and realized net capital gain, if
any, for the current taxable year through the Closing Date.
1.5. Immediately after the transfer of Assets provided for in section
1.1, the Target Fund will distribute to the Target Fund's shareholders of record
(the "Target Fund Shareholders"), determined as of the Valuation Time (as
defined in section 2.1), on a pro rata basis, the Acquiring Fund Shares received
by the Target Fund pursuant to section 1.1 and will completely liquidate. Such
distribution and liquidation will be accomplished with respect to the Target
Fund by the transfer of the Acquiring Fund Shares then credited to the account
of the Target Fund on the books of the Acquiring Fund to open accounts on the
share records of the Acquiring Fund in the names of the Target Fund
Shareholders. The Acquiring Fund shall have no obligation to inquire as to the
validity, propriety or correctness of such records, but shall assume that such
transaction is valid, proper and correct. The aggregate net asset value of the
Class IA Acquiring Fund Shares to be so credited to the Class IA Target Fund
Shareholders shall be equal to the aggregate net asset value of the Target Fund
shares owned by such shareholders as of the Valuation Time. All issued and
outstanding shares of the Target Fund will simultaneously be cancelled on the
books of the Target Fund, although share certificates representing interests in
Class IA shares of the Target Fund will represent a number of Acquiring Fund
Shares after the Closing Date as determined in accordance with section 2.3. The
Acquiring Fund will not issue certificates representing Acquiring Fund Shares in
connection with such exchange.
1.6. Ownership of Acquiring Fund Shares will be shown on the books of
the Acquiring Fund. Shares of the Acquiring Fund will be issued in the manner
described in the Acquiring Fund's then-current prospectus and statement of
additional information.
1.7. Any reporting responsibility of the Target Fund including, without
limitation, the responsibility for filing of regulatory reports, tax returns, or
other documents with the Securities and Exchange Commission (the "Commission"),
any state securities commission, and any federal, state or local tax authorities
or any other relevant regulatory authority, is and shall remain the
responsibility of the Target Fund.
1.8. All books and records of the Target Fund, including all books and
records required to be maintained under the Investment Company Act of 1940, as
amended (the "1940 Act"), and the rules and regulations thereunder, shall be
available to the Acquiring Fund from and after the Closing Date and shall be
turned over to the Acquiring Fund as soon as practicable following the Closing
Date.
2. VALUATION
2.1. The value of the Assets shall be computed as of the close of
business on the Closing Date, as defined in section 3.1 (the "Valuation Time")
after the declaration and payment of any dividends and/or other distributions on
that date, using the valuation procedures set forth in the Acquiring
Corporation's Charter, as amended, and then-current prospectus or statement of
additional information, copies of which have been delivered to the Target Fund.
2.2. The net asset value of a Class IA Acquiring Fund Share shall be
the net asset value per share computed as of the Valuation Time using the
valuation procedures referred to in section 2.1.
2.3. The number of Class IA Acquiring Fund Shares to be issued
(including fractional shares, if any) in exchange for the Assets shall be
determined by dividing the value of the Assets with respect to Class IA shares
of the Target Fund determined in accordance with section 2.1 by the net asset
value of an Acquiring Fund Share determined in accordance with section 2.2.
2.4. All computations of value hereunder shall be made by or under the
direction of each Fund's respective accounting agent, if applicable, in
accordance with its regular practice and the requirements of the 1940 Act and
shall be subject to confirmation by each Fund's respective independent auditors
upon the reasonable request of the other Fund.
3. CLOSING AND CLOSING DATE
3.1. The Closing of the transactions contemplated by this Agreement
shall be April 30, 2004, or such other date as the parties may agree in writing
(the "Closing Date"). All acts taking place at the Closing shall be deemed to
take place simultaneously as of the close of business on the Closing Date,
unless otherwise agreed to by the parties. The Closing shall be held at the
offices of Dechert LLP, 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, or at such other place and time as the parties may agree.
3.2. The Target Fund shall deliver to the Acquiring Fund on the Closing
Date a schedule of Assets.
3.3. State Street Bank and Trust Company ("State Street"), custodian
for the Target Fund,shall deliver at the Closing a certificate of an authorized
officer stating that the Assets shall have been delivered in proper form to
State Street, custodian for the Acquiring Fund, prior to or on the Closing Date.
An officer of the Target Fund shall deliver at the Closing a certificate stating
that all necessary taxes in connection with the delivery of the Assets,
including all applicable federal and state stock transfer stamps, if any, have
been paid or provision for payment has been made. The Target Fund's portfolio
securities represented by a certificate or other written instrument shall be
presented by the custodian for the Target Fund to the custodian for the
Acquiring Fund for examination no later than five business days preceding the
Closing Date and transferred and delivered by the Target Fund as of the Closing
Date by the Target Fund for the account of the Acquiring Fund duly endorsed in
proper form for transfer in such condition as to constitute good delivery
thereof. The Target Fund's portfolio securities and instruments deposited with a
securities depository, as defined in Rule 17f-4 under the 1940 Act, shall be
delivered as of the Closing Date by book entry in accordance with the customary
practices of such depositories and the custodian for the Acquiring Fund. The
cash to be transferred by the Target Fund shall be delivered by wire transfer of
federal funds on the Closing Date.
3.4. Hartford Investor Services Company, as transfer agent for the
Target Fund, on behalf of the Target Fund, shall deliver at the Closing a
certificate of an authorized officer stating that its records contain the names
and addresses of the Target Fund Shareholders and the number and percentage
ownership (to three decimal places) of outstanding Class IA Target Fund shares
owned by each such shareholder immediately prior to the Closing. The Acquiring
Fund shall issue and deliver a confirmation evidencing the Acquiring Fund Shares
to be credited on the Closing Date to the Target Fund or provide evidence
satisfactory to the Target Fund that such Acquiring Fund Shares have been
credited to that Target Fund's account on the books of the Acquiring Fund. At
the Closing, each party shall deliver to the other such bills of sale, checks,
assignments, share certificates, if any, receipts or other documents as such
other party or its counsel may reasonably request to effect the transactions
contemplated by this Agreement.
