EXHIBIT h (89)
INVESCO VARIABLE INVESTMENT FUNDS, INC.
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement"), dated as of
December 10, 2003, by and between INVESCO Variable Investment Funds, Inc., a
Maryland corporation (the "Company"), acting on its own behalf and on behalf of
each of its series portfolios, all of which are identified on Schedule A to this
Agreement, and AIM Variable Insurance Funds, a Delaware statutory trust (the
"Trust"), acting on its own behalf and on behalf of each of its series
portfolios, all of which are identified on Schedule A.
BACKGROUND
The Company is organized as a series management investment company and
is registered with the Securities and Exchange Commission under the Investment
Company Act of 1940, as amended. The Company currently publicly offers shares of
common stock representing interests in one or more separate series portfolios.
Each of these series portfolios is listed on Schedule A and is referred to in
this Agreement as a "Current Fund."
The Board of Directors of the Company has designated two classes of
common stock that represent interests in each Current Fund. These classes are
listed on Schedule B to this Agreement and each such class is referred to in
this Agreement as a "Current Fund Class."
The Company desires to change its form and place of organization by
reorganizing as the Trust. In anticipation of such reorganization, the Board of
Trustees of the Trust has established a series portfolio corresponding to each
of the Current Funds (each a "New Fund"), and has designated one or more classes
of shares of beneficial interest in each New Fund corresponding to the Current
Fund Classes (each a "New Fund Class"). Schedule A lists the New Funds and
Schedule B lists the New Fund Classes.
Each Current Fund desires to provide for its Reorganization (each, a
"Reorganization" and collectively, the "Reorganizations") through the transfer
of all of its assets to the corresponding New Fund in exchange for the
assumption by such New Fund of the liabilities of the corresponding Current Fund
and the issuance by the Trust to such Current Fund of shares of beneficial
interest in the New Fund ("New Fund Shares"). New Fund Shares received by a
Current Fund will have an aggregate net asset value equal to the aggregate net
asset value of the shares of the Current Fund immediately prior to the
Reorganization (the "Current Fund Shares"). Each Current Fund will then
distribute the New Fund Shares it has received to its shareholders.
Each Reorganization of each Current Fund is dependent upon the
consummation of the Reorganization of all of the other Current Funds, so that
the Reorganizations of all of the Current Funds must be consummated if any of
them are to be consummated. For convenience, the balance of this Agreement
refers only to a single Reorganization, but the terms and conditions hereof
shall apply separately to each Reorganization and to the Current Fund and the
corresponding New Fund participating therein, as applicable.
The Reorganization is subject to, and shall be effected in accordance
with, the terms of this Agreement. This Agreement is intended to be and is
adopted by the Company, on its own
behalf and on behalf of the Current Funds, and by the Trust, on its own behalf
and on behalf of the New Funds, as a Plan of Reorganization within the meaning
of the regulations under Section 368(a) of the Internal Revenue Code of 1986, as
amended.
NOW THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. DEFINITIONS
Any capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the preamble or background to this Agreement. In addition,
the following terms shall have the following meanings:
1.1 "Assets" shall mean all assets including, without limitation, all
cash, cash equivalents, securities, receivables (including interest and
dividends receivable), claims and rights of action, rights to register shares
under applicable securities laws, books and records, deferred and prepaid
expenses shown as assets on a Current Fund's books, and other property owned by
a Current Fund at the Effective Time.
1.2 "Closing" shall mean the consummation of the transfer of Assets,
assumption of Liabilities and issuance of shares described in Sections 2.1 and
2.2 of this Agreement, together with the related acts necessary to consummate
the Reorganization, to occur on the date set forth in Section 3.1.
1.3 "Code" shall mean the Internal Revenue Code of 1986, as amended.
1.4 "Current Fund" shall mean each of the series portfolios of the
Company as shown on Schedule A.
1.5 "Current Fund Class" shall mean each class of common stock of the
Company representing an interest in a Current Fund as shown on Schedule B.
1.6 "Current Fund Shares" shall mean the shares of a Current Fund
outstanding immediately prior to the Reorganization.
1.7 "Effective Time" shall have the meaning set forth in Section 3.1.
