EXHIBIT A
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION is dated as of June 20, 2002
("Agreement"), by and between Strong Common Stock Fund, Inc. and Strong
Opportunity Fund, Inc. (together referred to as the "Corporations"), each a
Wisconsin corporation, to provide for the reorganization of Strong Advisor Focus
Fund ("Selling Fund"), a series of Strong Common Stock Fund, Inc., into Strong
Advisor Select Fund ("Acquiring Fund"), a series of Strong Opportunity Fund,
Inc. The Selling Fund and the Acquiring Fund are sometimes referred to
collectively as the "Funds" and individually as a "Fund."
PRELIMINARY STATEMENTS
A. The Selling Fund and the Acquiring Fund are series of Strong Common
Stock Fund, Inc. and Strong Opportunity Fund, Inc., respectively, which are
open-end management investment companies registered under the Investment Company
Act of 1940 ("1940 Act").
B. The Board of the Corporations has determined that the Reorganization (as
defined below) is in the best interests of each Fund and that the interests of
the existing shareholders of each Fund would not be diluted as a result of the
Reorganization.
C. 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 ("Code"). In consideration of the
mutual premises contained in this Agreement, the parties hereto agree to effect
the transfer of all of the assets of the Selling Fund solely in exchange for (a)
the assumption by the Acquiring Fund of certain stated liabilities of the
Selling Fund and (b) shares of the Acquiring Fund followed by the distribution,
as of the Effective Time (as defined in Section 9 of this Agreement), of such
shares of the Acquiring Fund to the shareholders of the Selling Fund on the
terms and conditions in this Agreement in liquidation of the Selling Fund (the
"Reorganization"). The shares of the Acquiring Fund that are given in exchange
for the assets of the Selling Fund are referred to as the "Acquiring Fund
Shares," and the shares of the Selling Fund that are held by the holders of such
shares at the Effective Time are referred to as the "Selling Fund Shares."
AGREEMENTS
The parties to this Agreement covenant and agree as follows:
1. PLAN OF REORGANIZATION. As of the Effective Time (as defined in Section
9, below), the Selling Fund will assign, deliver, and otherwise transfer all of
its assets and good and marketable title to the assets, free and clear of all
liens, encumbrances, and adverse claims except as provided in this Agreement,
and assign the stated liabilities as 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 Fund. The Acquiring Fund shall acquire all
these assets, and shall assume all these liabilities of the Selling Fund, in
exchange for delivery to the Selling Fund by the Acquiring Fund of a number of
its Acquiring Fund Shares (both full and fractional) equivalent in value to the
Selling Fund Shares of the Selling Fund outstanding immediately prior to the
Effective Time. The assets and stated liabilities of the Selling Fund, as set
forth in the Statement of Assets and Liabilities, shall be exclusively assigned
to and assumed by the Acquiring Fund. All debts, liabilities, obligations, and
duties of the Selling Fund, 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 Fund and may be enforced
against the Acquiring Fund to the same extent as if the same had been incurred
by the Acquiring Fund. If the Selling Fund is unable to make delivery of any of
its portfolio securities pursuant to this Section to the Acquiring Fund for the
reason that any of such securities purchased by the Selling Fund have not yet
been delivered to it by the Selling Fund's broker or brokers, then in lieu of
such delivery, the Selling Fund shall deliver to the Acquiring Fund, with
respect to these securities, executed copies of an agreement of assignment and
due bills executed on behalf of said broker or brokers, together with such other
documents as may be required by the Acquiring Fund, including brokers'
confirmation slips.
2. TRANSFER OF ASSETS. The assets of the Selling Fund to be acquired by the
Acquiring Fund shall include, without limitation, all cash, cash equivalents,
securities, receivables (including interest and dividends receivable), goodwill,
and intangible property, and deferred or prepaid expenses as set forth in the
Selling Fund's 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 Selling Fund and other property owned by the Selling
Fund at the Effective Time.