3.5. In the event that immediately prior to the Valuation Time (a) the
NYSE or another primary trading market for portfolio securities of the Acquiring
Fund or the Target Fund shall be closed to trading or trading thereupon shall be
restricted, or (b) trading or the reporting of trading on such Exchange or
elsewhere shall be disrupted so that, in the judgment of the Board members of
either party to this Agreement, accurate appraisal of the value of the net
assets with respect to the Class IA shares of the Acquiring Fund or the Target
Fund is impracticable, the Closing Date shall be postponed until the first
business day after the day when trading shall have been fully resumed and
reporting shall have been restored.
3.6. The liabilities of the Target Fund shall include all of such
Target Fund's liabilities, debts, obligations, and duties of whatever kind or
nature, whether absolute, accrued, contingent, or otherwise, whether or not
arising in the ordinary course of business, whether or not determinable at the
Closing Date, and whether or not specifically referred to in this Agreement
including but not limited to any deferred compensation to such Target Fund's
board members.
4. Representations and Warranties
4.1. The Target Corporation, on behalf of the Target Fund, represents
and warrants to the respective Acquiring Fund as follows:
(a) The Target Corporation is a corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland with power
under the Target Corporation's Charter, as amended, to own all of its properties
and assets and to carry on its business as it is now being conducted and,
subject to approval of shareholders of the Target Fund, to carry out the
Agreement. The Target Fund is a separate series of the Target Corporation duly
designated in accordance with the applicable provisions of the Target
Corporation's Charter. The Target Corporation and Target Fund are qualified to
do business in all jurisdictions in which they are required to be so qualified,
except jurisdictions in which the failure to so qualify would not have material
adverse effect on the Target Corporation or Target Fund. The Target Fund has 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 that the failure to so obtain would not have a material
adverse effect on the Target Fund;
(b) The Target Corporation is registered with the Commission as an
open-end management investment company under the 1940 Act, and such registration
is in full force and effect and the Target Fund is in compliance in all material
respects with the 1940 Act and the rules and regulations thereunder;
(c) No consent, approval, authorization, or order of any court or
governmental authority is required for the consummation by the Target Fund of
the transactions contemplated herein, except such as have been obtained under
the Securities Act of 1933, as amended (the "1933 Act"), the Securities Exchange
Act of 1934, as amended (the "1934 Act") and the 1940 Act and such as may be
required by state securities laws;
(d) Other than with respect to contracts entered into in connection
with the portfolio management of the Target Fund which shall terminate on or
prior to the Closing Date, the Target Corporation is not, and the execution,
delivery and performance of this Agreement by the Target Corporation will not
result in (i) a violation of Maryland law or of the Target Corporation's
Charter, as amended, or By-Laws, (ii) a violation or breach of, or constitute a
default under, any material agreement, indenture, instrument, contract, lease or
other undertaking to which the Target Fund is a party or by which it is bound,
and the execution, delivery and performance of this Agreement by the Target Fund
will not result in the acceleration of any obligation, or the imposition of any
penalty, under any agreement, indenture, instrument, contract, lease, judgment
or decree to which the Target Fund is a party or by which it is bound, or (iii)
the creation or imposition of any lien, charge or encumbrance on any property or
assets of the Target Fund;
(e) No material litigation or administrative proceeding or
investigation of or before any court or governmental body is presently pending
or to its knowledge threatened against the Target Fund or any properties or
assets held by it. The Target Fund knows of no facts that might form the basis
for the institution of such proceedings that would materially and adversely
affect its business and is not a party to or subject to the provisions of any
order, decree or judgment of any court or governmental body which materially and
adversely affects its business or its ability to consummate the transactions
herein contemplated;
(f) The Statements of Assets and Liabilities, Operations, and Changes
in Net Assets, the Financial Highlights, and the Investment Portfolio of the
Target Fund at and for the fiscal year ended December 31, 2003, have been
audited by Ernst & Young LLP, independent auditors, and are in accordance with
GAAP consistently applied, and such statements (a copy of each of which has been
furnished to the Acquiring Fund) present fairly, in all material respects, the
financial position of the Target Fund as of such date in accordance with GAAP,
and there are no known contingent liabilities of the Target Fund required to be
reflected on a balance sheet (including the notes thereto) in accordance with
GAAP as of such date not disclosed therein;
(g) Since December 31, 2003, there has not been any material adverse
change in the Target Fund's financial condition, assets, liabilities or business
other than changes occurring in the ordinary course of business, or any
incurrence by the Target Fund of indebtedness maturing more than one year from
the date such indebtedness was incurred except as otherwise disclosed to and
accepted in writing by the Acquiring Fund. For purposes of this subsection (g),
a decline in net asset value per share of the Target Fund due to declines in
market values of securities in the Target Fund's portfolio, the discharge of
Target Fund liabilities, or the redemption of Target Fund shares by Target Fund
Shareholders shall not constitute a material adverse change;
(h) At the date hereof and at the Closing Date, all federal and other
tax returns and reports of the Target Fund required by law to have been filed by
such dates (including any extensions) shall have been filed and are or will be
correct in all material respects, and all federal and other taxes shown as due
or required to be shown as due on said returns and reports shall have been paid
or provision shall have been made for the payment thereof, and, to the best of
the Target Fund's knowledge, no such return is currently under audit and no
assessment has been asserted with respect to such returns;
(i) For each taxable year of its operation (including the taxable year
ending on the Closing Date), the Target Fund has met the requirements of
Subchapter M of the Code for qualification and treatment as a regulated
investment company and has elected to be treated as such, has been eligible to
and has computed its federal income tax under Section 852 of the Code, and will
have distributed all of its investment company taxable income and net capital
gain (as defined in the Code) that has accrued through the Closing Date;
(j) All issued and outstanding shares of the Target Fund (i) have been
offered and sold in every state and the District of Columbia in compliance in
all material respects with applicable registration requirements of the 1933 Act
and state securities laws, (ii) are, and on the Closing Date will be, duly and
validly issued and outstanding, fully paid and non-assessable and not subject to
preemptive or dissenter's rights, and (iii) will be held at the time of the
Closing by the persons and in the amounts set forth in the records of Hartford
Investor Services Company, as provided in section 3.4. The Target Fund does not
have outstanding any options, warrants or other rights to subscribe for or