1.8 "Liabilities" shall mean all liabilities of a Current Fund
including, without limitation, all debts, obligations, and duties of whatever
kind or nature, whether absolute, accrued, contingent, or otherwise, whether or
not determinable at the Effective Time, and whether or not specifically referred
to herein.
1.9 "New Fund" shall mean each of the series portfolios of the Trust,
one of which shall correspond to one of the Current Funds as shown on Schedule
A.
1.10 "New Fund Class" shall mean each class of shares of beneficial
interest in a New Fund, one of which shall correspond to one of the Current Fund
Classes as shown on Schedule B.
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1.11 "New Fund Shares" shall mean those shares of beneficial interest
in a New Fund issued to a Current Fund hereunder.
1.12 "Registration Statement" shall have the meaning set forth in
Section 5.4.
1.13 "RIC" shall mean a "regulated investment company" (as defined
under Subchapter M of the Code).
1.14 "SEC" shall mean the Securities and Exchange Commission.
1.15 "Shareholder(s)" shall mean a Current Fund's shareholder(s) of
record, determined as of the Effective Time.
1.16 "Shareholders Meeting" shall have the meaning set forth in Section
5.1.
1.17 "Transfer Agent" shall have the meaning set forth in Section 2.2.
1.18 "1940 Act" shall mean the Investment Company Act of 1940, as
amended.
2. PLAN OF REORGANIZATION
2.1 The Company agrees, on behalf of each Current Fund, to assign,
sell, convey, transfer and deliver all of the Assets of each Current Fund to its
corresponding New Fund. The Trust, on behalf of each New Fund, agrees in
exchange therefor:
(a) to issue and deliver to the corresponding Current Fund the
number of full and fractional (rounded to the third decimal place) New
Fund Shares of each New Fund Class designated on Schedule B equal to
the number of full and fractional Current Fund Shares of each
corresponding Current Fund Class designated on Schedule B; and
(b) to assume all of the Current Fund's Liabilities.
Such transactions shall take place at the Closing.
2.2 At the Effective Time (or as soon thereafter as is reasonably
practicable), (a) the New Fund Shares issued pursuant to Section 5.2 shall be
redeemed by each New Fund for $10.00 and (b) each Current Fund shall distribute
the New Fund Shares received by it pursuant to Section 2.1 to the Current Fund's
Shareholders in exchange for such Shareholders' Current Fund Shares. Such
distribution shall be accomplished through opening accounts, by the transfer
agent for the Trust (the "Transfer Agent"), on each New Fund's share transfer
books in the Shareholders' names and transferring New Fund Shares to such
accounts. Each Shareholder's account shall be credited with the respective pro
rata number of full and fractional (rounded to the third decimal place) New Fund
Shares of each New Fund Class due that Shareholder. All outstanding Current Fund
Shares, including those represented by certificates, shall simultaneously be
canceled on each Current Fund's share transfer books. The Trust shall not issue
certificates representing the New Fund Shares in connection with the
Reorganization. However, certificates representing Current Fund Shares shall
represent New Fund Shares after the Reorganization.
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2.3 Following receipt of the required shareholder vote and as soon as
reasonably practicable after the Closing, the status of each Current Fund as a
designated series of the Company shall be terminated; provided, however, that
the termination of each Current Fund as a designated series of the Company shall
not be required if the Reorganization shall not have been consummated.
2.4 Following receipt of the required shareholder vote and as soon as
reasonably practicable after distribution of the New Fund Shares pursuant to
Section 2.2, the Company and the Trust shall cause Articles of Transfer to be
filed with the State Department of Assessments and Taxation of Maryland and,
following the filing of Articles of Transfer, the Company shall file a Form N-8F
with the Securities and Exchange Commission to deregister as an investment
company. Following such deregistration, the Company shall file Articles of
Dissolution with the State Department of Assessments and Taxation of Maryland to
dissolve the Company as a Maryland corporation; provided, however, that the
filing of Articles of Transfer, a Form N-8F and Articles of Dissolution as
aforesaid shall not be required if the Reorganization shall not have been
consummated.
2.5 Any transfer taxes payable on issuance of New Fund Shares in a name
other than that of the registered holder of the Current Fund Shares exchanged
therefor shall be paid by the person to whom such New Fund Shares are to be
issued, as a condition of such transfer.