3. LIQUIDATION AND DISSOLUTION OF THE SELLING FUND. As of the Effective
Time, the Selling Fund will liquidate and the Acquiring Fund Shares (both full
and fractional) received by the Selling Fund will be issued to the shareholders
of record of the Selling Fund as of the Effective Time in exchange for Selling
Fund Shares and in complete liquidation of the Selling Fund. Each shareholder of
the Selling Fund will receive a number of Acquiring Fund Shares equal in value
to the Selling Fund Shares held by that shareholder. This liquidation and
issuance will be accomplished by the establishment of an open account on the
share records of the Acquiring Fund in the name of each shareholder of record of
the Selling Fund and representing the respective number of Acquiring Fund Shares
due that shareholder. Each Selling Fund shareholder shall also have the right to
receive any dividends or other distributions that were declared prior to the
Effective Time, but unpaid at that time, with respect to the Selling Fund Shares
that are held by such Selling Fund shareholders at the Effective Time. All
issued and outstanding shares of the Selling Fund shall then be cancelled on the
books of the Selling Fund. The Acquiring Fund shall not be required to issue
certificates representing Acquiring Fund shares in connection with the
Reorganization. An amendment to the Articles of Incorporation of Strong Common
Stock Fund, Inc. in a form not materially different from that attached as Annex
1 to this Agreement ("Articles Amendment") shall be filed to eliminate the
shares constituting the Selling Fund as a class of Strong Common Stock Fund,
Inc.'s common stock.
4. REPRESENTATIONS AND WARRANTIES OF THE ACQUIRING FUND. The Acquiring Fund
represents and warrants to the Selling Fund as follows:
(a) SHARES TO BE ISSUED UPON REORGANIZATION. The Acquiring Fund Shares to
be issued in connection with the Reorganization (i) have been duly authorized
and upon consummation of the Reorganization will be validly issued, fully paid,
and non-assessable, except to the extent provided in Section 180.0622(2)(b) of
the Wisconsin Statutes and (ii) will be duly registered in conformity with
applicable federal and state securities laws, and no shareholder of the
Acquiring Fund shall have any option, warrant, or preemptive right of
subscription or purchase with respect to the Acquiring Fund's Shares.
(b) LIABILITIES. There are no liabilities of the Acquiring Fund, whether or
not determined or determinable, other than liabilities disclosed or provided for
in the Acquiring Fund's statement of assets and liabilities, if any, and
liabilities incurred in the ordinary course of business prior to the Effective
Time or otherwise previously disclosed to the Selling Fund, none of which has
been materially adverse to the business, assets, or results of operations of the
Acquiring Fund.
(c) LITIGATION. Except as previously disclosed to the Selling Fund, there
are no claims, actions, suits, or proceedings pending or, to the actual
knowledge of the Acquiring Fund, threatened that would materially adversely
affect the Acquiring Fund or its assets or business or which would prevent or
hinder in any material respect consummation of the transactions contemplated by
this Agreement.
(d) TAXES. As of the Effective Time, all federal and other tax returns and
reports of the Acquiring Fund required by law to have been filed shall have been
filed, and all other taxes shall have been paid so far as due, or provision
shall have been made for the payment of them, 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 any of these returns.
(e) FEES AND EXPENSES. As of the Effective Time, there are no brokers or
finders entitled to receive any payments in connection with the transactions
provided for in this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF THE SELLING FUND. The Selling Fund
represents and warrants to the Acquiring Fund as follows:
(a) MARKETABLE TITLE TO ASSETS. The Selling Fund 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 Fund. Upon delivery and payment for these assets, the Acquiring
Fund will have good and marketable title to the assets without restriction on
the transfer of the assets free and clear of all liens, encumbrances, and
adverse claims.
(b) LIABILITIES. There are no liabilities of the Selling Fund, whether or
not determined or determinable, other than liabilities disclosed or provided for
in the Selling Fund's statement of assets and liabilities, and liabilities
incurred in the ordinary course of business prior to the Effective Time or
otherwise previously disclosed to the Acquiring Fund, none of which has been
materially adverse to the business, assets or results of operations of the
Selling Fund.