purchase any of the Target Fund shares, nor is there outstanding any security
convertible into any of the Target Fund shares;
(k) At the Closing Date, the Target Fund will have good and marketable
title to the Target Fund's assets to be transferred to the Acquiring Fund
pursuant to section 1.2 and full right, power and authority to sell, assign,
transfer and deliver such assets hereunder free of any liens or other
encumbrances, except those liens or encumbrances as to which the Acquiring Fund
has received notice at or prior to the Closing, and upon delivery and payment
for such assets, the Acquiring Fund will acquire good and marketable title
thereto, subject to no restrictions on the full transfer thereof, including such
restrictions as might arise under the 1933 Act and the 1940 Act, except those
restrictions as to which the Acquiring Fund has received notice and necessary
documentation at or prior to the Closing;
(l) The execution, delivery and performance of this Agreement will have
been duly authorized prior to the Closing Date by all necessary action on the
part of the Board members of the Target Corporation, (including the
determinations required by Rule 17a-8(a) under the 1940 Act), and, subject to
the approval of the Target Fund Shareholders, this Agreement constitutes a valid
and binding obligation of the Target Corporation, on behalf of the Target Fund,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other laws relating to or affecting creditors' rights and to general equity
principles;
(m) The information to be furnished by the Target Fund for use in
applications for orders, registration statements or proxy materials or for use
in any other document filed or to be filed with any federal, state or local
regulatory authority (including the National Association of Securities Dealers,
Inc. (the "NASD")), which may be necessary in connection with the transactions
contemplated hereby, shall be accurate and complete in all material respects and
shall comply in all material respects with federal securities and other laws and
regulations applicable thereto;
(n) The current prospectus and statement of additional information of
the Target Fund conform in all material respects to the applicable requirements
of the 1933 Act and the 1940 Act and the rules and regulations of the Commission
thereunder and do 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; and
(o) The proxy statement of the Target Fund to be included in the
Registration Statement referred to in section 5.7 (the "Proxy Statement"),
insofar as it relates to the Target Fund, will, on the effective date of the
Registration Statement and on the Closing Date, (i) comply in all material
respects with the provisions and Regulations of the 1933 Act, 1934 Act and 1940
Act, as applicable, and (ii) not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which such
statements are made, not materially misleading; provided, however, that the
representations and warranties in this section shall not apply to statements in
or omissions from the Proxy Statement and the Registration Statement made in
reliance upon and in conformity with information that was furnished or should
have been furnished by the Acquiring Fund for use therein.
4.2. The Acquiring Corporation, on behalf of the Acquiring Fund,
represents and warrants to the respective Target Fund as follows:
(a) The Acquiring Corporation is a corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland with power
under the Acquiring Corporation's Charter, as amended, to own all of its
properties and assets and to carry on its business as it is now being conducted
and, subject to the approval of shareholders of the Target Fund, to carry out
the Agreement. The Acquiring Fund is a separate series of the Acquiring
Corporation duly designated in accordance with the applicable provisions of the
Acquiring Corporation's Charter. The Acquiring Corporation and Acquiring Fund
are qualified to do business in all jurisdictions in which they are required to
be so qualified, except jurisdictions in which the failure to so qualify would
not have material adverse effect on the Acquiring Corporation or Acquiring Fund.
The Acquiring Fund has 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 that the failure to so obtain
would not have a material adverse effect on the Acquiring Fund;
(b) The Acquiring Corporation is registered with the Commission as an
open-end management investment company under the 1940 Act, and such registration
is in full force and effect and the Acquiring Fund is in compliance in all
material respects with the 1940 Act and the rules and regulations thereunder;
(c) No consent, approval, authorization, or order of any court or
governmental authority is required for the consummation by the Acquiring Fund of
the transactions contemplated herein, except such as have been obtained under
the 1933 Act, the 1934 Act and the 1940 Act and such as may be required by state
securities laws;
(d) The Acquiring Corporation is not, and the execution, delivery and
performance of this Agreement by the Acquiring Corporation will not result in
(i) a violation of Maryland law or of the Acquiring Corporation's Charter, as
amended, or By-Laws, (ii) a violation or breach of, or constitute a default
under, any material agreement, indenture, instrument, contract, lease or other
undertaking known to counsel to which the Acquiring Fund is a party or by which
it is bound, and the execution, delivery and performance of this Agreement by
the Acquiring Fund will not result in the acceleration of any obligation, or the
imposition of any penalty, under any agreement, indenture, instrument, contract,
lease, judgment or decree to which the Acquiring Fund is a party or by which it
is bound, or (iii) the creation or imposition of any lien, charge or encumbrance
on any property or assets of the Acquiring Fund;
(e) No material litigation or administrative proceeding or
investigation of or before any court or governmental body is presently pending
or to its knowledge threatened against the Acquiring Fund or any properties or
assets held by it. The Acquiring Fund knows of no facts that might form the
basis for the institution of such proceedings that would materially and
adversely affect its business and is not a party to or subject to the provisions
of any order, decree or judgment of any court or governmental body which
materially and adversely affects its business or its ability to consummate the
transactions herein contemplated;
(f) The Statements of Assets and Liabilities, Operations, and Changes
in Net Assets, the Financial Highlights, and the Investment Portfolio of the
Acquiring Fund at and for the fiscal year ended December 31, 2003, have been
audited by Ernst & Young LLP, independent public auditors, and are in accordance
with GAAP consistently applied, and such statements (a copy of each of which has
been furnished to the Target Fund) present fairly, in all material respects, the
financial position of the Acquiring Fund as of such date in accordance with
GAAP, and there are no known contingent liabilities of the Acquiring Fund
required to be reflected on a balance sheet (including the notes thereto) in
accordance with GAAP as of such date not disclosed therein;
(g) Since December 31, 2003, there has not been any material adverse
change in the Acquiring Fund's financial condition, assets, liabilities or
business other than changes occurring in the ordinary course of business, or any
incurrence by the Acquiring Fund of indebtedness maturing more than one year
from the date such indebtedness was incurred except as otherwise disclosed to
and accepted in writing by the Target Fund. For purposes of this subsection (g),
a decline in net asset value per share of the Acquiring Fund due to declines in
market values of securities in the Acquiring Fund's portfolio, the discharge of
Acquiring Fund liabilities, or the redemption of Acquiring Fund shares by