2.6 Any reporting responsibility of the Company or each Current Fund to
a public authority is and shall remain its responsibility up to and including
the date on which it is terminated.
3. CLOSING
3.1 The Closing shall occur at the principal office of the Company on
April 30, 2004, or on such other date and at such other place upon which the
parties may agree. All acts taking place at the Closing shall be deemed to take
place simultaneously as of the Company's and the Trust's close of business on
the date of the Closing or at such other time as the parties may agree (the
"Effective Time").
3.2 The Company or its fund accounting agent shall deliver to the Trust
at the Closing, a certificate of an authorized officer verifying that the
information (including adjusted basis and holding period, by lot) concerning the
Assets, including all portfolio securities, transferred by the Current Funds to
the New Funds, as reflected on the New Funds' books immediately following the
Closing, does or will conform to such information on the Current Funds' books
immediately before the Closing. The Company shall cause the custodian for each
Current Fund to deliver at the Closing a certificate of an authorized officer of
the custodian stating that (a) the Assets held by the custodian will be
transferred to each corresponding New Fund at the Effective Time and (b) all
necessary taxes in conjunction 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.
3.3 The Company shall deliver to the Trust at the Closing a list of the
names and addresses of each Shareholder of each Current Fund and the number of
outstanding Current Fund
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Shares of the Current Fund Class owned by each Shareholder, all as of the
Effective Time, certified by the Company's Secretary or Assistant Secretary. The
Trust shall cause the Transfer Agent to deliver at the Closing a certificate as
to the opening on each New Fund's share transfer books of accounts in the
Shareholders' names. The Trust shall issue and deliver a confirmation to the
Company evidencing the New Fund Shares to be credited to each corresponding
Current Fund at the Effective Time or provide evidence satisfactory to the
Company that such shares have been credited to each Current Fund's account on
such books. At the Closing, each party shall deliver to the other such bills of
sale, checks, assignments, stock certificates, receipts, or other documents as
the other party or its counsel may reasonably request.
3.4 The Company and the Trust shall deliver to the other at the Closing
a certificate executed in its name by its President or a Vice President in form
and substance satisfactory to the recipient and dated the Effective Time, to the
effect that the representations and warranties it made in this Agreement are
true and correct at the Effective Time except as they may be affected by the
transactions contemplated by this Agreement.
4. REPRESENTATIONS AND WARRANTIES
4.1 The Company represents and warrants on its own behalf and on behalf
of each Current Fund as follows:
(a) The Company is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Maryland,
and its Charter is on file with the Maryland Department of Assessments
and Taxation;
(b) The Company is duly registered as an open-end series
management investment company under the 1940 Act, and such registration
is in full force and effect;
(c) Each Current Fund is a duly established and designated
series of the Company;
(d) At the Closing, each Current Fund will have good and
marketable title to its Assets and full right, power, and authority to
sell, assign, transfer, and deliver its Assets free of any liens or
other encumbrances; and upon delivery and payment for the Assets, the
corresponding New Fund will acquire good and marketable title to the
Assets;
(e) The New Fund Shares are not being acquired for the purpose
of making any distribution thereof, other than in accordance with the
terms hereof;
(f) Each Current Fund is a "fund" as defined in Section
851(g)(2) of the Code; each Current Fund qualified for treatment as a
RIC for each taxable year since it commenced operations that has ended
(or will end) before the Closing and will continue to meet all the
requirements for such qualification for its current taxable year (and
the Assets will be invested at all times through the Effective Time in
a manner that ensures compliance with the foregoing); each Current Fund
has no earnings and profits accumulated in any taxable year in which
the provisions of Subchapter M did not apply to it; and each Current
Fund has made all distributions for each calendar year that has ended
(or will end) before the Closing that are necessary to avoid the
imposition of
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federal excise tax or has paid or provided for the payment of any
excise tax imposed for any such calendar year;
(g) During the five-year period ending on the date of the
Reorganization, neither Company nor any person related to Company (as
defined in Section 1.368-1(e)(3) of the Federal income tax regulations
adopted pursuant to the Code without regard to Section
1.368-1(e)(3)(i)(A)) will have directly or through any transaction,
agreement, or arrangement with any other person, (i) acquired shares of
a Current Fund for consideration other than shares of such Current
Fund, except for shares redeemed in the ordinary course of such Current
Fund's business as an open-end investment company as required by the
1940 Act, or (ii) made distributions with respect to a Current Fund's
shares, except for (a) distributions necessary to satisfy the
requirements of Sections 852 and 4982 of the Code for qualification as
a regulated investment company and avoidance of excise tax liability
and (b) additional distributions, to the extent such additional
distributions do not exceed 50 percent of the value (without giving
effect to such distributions) of the proprietary interest in such
Current Fund at the Effective Time. There is no plan or intention of
the Shareholders who individually own 5% or more of any Current Fund
Shares and, to the best of the Company's knowledge, there is no plan or
intention of the remaining Shareholders to redeem or otherwise dispose
of any New Fund Shares to be received by them in the Reorganization.