(c) LITIGATION. Except as previously disclosed to the Acquiring Fund, there
are no claims, actions, suits, or proceedings pending or, to the knowledge of
the Selling Fund, threatened that would materially adversely affect the Selling
Fund or its assets or business or that would prevent or hinder in any material
respect consummation of the transactions contemplated by this Agreement.
(d) TAXES. As of the Effective Time, all federal and other tax returns and
reports of the Selling Fund required by law to have been filed shall have been
filed, and all other taxes shall have been paid so far as due, or provision
shall have been made for the payment of them, and to the best of the Selling
Fund's knowledge, no such return is currently under audit and no assessment has
been asserted with respect to any of those returns.
(e) FEES AND EXPENSES. As of the Effective Time, there are no brokers or
finders entitled to receive any payments in connection with the transactions
provided for in this Agreement.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The
obligations of the Acquiring Fund under this Agreement shall be subject to the
following conditions:
(a) All representations and warranties of the Selling Fund contained in
this Agreement shall be true and correct in all material respects as of the date
of this Agreement 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) Strong Opportunity Fund, Inc. shall have received an opinion of Xxxxxxx
& Xxxx, S.C., counsel to both Funds, regarding the transaction, in form
reasonably satisfactory to Strong Opportunity Fund, Inc., and dated as of the
Effective Time, to the effect that:
(1) Strong Common Stock Fund, Inc. is a corporation duly organized,
validly existing, and in good standing under the laws of the State of
Wisconsin;
(2) the shares of the Selling Fund issued and outstanding at the
Effective Time are duly authorized and validly issued, fully paid, and
non-assessable by Strong Common Stock Fund, Inc., except to the extent
provided in Section 180.0622(2)(b) of the Wisconsin Statutes;
(3) this Agreement has been duly authorized, executed, and delivered
by Strong Common Stock Fund, Inc. and represents a valid and binding
contract of Strong Common Stock Fund, Inc., enforceable in accordance with
its terms, subject to the effect of bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and transfer, and other similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; provided, however, that no opinion need be
expressed with respect to provisions of this Agreement relating to
indemnification nor with respect to provisions of this Agreement intended
to limit liability for particular matters to the Selling Fund and its
assets;
(4) the execution and delivery of this Agreement did not, and the
consummation of the transactions contemplated by this Agreement will not,
violate the Amended and Restated Articles of Incorporation or Bylaws of
Strong Common Stock Fund, Inc. or any material agreement known to such
counsel to which Strong Common Stock Fund, Inc. is a party or by which it
is bound;
(5) to the knowledge of such counsel, no consent, approval,
authorization, or order of any court or governmental authority is required
for the consummation by the Selling Fund of the transactions contemplated
by this Agreement, except such as have been obtained under the Securities
Act of 1933 (the "1933 Act"), state securities laws, the 1940 Act, as
amended, and, the rules and regulations under those statutes; and
(6) Strong Common Stock Fund, Inc. is registered as an investment
company under the 1940 Act and such registration with the Securities and
Exchange Commission ("SEC") as an investment company under the 1940 Act is
in full force and effect.
Such opinion: (i) shall state that while such counsel has not verified, and
is not passing upon and does not assume responsibility for, the accuracy,
completeness, or fairness of any portion of the Form N-14 Registration Statement
relating to the Reorganization or any amendment thereof or supplement thereto,
it has generally reviewed and discussed certain information included therein
with respect to the Selling Fund and Strong Common Stock Fund, Inc. with certain
officers of Strong Common Stock Fund, Inc. and that in the course of such review
and discussion no facts came to the attention of such counsel that caused it to
believe that, on the respective effective or clearance dates of the Form N-14
Registration Statement, and any amendment thereof or supplement thereto and only
insofar as they relate to information with respect to Strong Common Stock Fund,
Inc. and the Selling Fund, the Form N-14 Registration Statement or any amendment
thereof or supplement thereto 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; (ii) shall state that such
counsel does not express any opinion or belief as to the financial statements,
other financial data, statistical data, or any information relating to Strong
Common Stock Fund, Inc. or the Selling Fund contained or incorporated by
reference in the Form N-14 Registration Statement; and (iii) shall state that
such opinion is solely for the benefit of Strong Opportunity Fund, Inc. and its
Board and officers.