Acquiring Fund shareholders shall not constitute a material adverse change;
(h) At the date hereof and at the Closing Date, all federal and other
tax returns and reports of the Acquiring Fund required by law to have been filed
by such dates (including any extensions) shall have been filed and are or will
be correct in all material respects, and all federal and other taxes shown as
due or required to be shown as due on said returns and reports shall have been
paid or provision shall have been made for the payment thereof, and, to the best
of the Acquiring Fund's knowledge, no such return is currently under audit and
no assessment has been asserted with respect to such returns;
(i) For each taxable year of its operation, the Acquiring Fund has met
the requirements of Subchapter M of the Code for qualification and treatment as
a regulated investment company and has elected to be treated as such, has been
eligible to and has computed its federal income tax under Section 852 of the
Code, and will do so for the taxable year including the Closing Date;
(j) All issued and outstanding shares of the Acquiring Fund (i) have
been offered and sold in every state and the District of Columbia in compliance
in all material respects with applicable registration requirements of the 1933
Act and state securities laws and (ii) are, and on the Closing Date will be,
duly and validly issued and outstanding, fully paid and non-assessable, and not
subject to preemptive or dissenter's rights. The Acquiring Fund does not have
outstanding any options, warrants or other rights to subscribe for or purchase
any of the Acquiring Fund shares, nor is there outstanding any security
convertible into any of the Acquiring Fund shares;
(k) The Acquiring Fund Shares to be issued and delivered to the Target
Fund, for the account of the Target Fund Shareholders, pursuant to the terms of
this Agreement, will at the Closing Date have been duly authorized and, when so
issued and delivered, will be duly and validly issued and outstanding Acquiring
Fund Shares, and will be fully paid and non-assessable;
(l) At the Closing Date, the Acquiring Fund will have good and
marketable title to the Acquiring Fund's assets, free of any liens or other
encumbrances, except those liens or encumbrances as to which the Target Fund has
received notice at or prior to the Closing;
(m) The execution, delivery and performance of this Agreement will have
been duly authorized prior to the Closing Date by all necessary action on the
part of the Board members of the Acquiring Corporation (including the
determinations required by Rule 17a-8(a) under the 1940 Act), and this Agreement
will constitute a valid and binding obligation of the Acquiring Corporation, on
behalf of the Acquiring Fund, enforceable in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws relating to or affecting creditors'
rights and to general equity principles;
(n) The information to be furnished by the Acquiring Fund for use in
applications for orders, registration statements or proxy materials or for use
in any other document filed or to be filed with any federal, state or local
regulatory authority (including the NASD), which may be necessary in connection
with the transactions contemplated hereby, shall be accurate and complete in all
material respects and shall comply in all material respects with federal
securities and other laws and regulations applicable thereto;
(o) The current prospectus and statement of additional information of
the Acquiring Fund conform in all material respects to the applicable
requirements of the 1933 Act and the 1940 Act and the rules and regulations of
the Commission thereunder and do 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;
(p) The Proxy Statement to be included in the Registration Statement,
only insofar as it relates to the Acquiring Fund, will, on the effective date of
the Registration Statement and on the Closing Date, (i) comply in all material
respects with the provisions and Regulations of the 1933 Act, 1934 Act, and 1940
Act and (ii) not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which such statements
were made, not materially misleading; provided, however, that the
representations and warranties in this section shall not apply to statements in
or omissions from the Proxy Statement and the Registration Statement made in
reliance upon and in conformity with information that was furnished or should
have been furnished by the Target Fund for use therein; and
(q) The Acquiring Fund agrees to use all reasonable efforts to obtain
the approvals and authorizations required by the 1933 Act, the 1940 Act and such
of the state securities laws as may be necessary in order to continue its
operations after the Closing Date.
5. Covenants of the Acquiring Fund and the Target Fund
5.1. Each Fund covenants to operate its business in the ordinary course
between the date hereof and the Closing Date, it being understood that (a) such
ordinary course of business will include (i) the declaration and payment of
customary dividends and other distributions and (ii) such changes as are
contemplated by the Fund's normal operations; and (b) each Fund shall retain
exclusive control of the composition of its portfolio until the Closing Date. No
party shall take any action that would, or reasonably would be expected to,
result in any of its representations and warranties set forth in this Agreement
being or becoming untrue in any material respect. Each Fund covenants and agrees
to coordinate the respective portfolios of the Acquiring Fund and the Target
Fund from the date of the Agreement up to and including the Closing Date in
order that at Closing, when the Assets are added to the Acquiring Fund's
portfolio, the resulting portfolio will meet the Acquiring Fund's investment
objective, policies and restrictions, as set forth in the Acquiring Fund's
Prospectus, a copy of which has been delivered to the Target Fund.
5.2. Upon reasonable notice, the Acquiring Fund's officers and agents
shall have reasonable access to the Target Fund's books and records necessary to
maintain current knowledge of the Target Fund and to ensure that the
representations and warranties made by the Target Fund are accurate.
5.3. The Target Fund covenants to call a meeting of the Target Fund
Shareholders entitled to vote thereon to consider and act upon this Agreement
and to take all other reasonable action necessary to obtain approval of the
transactions contemplated herein. Such meeting shall be scheduled for no later
than April 30, 2004 .
5.4. The Target Fund covenants that the Acquiring Fund Shares to be
issued hereunder are not being acquired for the purpose of making any
distribution thereof other than in accordance with the terms of this Agreement.
5.5. The Target Fund covenants that it will assist the Acquiring Fund
in obtaining such information as the Acquiring Fund reasonably requests
concerning the beneficial ownership of the Target Fund shares.
5.6. Subject to the provisions of this Agreement, each Fund will take,
or cause to be taken, all actions, and do or cause to be done, all things
reasonably necessary, proper and/or advisable to consummate and make effective
the transactions contemplated by this Agreement.
5.7. Each Fund covenants to prepare in compliance with the 1933 Act,
the 1934 Act and the 1940 Act the Registration Statement on Form N-14 (the
"Registration Statement") in connection with the meeting of the Target Fund
Shareholders to consider approval of this Agreement and the transactions
contemplated herein. The Acquiring Fund will file the Registration Statement,
including the Proxy Statement, with the Commission. The Target Fund will provide
the Acquiring Fund with information reasonably necessary for the preparation of
a prospectus, which will include the Proxy Statement referred to in section
4.1(o), all to be included in the Registration Statement, in compliance in all
material respects with the 1933 Act, the 1934 Act and the 1940 Act.