The Company does not anticipate dispositions of those shares at the
time of or soon after the Reorganization to exceed the usual rate and
frequency of redemptions of shares of the Current Fund as a series of
an open-end investment company. Consequently, the Company is not aware
of any plan that would cause the percentage of Shareholder interests,
if any, that will be disposed of as a result of or at the time of the
Reorganization to be one percent (1%) or more of the shares of the
Current Fund outstanding as of the Effective Time;
(h) The Liabilities were incurred by the Current Funds in the
ordinary course of their business and are associated with the Assets;
(i) The Company is not under the jurisdiction of a court in a
proceeding under Title 11 of the United States Code or similar case
within the meaning of Section 368(a)(3)(A) of the Code;
(j) As of the Effective Time, no Current Fund will have
outstanding any warrants, options, convertible securities, or any other
type of rights pursuant to which any person could acquire Current Fund
Shares except for the right of investors to acquire its shares at net
asset value in the normal course of its business as a series of an
open-end diversified management investment company operating under the
1940 Act;
(k) At the Effective Time, the performance of this Agreement
shall have been duly authorized by all necessary action by the
Company's shareholders;
(l) Throughout the five-year period ending on the date of the
Closing, each Current Fund will have conducted its historic business
within the meaning of Section 1.368-1(d) of the Income Tax Regulations
under the Code in a substantially unchanged manner;
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(m) The fair market value of the Assets of each Current Fund
transferred to the corresponding New Fund will equal or exceed the sum
of the Liabilities assumed by the New Fund plus the amount of
Liabilities, if any, to which the transferred Assets are subject; and
(n) The total adjusted basis of the Assets of each Current
Fund transferred to the corresponding New Fund will equal or exceed the
sum of the Liabilities assumed by the New Fund plus the amount of
Liabilities, if any, to which the transferred assets are subject.
4.2 The Trust represents and warrants on its own behalf and on behalf
of each New Fund as follows:
(a) The Trust is a statutory trust duly organized, validly
existing, and in good standing under the laws of the State of Delaware,
and its Certificate of Trust has been duly filed in the office of the
Secretary of State of Delaware;
(b) The Trust is duly registered as an open-end management
investment company under the 1940 Act. At the Effective Time, the New
Fund Shares to be issued pursuant to Section 2.1 of this Agreement
shall be duly registered under the Securities Act of 1933 by a
Registration Statement filed with the SEC;
(c) At the Effective Time, each New Fund will be a duly
established and designated series of the Trust;
(d) No New Fund has commenced operations nor will it commence
operations until after the Closing;
(e) Prior to the Effective Time, there will be no issued and
outstanding shares in any New Fund or any other securities issued by
the Trust on behalf of any New Fund, except as provided in Section 5.2;
(f) No consideration other than New Fund Shares (and each New
Fund's assumption of the Liabilities) will be issued in exchange for
the Assets in the Reorganization;
(g) The New Fund Shares to be issued and delivered to each
corresponding Current Fund hereunder will, at the Effective Time, have
been duly authorized and, when issued and delivered as provided herein,
will be duly and validly issued and outstanding shares of the New Fund,
fully paid and nonassessable;
(h) Each New Fund will be a "fund" as defined in Section
851(g)(2) of the Code and will meet all the requirements to qualify for
treatment as a RIC for its taxable year in which the Reorganization
occurs;
(i) The Trust, on behalf of the New Funds, has no plan or
intention to issue additional New Fund Shares following the
Reorganization except for shares issued in the ordinary course of its
business as an open-end investment company; nor does the Trust,
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on behalf of the New Funds, have any plan or intention to redeem or