In giving such opinion, Xxxxxxx & Xxxx, S.C. may rely upon officers'
certificates and certificates of public officials.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLING FUND. The obligations
of the Selling Fund under this Agreement shall be subject to the following
conditions:
(a) All representations and warranties of the Acquiring Fund contained in
this Agreement shall be true and correct in all material respects as of the date
of this Agreement 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) Strong Common Stock Fund, Inc. shall have received an opinion of
Xxxxxxx & Xxxx, S.C., counsel to both Funds, regarding the transaction, in form
reasonably satisfactory to Strong Common Stock Fund, Inc., and dated as of the
Effective Time, to the effect that:
(1) Strong Opportunity Fund, Inc. is a corporation duly organized,
validly existing, and in good standing under the laws of the State of
Wisconsin;
(2) the shares of the Acquiring Fund issued and outstanding at the
Effective Time are duly authorized and validly issued, fully paid, and
non-assessable by Strong Opportunity Fund, Inc., except to the extent
provided in Section 180.0622(2)(b) of the Wisconsin Statutes, and the
Acquiring Fund Shares to be delivered to the Selling Fund, as provided for
by this Agreement, are duly authorized and upon delivery pursuant to the
terms of this Agreement, will be validly issued, fully paid, and
non-assessable by Strong Opportunity Fund, Inc., except to the extent
provided in Section 180.0622(2)(b) of the Wisconsin Statutes, and no
shareholder of the Acquiring Fund has any option, warrant, or preemptive
right to subscription or purchase in respect thereof based on a review of
Strong Opportunity Fund, Inc.'s Amended and Restated Articles of
Incorporation and Bylaws and otherwise to such counsel's knowledge;
(3) the Board of Strong Opportunity Fund, Inc. has duly authorized the
Acquiring Fund as a class of common stock of Strong Opportunity Fund, Inc.
pursuant to the terms of the Amended and Restated Articles of Incorporation
of Strong Opportunity Fund, Inc.;
(4) this Agreement has been duly authorized, executed, and delivered
by Strong Opportunity Fund, Inc. and represents a valid and binding
contract of Strong Opportunity Fund, Inc., enforceable in accordance with
its terms, subject to the effect of bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and transfer, and other similar laws of
general applicability related to or affecting creditors' rights and to
general equity principles; provided, however, that no opinion need be
expressed with respect to provisions of this Agreement relating to
indemnification nor with respect to provisions of this Agreement intended
to limit liability for particular matters to the Acquiring Fund and its
assets;
(5) the execution and delivery of this Agreement did not, and the
consummation of the transactions contemplated by this Agreement will not,
violate the Amended and Restated Articles of Incorporation or Bylaws of
Strong Opportunity Fund, Inc. or any material agreement known to such
counsel to which Strong Opportunity Fund, Inc. is a party or by which it is
bound;
(6) to the knowledge of such counsel, no consent, approval,
authorization, or order of any court or governmental authority is required
for the consummation by Acquiring Fund of the transactions contemplated by
this Agreement, except such as have been obtained under the 0000 Xxx, xxxxx
securities laws, the 1940 Act, as amended, and, the rules and regulations
under those statutes; and
(7) Strong Opportunity Fund, Inc. is registered as an investment
company under the 1940 Act and such registration with the SEC as an
investment company under the 1940 Act is in full force and effect.