5.8. The Target Fund covenants that it will, from time to time, as and
when reasonably requested by the Acquiring Fund, execute and deliver or cause to
be executed and delivered all such assignments and other instruments, and will
take or cause to be taken such further action as the Acquiring Fund may
reasonably deem necessary or desirable in order to vest in and confirm the
Acquiring Fund's title to and possession of all the assets and otherwise to
carry out the intent and purpose of this Agreement.
5.9. The Acquiring Fund covenants to use all reasonable efforts to
obtain the approvals and authorizations required by the 1933 Act and 1940 Act,
and such of the state securities laws as it deems appropriate in order to
continue its operations after the Closing Date and to consummate the
transactions contemplated herein; provided, however, that the Acquiring Fund may
take such actions it reasonably deems advisable after the Closing Date as
circumstances change.
5.10. The Acquiring Fund covenants that it will, from time to time, as
and when reasonably requested by the Target Fund, execute and deliver or cause
to be executed and delivered all such assignments, assumption agreements,
releases, and other instruments, and will take or cause to be taken such further
action, as the Target Fund may reasonably deem necessary or desirable in order
to (i) vest and confirm to the Target Fund title to and possession of all
Acquiring Fund shares to be transferred to the Target Fund pursuant to this
Agreement and (ii) assume the liabilities from the Target Fund.
5.11. As soon as reasonably practicable after the Closing, the Target
Fund shall make a liquidating distribution to its shareholders consisting of the
Acquiring Fund Shares received at the Closing.
5.12. Each Fund shall use its reasonable best efforts to fulfill or
obtain the fulfillment of the conditions precedent to effect the transactions
contemplated by this Agreement as promptly as practicable.
5.13. The intention of the parties is that the transaction will qualify
as a reorganization within the meaning of Section 368(a) of the Code. Neither
the Corporations nor the Funds shall take any action, or cause any action to be
taken (including, without limitation, the filing of any tax return) that is
inconsistent with such treatment or results in the failure of a transaction to
qualify as a reorganization within the meaning of Section 368(a) of the Code. At
or prior to the Closing Date, each Corporation and each Fund will take such
action, or cause such action to be taken, as is reasonably necessary to enable
Dechert LLP to render the tax opinion contemplated herein in section 8.5.
5.14. At or immediately prior to the Closing, the Target Fund will
declare and pay to its stockholders a dividend or other distribution in an
amount large enough so that it will have distributed all of its investment
company taxable income (computed without regard to any deduction for dividends
paid) and realized net capital gain, if any, for the current taxable year
through the Closing Date.
6. Conditions Precedent to Obligations of the Target Fund
With respect to the Reorganization, the obligations of a Target Fund to
consummate the transactions provided for herein shall be subject, at its
election, to the performance by the Acquiring Fund of all the obligations to be
performed by it hereunder on or before the Closing Date, and, in addition
thereto, the following further conditions:
6.1. All representations and warranties of the Acquiring Corporation,
on behalf of the Acquiring Fund, contained in this Agreement shall be true and
correct in all material respects as of the date hereof and, except as they may
be affected by the transactions contemplated by this Agreement, as of the
Closing Date, with the same force and effect as if made on and as of the Closing
Date; and there shall be (i) no pending or threatened litigation brought by any
person (other than the Target Fund, its adviser or any of their affiliates)
against the Acquiring Fund or its investment adviser(s), Board members or
officers arising out of this Agreement and (ii) no facts known to the Acquiring
Fund which the Acquiring Fund reasonably believes might result in such
litigation.
6.2. The Acquiring Fund shall have delivered to the Target Fund on the
Closing Date a certificate executed in its name by its President or a Vice
President, in a form reasonably satisfactory to the Target Corporation, on
behalf of the Target Fund, and dated as of the Closing Date, to the effect that
the representations and warranties of the Acquiring Corporation with respect to
the Acquiring Fund made in this Agreement are true and correct on and as of the
Closing Date, except as they may be affected by the transactions contemplated by
this Agreement, and as to such other matters as the Target Fund shall reasonably
request.
6.3. The Target Fund shall have received on the Closing Date an opinion
of counsel, in a form reasonably satisfactory to the Target Fund, and dated as
of the Closing Date, to the effect that:
(a) The Acquiring Corporation is a corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland; (b) the
Acquiring Fund has the power to carry on its business as presently conducted in
accordance with the description thereof in the Acquiring Corporation's
registration statement under the 1940 Act; (c) the Agreement has been duly
authorized, executed and delivered by the Acquiring Corporation, on behalf of
the Acquiring Fund, and constitutes a valid and legally binding obligation of
the Acquiring Corporation, on behalf of the Acquiring Fund, enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and laws of general applicability relating
to or affecting creditors' rights and to general equity principles; (d) the
execution and delivery of the Agreement did not, and the exchange of the Target
Fund's assets for Acquiring Fund Shares pursuant to the Agreement will not,
violate the Acquiring Corporation's Charter, as amended, or By-laws; and (e) to
the knowledge of such counsel, and without any independent investigation, (i)
the Acquiring Corporation is not subject to any litigation or other proceedings
that might have a materially adverse effect on the operations of the Acquiring
Corporation, (ii) the Acquiring Corporation is duly registered as an investment
company with the Commission and is not subject to any stop order; and (iii) all
regulatory consents, authorizations, approvals or filings required to be
obtained or made by the Acquiring Fund under the federal laws of the United
States or the laws of the State of Maryland for the exchange of the Target
Fund's assets for Acquiring Fund Shares, pursuant to the Agreement have been
obtained or made.
In rendering such opinion, such counsel may (1) rely, as to
matters governed by the laws of the State of Maryland, on an opinion of
competent Maryland counsel, (2) make assumptions regarding the authenticity,
genuineness, and/or conformity of documents and copies thereof without
independent verification thereof, (3) limit such opinion to applicable federal
and state law, and (4) define the word "knowledge" and related terms to mean the
knowledge of attorneys then with such counsel who have devoted substantive
attention to matters directly related to this Agreement and the Reorganization.
The delivery of such opinion is conditioned upon receipt by
counsel of customary representations it shall reasonably request of each of the
Acquiring Corporation and the Target Corporation, on behalf of the Acquiring
Fund and the Target Fund, respectively.
6.4. The Acquiring Fund shall have performed all of the covenants and
complied with all of the provisions required by this Agreement to be performed
or complied with by the Acquiring Fund on or before the Closing Date.