otherwise reacquire any New Fund Shares issued pursuant to the
Reorganization, other than in the ordinary course of such business or
to the extent necessary to comply with its legal obligation under
Section 22(e) of the 1940 Act;
(j) Each New Fund will actively continue the corresponding
Current Fund's business in substantially the same manner that the
Current Fund conducted that business immediately before the
Reorganization; and no New Fund has any plan or intention to sell or
otherwise dispose of any of the Assets, except for dispositions made in
the ordinary course of its business or dispositions necessary to
maintain its qualification as a RIC, although in the ordinary course of
its business the New Fund will continuously review its investment
portfolio (as each Current Fund did before the Reorganization) to
determine whether to retain or dispose of particular stocks or
securities, including those included in the Assets, provided, however
that this Section 4.2(j) shall not preclude any of the combinations of
funds set forth on Schedule C to this Agreement; and
(k) There is no plan or intention for any of the New Funds to
be dissolved or merged into another corporation or statutory trust or
"fund" thereof (within the meaning of Section 851(g)(2) of the Code)
following the Reorganization, provided, however that this Section
4.2(k) shall not preclude any of the combinations of Funds set forth on
Schedule C.
4.3 Each of the Company and the Trust, on its own behalf and on behalf
of each Current Fund or each New Fund, as appropriate, represents and warrants
as follows:
(a) The fair market value of the New Fund Shares of each New
Fund received by each Shareholder will be equal to the fair market
value of the Current Fund Shares of the corresponding Current Fund
surrendered in exchange therefor;
(b) Immediately following consummation of the Reorganization,
the Shareholders will own all the New Fund Shares of each New Fund and
will own such shares solely by reason of their ownership of the Current
Fund Shares of the corresponding Current Fund immediately before the
Reorganization;
(c) The Shareholders will pay their own expenses, if any,
incurred in connection with the Reorganization;
(d) There is no intercompany indebtedness between a Current
Fund and a New Fund that was issued or acquired, or will be settled, at
a discount; and
(e) Immediately following consummation of the Reorganization,
each New Fund will hold the same assets, except for assets distributed
to shareholders in the course of its business as a RIC and assets used
to pay expenses incurred in connection with the Reorganization, and be
subject to the same liabilities that the corresponding Current Fund
held or was subject to immediately prior to the Reorganization. Assets
used to pay (i) expenses, (ii) all redemptions (other than redemptions
at the usual rate and frequency of the Current Fund as a series of an
open-end investment company), and (iii) distributions (other than
regular, normal distributions), made by a Current Fund after
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the date of this Agreement will, in the aggregate, constitute less than
one percent (1%) of its net assets.
5. COVENANTS
5.1 As soon as practicable after the date of this Agreement, the
Company shall call a meeting of its shareholders (the "Shareholders Meeting") to
consider and act on this Agreement and, in connection therewith, the sale of all
of the Company's assets and the dissolution of the Company as a Maryland
corporation. The Board of Directors of the Company shall recommend that
shareholders approve this Agreement and, in connection therewith, sale of all of
the Company's assets and the dissolution of the Company as a Maryland
corporation. Approval by shareholders of this Agreement will authorize the
Company, and the Company hereby agrees, to vote on the matters referred to in
Sections 5.2 and 5.3.
5.2 Prior to the Closing, the Company shall acquire one New Fund Share
in each New Fund Class of each New Fund for the purpose of enabling the Company
to elect the Company's directors as the Trust's trustees (to serve without limit
in time, except as they may resign or be removed by action of the Trust's
trustees or shareholders), to ratify the selection of each New Fund's
independent accountants, and to vote on the matters referred to in Section 5.3.