Such opinion: (i) shall state that while such counsel has not verified, and
is not passing upon and does not assume responsibility for, the accuracy,
completeness, or fairness of any portion of the Form N-14 Registration Statement
relating to the Reorganization or any amendment thereof or supplement thereto,
it has generally reviewed and discussed certain information included therein
with respect to the Acquiring Fund and Strong Opportunity Fund, Inc. with
certain officers of Strong Opportunity Fund, Inc. and that in the course of such
review and discussion no facts came to the attention of such counsel which
caused it to believe that, on the respective effective or clearance dates of the
Form N-14 Registration Statement and any amendment thereof or supplement thereto
and only insofar as they relate to information with respect to Strong
Opportunity Fund, Inc. and the Acquiring Fund, the Form N-14 Registration
Statement or any amendment thereof or supplement thereto contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; (ii)
shall state that such counsel does not express any opinion or belief as to the
financial statements, other financial data, statistical data, or information
relating to Strong Opportunity Fund, Inc. or the Acquiring Fund contained or
incorporated by reference in the Form N-14 Registration Statement; and (iii)
shall state that such opinion is solely for the benefit of Strong Common Stock
Fund, Inc. and its Board and officers.
In giving such opinion, Xxxxxxx & Xxxx, S.C. may rely upon officers'
certificates and certificates of public officials.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLING FUND AND THE
ACQUIRING FUND. The obligations of the Selling Fund and the Acquiring Fund to
effectuate this Agreement shall be subject to the satisfaction of each of the
following conditions as of the Effective Time:
(a) Any 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 Fund shall be
effective under the 1933 Act, and, to the best knowledge of the Acquiring Fund,
no investigation or proceeding for that purpose shall have been instituted or be
pending, threatened or contemplated under the 1933 Act.
(c) The Acquiring Fund has filed all documents and paid all fees required
to permit its shares to be offered to the public 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 Selling Fund and Acquiring Fund shall have received on or before
the Effective Time an opinion of Xxxxxx, Xxxxx & Bockius LLP satisfactory to the
Selling Fund and the Acquiring Fund substantially to the effect that the
Reorganization, as a tax-free reorganization within the meaning of Section
368(a) of the Code, will have the following U.S. federal income tax consequences
for Selling Fund shareholders, the Selling Fund, and the Acquiring Fund:
1. No gain or loss will be recognized by the Selling Fund upon the
transfer of its assets in exchange solely for Acquiring Fund Shares
and the assumption by the Acquiring Fund of the Selling Fund's stated
liabilities;
2. No gain or loss will be recognized by the Acquiring Fund on its
receipt of the Selling Fund's assets in exchange for Acquiring Fund
Shares and the assumption by the Acquiring Fund of the Selling Fund's
liabilities;
3. The basis of the Selling Fund's assets in the Acquiring Fund's hands
will be the same as the basis of those assets in the Selling Fund's
hands immediately before the Reorganization;
4. The Acquiring Fund's holding period for the assets transferred to the
Acquiring Fund by the Selling Fund will include the holding period of
those assets in the Selling Fund's hands immediately before the
Reorganization;
5. No gain or loss will be recognized by the Selling Fund on the
distribution of Acquiring Fund Shares to the Selling Fund's
shareholders in exchange for Selling Fund Shares;
6. No gain or loss will be recognized by the Selling Fund's shareholders
as a result of the Selling Fund's distribution of Acquiring Fund
Shares to the Selling Fund's shareholders in exchange for the Selling
Fund's shareholders' Selling Fund Shares;
7. The basis of the Acquiring Fund Shares received by the Selling Fund's
shareholders will be the same as the basis of that Selling Fund's
shareholders' Selling Fund Shares surrendered in exchange therefor;
and
8. The holding period of the Acquiring Fund Shares received by the
Selling Fund's shareholders will include the Selling Fund's
shareholders' holding period for the Selling Fund's shareholders'
Selling Fund Shares surrendered in exchange for the Acquiring Fund
Shares, provided that the Selling Fund Shares were held as capital
assets on the date of the Reorganization.