7. Conditions Precedent to Obligations of the Acquiring Fund
With respect to the Reorganization, the obligations of the Acquiring
Fund to consummate the transactions provided for herein shall be subject, at its
election, to the performance by the Target Fund of all of the obligations to be
performed by it hereunder on or before the Closing Date and, in addition
thereto, the following further conditions:
7.1. All representations and warranties of the Target Corporation, on
behalf of the Target Fund, contained in this Agreement shall be true and correct
in all material respects as of the date hereof and, except as they may be
affected by the transactions contemplated by this Agreement, as of the Closing
Date, with the same force and effect as if made on and as of the Closing Date;
and there shall be (i) no pending or threatened litigation brought by any person
(other than the Acquiring Fund, its adviser or any of their affiliates) against
the Target Fund or its investment adviser(s), Board members or officers arising
out of this Agreement and (ii) no facts known to the Target Fund which the
Target Fund reasonably believes might result in such litigation.
7.2. The Target Fund shall have delivered to the Acquiring Fund a
statement of the Target Fund's assets and liabilities as of the Closing Date,
certified by the Treasurer of the Target Fund.
7.3. The Target Fund shall have delivered to the Acquiring Fund on the
Closing Date a certificate executed in its name by its President or a Vice
President, in a form reasonably satisfactory to the Acquiring Corporation, on
behalf of the Acquiring Fund, and dated as of the Closing Date, to the effect
that the representations and warranties of the Target Corporation with respect
to the Target Fund made in this Agreement are true and correct on and as of the
Closing Date, except as they may be affected by the transactions contemplated by
this Agreement, and as to such other matters as the Acquiring Fund shall
reasonably request.
7.4. The Acquiring Fund shall have received on the Closing Date an
opinion of counsel, in a form reasonably satisfactory to the Acquiring Fund, and
dated as of the Closing Date, to the effect that:
(a) The Target Corporation is a corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland; (b) the
Target Fund has the power to carry on its business as presently conducted in
accordance with the description thereof in the Target Corporation's registration
statement under the 1940 Act; (c) the Agreement has been duly authorized,
executed and delivered by the Target Corporation, on behalf of the Target Fund,
and constitutes a valid and legally binding obligation of the Target
Corporation, on behalf of the Target Fund, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and laws of general applicability relating to or affecting creditors'
rights and to general equity principles; (d) the execution and delivery of the
Agreement did not, and the exchange of the Target Fund's assets for Acquiring
Fund Shares pursuant to the Agreement will not, violate the Target Corporation's
Charter, as amended, or By-laws; and (e) to the knowledge of such counsel, and
without any independent investigation,(i) the Target Corporation is not subject
to any litigation or other proceedings that might have a materially adverse
effect on the operations of the Target Corporation, (ii) the Target Corporation
is duly registered as an investment company with the Commission and is not
subject to any stop order, and (iii) all regulatory consents, authorizations,
approvals or filings required to be obtained or made by the Target Fund under
the federal laws of the United States or the laws of the State of Maryland for
the exchange of the Target Fund's assets for Acquiring Fund Shares, pursuant to
the Agreement have been obtained or made.
In rendering such opinion, such counsel may (1) rely, as to
matters governed by the laws of the State of Maryland, on an opinion of
competent Maryland counsel, (2) make assumptions regarding the authenticity,
genuineness, and/or conformity of documents and copies thereof without
independent verification thereof, (3) limit such opinion to applicable federal
and state law, and (4) define the word "knowledge" and related terms to mean the
knowledge of attorneys then with such counsel who have devoted substantive
attention to matters directly related to this Agreement and the Reorganization.
The delivery of such opinion is conditioned upon receipt by
counsel of customary representations it shall reasonably request of each of the
Acquiring Corporation and the Target Corporation, on behalf of the Acquiring
Fund and the Target Fund, respectively.
7.5. The Target Fund shall have performed all of the covenants and
complied with all of the provisions required by this Agreement to be performed
or complied with by the Target Fund on or before the Closing Date.
8. Further Conditions Precedent to Obligations of the Acquiring Fund and the
Target Fund
If any of the conditions set forth below have not been met on or before
the Closing Date with respect to the Target Fund or the Acquiring Fund, the
other party to this Agreement shall, at its option, not be required to
consummate the transactions contemplated by this Agreement:
8.1. This Agreement and the transactions contemplated herein, with
respect to the Target Fund, shall have been approved by the requisite vote of
the holders of the outstanding shares of the Target Fund in accordance with the
provisions of the Target Corporation's Charter, as amended, and By-Laws,
applicable Maryland law and the 1940 Act, and certified copies of the
resolutions evidencing such approval shall have been delivered to the Acquiring
Fund. Notwithstanding anything herein to the contrary, neither the Acquiring
Fund nor the Target Fund may waive the conditions set forth in this section 8.1.
8.2. On the Closing Date, no action, suit or other proceeding shall be
pending or to its knowledge threatened before any court or governmental agency
in which it is sought to restrain or prohibit, or obtain material damages or
other relief in connection with, this Agreement or the transactions contemplated
herein.
8.3. All consents of other parties and all other consents, orders and
permits of federal, state and local regulatory authorities deemed necessary by
the Acquiring Fund or the Target Fund to permit consummation, in all material
respects, of the transactions contemplated hereby shall have been obtained,
except where failure to obtain any such consent, order or permit would not
involve a risk of a material adverse effect on the assets or properties of the
Acquiring Fund or the Target Fund, provided that either party hereto may for
itself waive any of such conditions.