5.3 Immediately prior to the Closing, the Trust (on its own behalf and
with respect to each New Fund or each New Fund Class, as appropriate) shall
enter into a Master Investment Advisory Agreement, a Master Sub-Advisory
Agreement, a Master Administrative Services Agreement, Master Distribution
Agreements, a Custodian Agreement, and a Transfer Agency and Servicing
Agreement; shall adopt a plan of distribution pursuant to Rule 12b-l of the 1940
Act for the Series II Shares of each New Fund, a multiple class plan pursuant to
Rule 18f-3 of the 1940 Act; and shall enter into or adopt, as appropriate, such
other agreements and plans as are necessary for each New Fund's operation as a
series of an open-end investment company. Each such agreement and plan shall
have been approved by the Trust's trustees and, to the extent required by law,
by such of those trustees who are not "interested persons" of the Trust (as
defined in the 0000 Xxx) and by the Company as the sole shareholder of each New
Fund.
5.4 The Company or the Trust, as appropriate, shall file with the SEC
one or more post-effective amendments to the Company's Registration Statement on
Form N-lA under the Securities Act of 1933, as amended, and the 1940 Act, as
amended (the "Registration Statement"), (i) which will contain such amendments
to such Registration Statement as are determined by the Company to be necessary
and appropriate to effect the Reorganization and (ii) which will register the
New Fund Shares to be issued pursuant to Section 2.1 of this Agreement, and
shall use its best efforts to have such post-effective amendment or amendments
to the Registration Statement become effective as of the Closing.
6. CONDITIONS PRECEDENT
The obligations of the Company, on its own behalf and on behalf of each
Current Fund, and the Trust, on its own behalf and on behalf of each New Fund,
will be subject to (a) performance by the other party of all its obligations to
be performed hereunder at or before the Effective Time, (b) all representations
and warranties of the other party contained herein
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being true and correct in all material respects as of the date hereof and,
except as they may be affected by the transactions contemplated hereby, as of
the Effective Time, with the same force and effect as if made on and as of the
Effective Time, and (c) the further conditions that, at or before the Effective
Time:
6.1 The shareholders of the Company shall have approved this Agreement
and the transactions contemplated by this Agreement in accordance with
applicable law.
6.2 All necessary filings shall have been made with the SEC and state
securities authorities, and no order or directive shall have been received that
any other or further action is required to permit the parties to carry out the
transactions contemplated hereby. All consents, orders, and permits of federal,
state, and local regulatory authorities (including the SEC and state securities
authorities) deemed necessary by either the Company or the Trust to permit
consummation, in all material respects, of the transactions contemplated hereby
shall have been obtained, except where failure to obtain such consults, orders,
and permits would not involve a risk of a material adverse effect on the assets
or properties of either a Current Fund or a New Fund, provided that either the
Company or the Trust may for itself waive any of such conditions.
6.3 Each of the Company and the Trust shall have received an opinion
from Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP as to the federal income tax
consequences mentioned below. In rendering such opinion, such counsel may rely
as to factual matters, exclusively and without independent verification, on the
representations made in this Agreement (or in separate letters of representation
that the Company and the Trust shall use their best efforts to deliver to such
counsel) and the certificates delivered pursuant to Section 3.4. Such opinion
shall be substantially to the effect that, based on the facts and assumptions
stated therein and conditioned on consummation of the Reorganization in
accordance with this Agreement, for federal income tax purposes:
(a) The Reorganization will constitute a reorganization within
the meaning of section 368(a) of the Code, and each Current Fund and
each New Fund will be "a party to a reorganization" within the meaning
of section 368(b) of the Code;
(b) No gain or loss will be recognized to a Current Fund on
the transfer of its Assets to the corresponding New Fund in exchange
solely for the New Fund's New Fund Shares and the New Fund's assumption
of the Current Fund's Liabilities or on the subsequent distribution of
those New Fund Shares to its Shareholders, in constructive exchange for
their Current Fund Shares, in liquidation of the Current Fund;
(c) No gain or loss will be recognized to a New Fund on its
receipt of the corresponding Current Fund's Assets in exchange for New
Fund Shares and its assumption of the Current Fund's Liabilities;
(d) Each New Fund's basis for the corresponding Current Fund's
Assets will be the same as the basis thereof in the Current Fund's
hands immediately before the Reorganization, and the New Fund's holding
period for those Assets will include the Current Fund's holding period
therefor;
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(e) A Shareholder will recognize no gain or loss on the
constructive exchange of Current Fund Shares solely for New Fund Shares
pursuant to the Reorganization; and
(f) A Shareholder's basis for the New Fund Shares of each New
Fund to be received in the Reorganization will be the same as the basis
for the Current Fund Shares of the corresponding Current Fund to be
constructively surrendered in exchange for such New Fund Shares, and a
Shareholder's holding period for such New Fund Shares will include its
holding period for such Current Fund Shares, provided that such Current
Fund Shares are held as capital assets by the Shareholder at the
Effective Time.