(e) This Agreement, the Reorganization, and the Articles Amendment
contemplated by this Agreement shall have been approved by the shareholders of
the Selling Fund in the manner required under the Wisconsin Statutes.
(f) The Board of Strong Opportunity Fund, Inc., at a meeting duly called
for such purpose, shall have authorized the issuance by the Acquiring Fund of
Acquiring Fund Shares as of the Effective Time in exchange for the assets of the
Selling Fund pursuant to the terms and provisions of this Agreement.
(g) Neither the Selling Fund nor the Acquiring Fund (nor the Corporations)
will take any action or cause any action to be taken that is inconsistent with
the treatment of the Reorganization as a reorganization within the meaning of
Section 368(a) of the Code or results in the failure of the transaction to
qualify as a reorganization with the meaning of Section 368(a) of the Code. At
or prior to the Effective Time, the parties will take such action, or cause such
action to be taken, as is reasonably necessary to enable Xxxxxx, Xxxxx & Xxxxxxx
LLP to deliver the tax opinion contemplated in this Agreement.
9. EFFECTIVE TIME OF THE REORGANIZATION. The exchange of the Selling Fund's
assets for corresponding Acquiring Fund Shares shall be effective as of 3:00
p.m., Central Time on October 11, 2002, or at such other time and date as fixed
by the mutual consent of the parties (the "Effective Time").
10. TERMINATION. This Agreement and the transactions contemplated by this
Agreement may be terminated and abandoned with respect to the Acquiring Fund
and/or the Selling Fund, without penalty, by resolution of the Board of Strong
Opportunity Fund, Inc. or Strong Common Stock Fund, Inc., respectively, or at
the discretion of any duly authorized officer of such Corporations, at any time
prior to the Effective Time, if circumstances should develop that, in the
opinion of such Board or officer, make proceeding with the Agreement
inadvisable. In the event of any such termination, there shall be no liability
for damages on the part of the Acquiring Fund, the Selling Fund, or the
Corporations, or their respective Board or officers.
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 amendment may have the effect of changing the
provisions for determining the number or value of Acquiring Fund Shares to be
paid to the Selling Fund's shareholders under this Agreement to the detriment of
the Selling Fund's shareholders without their further approval. Furthermore,
either party may waive any breach by the other party or the failure to satisfy
any of the conditions to its obligations (this waiver must be in writing and
authorized by any officer of the waiving party with or without the approval of
the party's shareholders).
12. INDEMNIFICATION.
(a) The Acquiring Fund shall indemnify, defend, and hold harmless the
Selling Fund, its directors, officers, employees, and agents against all losses,
claims, demands, liabilities, and expenses, including reasonable legal and other
expenses incurred in defending third-party claims, actions, suits, or
proceedings, arising from any of its representations, warranties, covenants, or
agreements set forth in this Agreement.
(b) The Selling Fund, with respect to any claim asserted prior to the
Effective Time, shall indemnify, defend, and hold harmless the Acquiring Fund,
its directors, officers, employees, and agents against all losses, claims,
demands, liabilities, and expenses, including reasonable legal and other
expenses incurred in defending third-party claims, actions, suits, or
proceedings, arising from any of its representations, warranties, covenants, or
agreements set forth in this Agreement.
13. FEES AND EXPENSES. Each Fund shall be solely liable for its own
expenses incurred in connection with entering into and carrying out the
transactions contemplated by this Agreement, whether or not the transactions
contemplated hereby are consummated.
14. 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 and their respective successors and assigns, but no assignment or
transfer of any rights or obligations shall be made by any party without the
written consent of the other party. Nothing in this Agreement expressed or
implied is intended nor shall be construed to confer upon or give any person,
firm, or corporation (other than the parties and their respective successors and
assigns) any rights or remedies under or by reason of this Agreement.
15. ENTIRE AGREEMENT. The Acquiring Fund and Selling Fund agree that
neither party has made any representation, warranty, or covenant not set forth
in this Agreement and that this Agreement constitutes the entire agreement
between the parties. The representations, warranties, and covenants contained in
this Agreement or in any document delivered pursuant to this Agreement or in
connection with this Agreement shall survive the consummation of the
transactions contemplated under this Agreement.