8.4. The Registration Statement shall have become effective under the
1933 Act and no stop orders 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 0000 Xxx.
8.5. The parties shall have received an opinion of Dechert LLP
addressed to each of the Acquiring Fund and the Target Fund, in a form
reasonably satisfactory to each such party to this Agreement, substantially to
the effect that, based upon certain facts, assumptions and representations of
the parties, for federal income tax purposes: (i) the transfer to the Acquiring
Fund of all of the assets of the Target Fund in exchange solely for Acquiring
Fund Shares and the assumption by the Acquiring Fund of all of the liabilities
of the Target Fund, followed by the distribution of such shares to the Target
Fund Shareholders in exchange for their shares of the Target Fund in complete
liquidation of the Target Fund, will constitute a "reorganization" within the
meaning of Section 368(a)(1) of the Code, and the Acquiring Fund and the Target
Fund will each be "a party to a reorganization" within the meaning of Section
368(b) of the Code; (ii) no gain or loss will be recognized by the Target Fund
upon the transfer of all or substantially all of its assets to the Acquiring
Fund in exchange solely for Acquiring Fund Shares and the assumption by the
Acquiring Fund of all of the liabilities of the Target Fund; (iii) the basis of
the assets of the Target Fund in the hands of the Acquiring Fund will be the
same as the basis of such assets of the Target Fund immediately prior to the
transfer; (iv) the holding period of the assets of the Target Fund in the hands
of the Acquiring Fund will include the period during which such assets were held
by the Target Fund; (v) no gain or loss will be recognized by the Acquiring Fund
upon the receipt of the assets of the Target Fund in exchange for Acquiring Fund
Shares and the assumption by the Acquiring Fund of all of the liabilities of the
Target Fund; (vi) no gain or loss will be recognized by Target Fund Shareholders
upon the receipt of the Acquiring Fund Shares solely in exchange for their
shares of the Target Fund as part of the transaction; (vii) the basis of the
Acquiring Fund Shares received by Target Fund Shareholders will be the same as
the basis of the shares of the Target Fund exchanged therefor; and (viii) the
holding period of Acquiring Fund Shares received by Target Fund Shareholders
will include the holding period during which the shares of the Target Fund
exchanged therefor were held, provided that at the time of the exchange the
shares of the Target Fund were held as capital assets in the hands of Target
Fund Shareholders. The delivery of such opinion is conditioned upon receipt by
Dechert LLP of representations it shall request of each of the Acquiring
Corporation and the Target Corporation. Notwithstanding anything herein to the
contrary, neither the Acquiring Fund nor the Target Fund may waive the condition
set forth in this section 8.5. No opinion will be expressed by Dechert LLP,
however, as to whether (a) any accrued market discount will be required to be
recognized as ordinary income or (b) any gain or loss will be recognized (i) by
the Target Fund in connection with the transfer from the Target Fund to the
Acquiring Fund of any section 1256 contracts (as defined in Section 1256 of the
Code) or (ii) by the Target Fund or the Acquiring Fund in connection with any
dispositions of assets by such Fund prior to or following its respective
Reorganization.
9. Indemnification
9.1. The Acquiring Fund agrees to indemnify and hold harmless the
Target Fund and each of such Target Fund's Board members and officers from and
against any and all losses, claims, damages, liabilities or expenses (including,
without limitation, the payment of reasonable legal fees and reasonable costs of
investigation) to which jointly and severally, the Target Fund or any of its
Board members or officers may become subject, insofar as any such loss, claim,
damage, liability or expense (or actions with respect thereto) arises out of or
is based on any breach by the Acquiring Fund of any of its representations,
warranties, covenants or agreements set forth in this Agreement.
9.2. The Target Fund agrees to indemnify and hold harmless the
Acquiring Fund and each of such Acquiring Fund's Board members and officers from
and against any and all losses, claims, damages, liabilities or expenses
(including, without limitation, the payment of reasonable legal fees and
reasonable costs of investigation) to which jointly and severally, the Acquiring
Fund or any of its Board members or officers may become subject, insofar as any
such loss, claim, damage, liability or expense (or actions with respect thereto)
arises out of or is based on any breach by the Target Fund of any of its
representations, warranties, covenants or agreements set forth in this
Agreement.
10. Fees and Expenses
10.1. Each of the Acquiring Corporation, on behalf of the Acquiring
Fund, and the Target Corporation, on behalf of the Target Fund, represents and
warrants to the other that it has no obligations to pay any brokers or finders
fees in connection with the transactions provided for herein.
10.2. HL Advisors, or affiliates thereof, will bear all the expenses
associated with the Reorganization. Any such expenses so borne by HL Advisors,
or affiliates thereof, will be solely and directly related to the
Reorganization, within the meaning of Revenue Ruling 73-54, 1973-1 C.B. 187.
Target Fund Shareholders will pay their own expenses, if any, incurred in
connection with the Reorganization.
11. Entire Agreement; Survival of Warranties
11.1. Each Fund agrees that no party has made any representation,
warranty or covenant not set forth herein and that this Agreement constitutes
the entire agreement between the parties.
11.2. Except as specified in the next sentence set forth in this
section 11.2, the representations, warranties and covenants contained in this
Agreement or in any document delivered pursuant hereto or in connection herewith
shall not survive the consummation of the transactions contemplated hereunder.
The covenants to be performed after the Closing and the obligations of each of
the Acquiring Fund and the Target Fund in sections 9.1 and 9.2 shall survive the
Closing.
12. Termination
12.1. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned by any party as it relates to the
transaction applicable to such party (i) by the mutual agreement of the parties,
or (ii) by either party if the Closing shall not have occurred on or before
April 30, 2004, unless such date is extended by mutual agreement of the parties,
or (iii) by either party if the other party shall have materially breached its
obligations under this Agreement or made a material and intentional
misrepresentation herein or in connection herewith. In the event of any such
termination, this Agreement shall become void and there shall be no liability
hereunder on the part of any party or their respective Board members or
officers, except for any such material breach or intentional misrepresentation,
as to each of which all remedies at law or in equity of the party adversely
affected shall survive.
13. Amendments
This Agreement may be amended, modified or supplemented in such manner
as may be mutually agreed upon in writing by any authorized officer of the
Target Fund and any authorized officer of the Acquiring Fund; provided, however,
that following the meeting of the Target Fund Shareholders called by the Target
Fund pursuant to section 5.3 of this Agreement, no such amendment may have the
effect of changing the provisions for determining the number of the Acquiring
Fund Shares to be issued to the Target Fund Shareholders under this Agreement to
the detriment of such shareholders without their further approval.
14. Notices
Any notice, report, statement or demand required or permitted by any
provisions of this Agreement shall be in writing and shall be deemed duly given
if delivered by hand (including by Federal Express or similar express courier)
or transmitted by facsimile or three days after being mailed by prepaid
registered or certified mail, return receipt requested, addressed to the Target
Fund, 000 Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, with a copy to Dechert
LLP, 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention:
Xxxx X. X'Xxxxxx, Esq., or to the Acquiring Fund, 000 Xxxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000, with a copy to Dechert LLP, 000 Xxxxxxxxx Xxxxxx,
00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxx X. X'Xxxxxx, Esq., or
to any other address that the Target Fund or the Acquiring Fund shall have last
designated by notice to the other party.