6.4 No stop-order suspending the effectiveness of the Registration
Statement shall have been issued, and no proceeding for that purpose shall have
been initiated or threatened by the SEC (and not withdrawn or terminated).
At any time prior to the Closing, any of the foregoing conditions
(except those set forth in Sections 6.1 and 6.3) may be waived by the
directors/trustees of either the Company or the Trust if, in their judgment,
such waiver will not have a material adverse effect on the interests of the
Current Fund's Shareholders.
7. EXPENSES
Except as otherwise provided in Section 4.3(c), all expenses incurred
in connection with the transactions contemplated by this Agreement (regardless
of whether they are consummated) will be borne by the parties as they mutually
agree.
8. ENTIRE AGREEMENT
Neither party has made any representation, warranty, or covenant not
set forth herein, and this Agreement constitutes the entire agreement between
the parties.
9. AMENDMENT
This Agreement may be amended, modified, or supplemented at any time,
notwithstanding its approval by the Company's shareholders, in such manner as
may be mutually agreed upon in writing by the parties; provided that following
such approval no such amendment shall have a material adverse effect on the
shareholders' interests.
10. TERMINATION
This Agreement may be terminated at any time at or prior to the
Effective Time, whether before or after approval by the Company's shareholders:
10.1 By either the Company or the Trust (a) in the event of the other
party's material breach of any representation, warranty, or covenant contained
herein to be performed at or prior to the Effective Time, (b) if a condition to
its obligations has not been met and it reasonably appears that such condition
will not or cannot be met, or (c) if the Closing has not occurred on or before
June 30, 2004; or
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10.2 By the parties' mutual agreement.
Except as otherwise provided in Section 7, in the event of termination
under Sections 10.1(c) or 10.2, there shall be no liability for damages on the
part of either the Company or the Trust or any Current Fund or corresponding New
Fund, to the other.
11. MISCELLANEOUS
11.1 This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Delaware; provided that, in the case of
any conflict between such laws and the federal securities laws, the latter shall
govern.
11.2 Nothing expressed or implied herein is intended or shall be
construed to confer upon or give any person, firm, trust, or corporation other
than the parties and their respective successors and assigns any rights or
remedies under or by reason of this Agreement.
11.3 The execution and delivery of this Agreement have been authorized
by the Trust's trustees, and this Agreement has been executed and delivered by a
duly authorized officer of the Trust in his or her capacity as an officer of the
Trust intending to bind the Trust as provided herein, and no officer, trustee or
shareholder of the Trust shall be personally liable for the liabilities or
obligations of the Trust incurred hereunder. The liabilities and obligations of
the Trust pursuant to this Agreement shall be enforceable against the assets of
the New Funds only and not against the assets of the Trust generally.
12
IN WITNESS WHEREOF, each party has caused this Agreement to be executed
and delivered by its duly authorized officers as of the day and year first
written above.