16. FURTHER ASSURANCES. The Acquiring Fund and Selling Fund shall take such
further action as may be necessary or desirable and proper to consummate the
transactions contemplated by this Agreement.
17. BINDING NATURE OF AGREEMENT. As provided in the Corporations' Bylaws,
as amended and supplemented to date, this Agreement was executed by the
undersigned officers of the respective Corporations, on behalf of the Selling
Fund and the Acquiring Fund, as officers and not individually. The obligations
of this Agreement are not binding upon the undersigned officers individually,
but are binding only upon the assets and property of the respective
Corporations. Moreover, no class or series of either Corporation shall be liable
for the obligations of any other classes or series of the Corporation,
respectively.
18. GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Wisconsin.
STRONG COMMON STOCK FUND, INC.
on behalf of STRONG ADVISOR FOCUS FUND
By ___________________________________
Name:
Title: Vice President
STRONG OPPORTUNITY FUND, INC.
on behalf of STRONG ADVISOR SELECT FUND
By ___________________________________
Name:
Title: Vice President
ANNEX 1 TO AGREEMENT AND PLAN OF REORGANIZATION
TO BE EFFECTIVE OCTOBER 14, 2002
AMENDMENT TO ARTICLES OF INCORPORATION
OF
STRONG COMMON STOCK FUND, INC.
The undersigned Assistant Secretary of Strong Common Stock Fund, Inc.
("Corporation"), hereby certifies that, in accordance with Section 180.1003 of
the Wisconsin Statutes, the following Amendment was duly adopted by the Board of
Directors of the Corporation on May 3, 2002 and subsequently approved by the
shareholders of the class designated as the Strong Advisor Focus Fund at a
meeting held on September 13, 2002 in order to terminate the outstanding shares
designated as the Strong Advisor Focus Fund in connection with a reorganization
effected pursuant to the Agreement and Plan of Reorganization between the
Corporation and Strong Opportunity Fund, Inc. attached hereto as Exhibit A
("Agreement").
1. Paragraph A of Article IV is hereby amended by deleting Paragraph A
thereof and inserting the following as a new paragraph:
"A. The Corporation shall have the authority to issue an indefinite
number of shares of Common Stock with a par value of $.001 per share.
Subject to the following paragraph, the authorized shares are classified as
follows:
Class Series Authorized Number of Shares
----- ------ ---------------------------
Strong Advisor Common Stock Fund Class A Indefinite
Class B Indefinite
Class C Indefinite
Class Z Indefinite
Strong Advisor Endeavor Large Cap Fund Class A Indefinite
Class B Indefinite
Class C Indefinite
Strong Advisor Technology Fund Class A Indefinite
Class B Indefinite
Class C Indefinite"
2. Article IV is hereby amended by adding a new paragraph, labeled
Paragraph J., and inserting the following language:
"J. At the Effective Time (as defined in the Agreement), each
outstanding share of Common Stock of the Selling Fund (as defined in the
Agreement) shall be exchanged for Acquiring Fund Shares (as defined in the
Agreement) in accordance with the terms of the Agreement. Certificates
representing shares of the Selling Fund shall be surrendered at the time
and in the manner set forth in the Agreement. Any such certificates that
remain outstanding after the Effective Time shall be deemed to be
automatically canceled and shares represented by such certificates shall be
restored to the status of authorized but unissued shares and shall be
automatically exchanged as noted above."
Executed in duplicate this 14th day of October, 2002.
STRONG COMMON STOCK FUND, INC.
By: __________________________________
Xxxxx X. Xxxxxxxxx
Vice President and Assistant Secretary
This instrument was drafted by:
Xxxxxxx X. Xxxxxxx
Strong Capital Management, Inc.
000 Xxxxxxxx Xxxxxxx
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