15. Headings; Counterparts; Assignment; Limitation of Liability
15.1. The Article and section headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15.2. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original.
15.3. This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns, but no assignment or
transfer hereof or of any rights or obligations hereunder shall be made by any
party without the written consent of the other party. Nothing herein expressed
or implied is intended or shall be construed to confer upon or give any person,
firm or corporation, other than the parties hereto and the shareholders of the
Acquiring Fund and the Target Fund and their respective successors and assigns,
any rights or remedies under or by reason of this Agreement.
15.4. Notwithstanding anything to the contrary contained in this
Agreement, the obligations, agreements, representations and warranties with
respect to each Fund shall constitute the obligations, agreements,
representations and warranties of that Fund only (the "Obligated Fund"), and in
no event shall any other series of the Corporations or the assets of any such
series be held liable with respect to the breach or other default by the
Obligated Fund of its obligations, agreements, representations and warranties as
set forth herein.
15.5. This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Maryland, without regard to its
principles of conflicts of laws.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by an authorized officer and its seal to be affixed
thereto and attested by its Secretary or Assistant Secretary.
Attest: HARTFORD SERIES FUND, INC.
on behalf of Hartford Bond HLS Fund
/s/ Xxxxxx Xxxxxx
-------------------
Assistant Secretary
/s/ Xxxxx X. Xxxx
--------------------------
By: Xxxxx X. Xxxx
Its: Vice President
HARTFORD HLS SERIES FUND II, INC.
Attest: on behalf of Hartford Multisector
Bond HLS Fund
/s/ Xxxxxx Xxxxxx
-------------------
Assistant Secretary
/s/ Xxxxx X. Xxxx
--------------------------
By: Xxxxx X. Xxxx
Its: Vice President
AGREED TO AND ACKNOWLEDGED
ONLY WITH RESPECT TO
PARAGRAPH 10.2 HERETO
HL INVESTMENT ADVISORS, LLC
/s/ Xxxxx X. Xxxxxxxxxxxx
----------------------------------
By: Xxxxx X. Xxxxxxxxxxxx
Its: Senior Vice President
SIDE AGREEMENT
This side agreement (the "Side Agreement") is made as of this 21st day
of April, 2004, by and among Hartford Series Fund, Inc. (the "Acquiring
Corporation"), a Maryland corporation, on behalf of Hartford Bond HLS Fund, (the
"Acquiring Fund"), a separate series of the Acquiring Corporation, and Hartford
HLS Series Fund II, Inc. (the "Target Corporation" and, together with the
Acquiring Corporation, each a "Corporation" and collectively the
"Corporations"), a Maryland Corporation, on behalf of Hartford Multisector Bond
HLS Fund (the "Target Fund" and, together with the Acquiring Fund, each a "Fund"
and collectively the "Funds"), a separate series of the Target Corporation.
Whereas, the Corporations and the Funds are entering into an Agreement
and Plan of Reorganization dated April 21st, 2004 (the "Agreement") which will
result in the transfer of all of the assets of the Target Fund to the Acquiring
Fund in exchange solely for Class IA voting shares of capital stock of the
Acquiring Fund, the assumption by the Acquiring Fund of all of the liabilities
of the Target Fund and the distribution of the Acquiring Fund shares to the
Class IA shareholders of the Target Fund in complete liquidation of the Target
Fund; and
Whereas, the Target Fund represents and warrants to the Acquiring Fund
in section 4.1(e) of the Agreement that no material litigation or administrative
proceeding or investigation of or before any court or governmental body is
presently pending or to its knowledge threatened against the Target Fund or any
properties or assets held by it, and that the Target Fund knows of no facts that
might form the basis for the institution of such proceedings that would
materially and adversely affect its business and is not a party to or subject to
the provisions of any order, decree or judgment of any court or governmental
body which materially and adversely affects its business or its ability to
consummate the transactions herein contemplated; and
Whereas, the Acquiring Fund represents and warrants to the Target Fund
in section 4.2(e) of the Agreement that no material litigation or administrative
proceeding or investigation of or before any court or governmental body is
presently pending or to its knowledge threatened against the Acquiring Fund or
any properties or assets held by it, and that the Acquiring Fund knows of no
facts that might form the basis for the institution of such proceedings that
would materially and adversely affect its business and is not a party to or
subject to the provisions of any order, decree or judgment of any court or
governmental body which materially and adversely affects its business or its
ability to consummate the transactions herein contemplated; and
Whereas, the Target Fund is to receive an opinion of counsel, pursuant
to section 6.3(e)(i) of the Agreement, that the Acquiring Corporation is not
subject to any litigation or other proceedings that might have a materially
adverse effect on the operations of the Acquiring Corporation; and
Whereas, the Acquiring Fund is to receive an opinion of counsel,
pursuant to section 7.4(e)(i) of the Agreement, that the Target Corporation is
not subject to litigation or other proceedings that might have a materially
adverse effect on the operations of the Target Corporation;
Now, therefore, in consideration of the premises and mutual covenants
herein contained, it is hereby agreed that the Target Fund and the Acquiring
Fund will waive the representations made to one another in sections 4.1(e) and
4.2(e) of the Agreement; and that the Target Fund and the Acquiring Fund will
waive the requirements for receipt of opinions of counsel pursuant to sections
6.3(e)(i) and 7.4(e)(i) of the Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Side Agreement to
be executed by an authorized officer and its seal to be affixed thereto and
attested by its Secretary or Assistant Secretary.
Attest: HARTFORD SERIES FUND, INC.
on behalf of Hartford Bond HLS Fund
/s/ Xxxxxx Xxxxxx
-------------------
Assistant Secretary
/s/ Xxxxx X. Xxxx
--------------------------
By: Xxxxx X. Xxxx
Its: Vice President
HARTFORD HLS SERIES FUND II, INC.
on behalf of Hartford Multisector
Bond HLS Fund
Attest:
/s/ Xxxxxx Xxxxxx
--------------------
Assistant Secretary
/s/ Xxxxx X. Xxxx
--------------------------
By: Xxxxx X. Xxxx
Its: Vice President