Attest: INVESCO VARIABLE INVESTMENT FUNDS,
INC., on behalf of each of its series
listed in Schedule A
/s/ XXX XXXXXXXX By: /s/ XXXXXX X. XXXXXX
-------------------------- ----------------------------------
Title: President
-------------------------------
Attest: AIM VARIABLE INSURANCE FUNDS,
on behalf of each of its series
listed in Schedule A
/s/ XXX XXXXXXXX By: /s/ XXXXXX X. XXXXXX
-------------------------- ----------------------------------
Title: President
-------------------------------
13
SCHEDULE A
SERIES OF
INVESCO VARIABLE INVESTMENT FUNDS, INC. CORRESPONDING SERIES OF AIM VARIABLE
(EACH A "CURRENT FUND") INSURANCE FUNDS (EACH A "NEW FUND")
------------------------------------------- -------------------------------------------
INVESCO VIF - Core Equity Fund INVESCO VIF - Core Equity Fund
INVESCO VIF - Dynamics Fund INVESCO VIF - Dynamics Fund
INVESCO VIF - Financial Services Fund INVESCO VIF - Financial Services Fund
INVESCO VIF - Growth Fund INVESCO VIF - Growth Fund
INVESCO VIF - Health Sciences Fund INVESCO VIF - Health Sciences Fund
INVESCO VIF - High Yield Fund INVESCO VIF - High Yield Fund
INVESCO VIF - Leisure Fund INVESCO VIF - Leisure Fund
INVESCO VIF - Real Estate Opportunity Fund INVESCO VIF - Real Estate Opportunity Fund
INVESCO VIF - Small Company Growth Fund INVESCO VIF - Small Company Growth Fund
INVESCO VIF - Technology Fund INVESCO VIF - Technology Fund
INVESCO VIF - Telecommunications Fund INVESCO VIF - Telecommunications Fund
INVESCO VIF - Total Return Fund INVESCO VIF - Total Return Fund
INVESCO VIF - Utilities Fund INVESCO VIF - Utilities Fund
A-1
SCHEDULE B
SHARES OF COMMON STOCK OF CORRESPONDING SHARES OF COMMON STOCK OF
EACH CURRENT FUND EACH NEW FUND
---------------------------------------- ----------------------------------------
INVESCO VIF - Core Equity Fund INVESCO VIF - Core Equity Fund
Series I Shares Series I Shares
Series II Shares Series II Shares
INVESCO VIF - Dynamics Fund INVESCO VIF - Dynamics Fund
Series I Shares Series I Shares
Series II Shares Series II Shares
INVESCO VIF - Financial Services Fund INVESCO VIF - Financial Services Fund
Series I Shares Series I Shares
Series II Shares Series II Shares
INVESCO VIF - Growth Fund INVESCO VIF - Growth Fund
Series I Shares Series I Shares
Series II Shares Series II Shares
INVESCO VIF - Health Sciences Fund INVESCO VIF - Health Sciences Fund
Series I Shares Series I Shares
Series II Shares Series II Shares
INVESCO VIF - High Yield Fund INVESCO VIF - High Yield Fund
Series I Shares Series I Shares
Series II Shares Series II Shares
INVESCO VIF - Leisure Fund INVESCO VIF - Leisure Fund
Series I Shares Series I Shares
Series II Shares Series II Shares
INVESCO VIF - Real Estate Opportunity Fund INVESCO VIF - Real Estate Opportunity Fund
Series I Shares Series I Shares
Series II Shares Series II Shares
INVESCO VIF - Small Company Growth Fund INVESCO VIF - Small Company Growth Fund
Series I Shares Series I Shares
Series II Shares Series II Shares
INVESCO VIF - Technology Fund INVESCO VIF - Technology Fund
Series I Shares Series I Shares
Series II Shares Series II Shares
INVESCO VIF - Telecommunications Fund INVESCO VIF - Telecommunications Fund
Series I Shares Series I Shares
Series II Shares Series II Shares
INVESCO VIF - Total Return Fund INVESCO VIF - Total Return Fund
Series I Shares Series I Shares
Series II Shares Series II Shares
INVESCO VIF - Utilities Fund INVESCO VIF - Utilities Fund
Series I Shares Series I Shares
Series II Shares Series II Shares
B-1
SCHEDULE C
PERMITTED COMBINATIONS OF FUNDS
AIM V.I. Global Utilities Fund into INVESCO VIF - Utilities Fund
AIM V.I. New Technology Fund into INVESCO VIF - Technology Fund
INVESCO VIF - Telecommunications Fund into INVESCO VIF - Technology Fund
INVESCO VIF - Growth Fund into AIM V.I. Growth Fund
INVESCO VIF - High Yield Fund into AIM V.I. High Yield Fund
LSA Basic Value Fund into AIM V.I. Basic Value Fund
C-1
