AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger, dated as of October 16, 1989
("Agreement"), is between Xxxxx Series Fund, Inc. ("Series Fund"), a Minnesota
corporation, and Xxxxx Value Fund, Inc.
("Value Fund"), a Nebraska corporation.
WHEREAS, on October 16, 1989, the Board of Directors of Value Fund
approved this Agreement providing for the merger of Value Fund, with and into
Series Fund, and found that such transaction was in the best interests of its
shareholders; and
WHEREAS, on October 16, 1989 the Board of Directors of Series Fund
approved and adopted this Agreement and the transactions contemplated herein;
NOW, THEREFORE, in consideration of the mutual agreements set forth
below, the parties hereto agree as follows:
ARTICLE I
THE MERGER
SECTION 1.01 The Merger. Upon the terms and subject to the conditions
hereof, and in accordance with the Nebraska Business Corporation Act ("NBCA")
and the Business Corporations Law of the State of Minnesota (the "MBCL"), Value
Fund shall be merged with and into Series Fund (the "Merger") following the
satisfaction or waiver of the conditions set forth in Article V hereof.
Following the Merger, Series Fund shall continue as the successor corporation
(the "Surviving Corporation"), under the laws of the State of Minnesota and
shall be named "Xxxxx Series Fund, Inc." and the separate corporate existence of
Value Fund shall cease.
SECTION 1.02 Effective Time. The Merger shall be consummated by
(i) filing with the Secretary of State of the State of Nebraska Articles of
Merger and (ii) filing with the Secretary of State of the State of Minnesota
Articles of Merger, in each case in such form as required by, and executed in
accordance with, the relevant provisions of the NBCA and MBCL, respectively. The
Articles of Merger will be filed in Minnesota prior to, or concurrently with,
the filing of the Articles of Merger in Nebraska. The time of filing of the
Articles of Merger with the Secretary of State of Nebraska shall be the
"Effective Time" but for accounting purposes the Merger shall occur at the later
of 12:01 a.m. on April 1, 1990 or the Effective Time.
SECTION 1.03 Effects of the Merger. The Merger shall have the effects
set forth in the NBCA and the MBCL, except that Series Fund agrees that any
liability, obligation or penalty assumed by it relating to or arising from Value
Fund shall be satisfied first out of assets allocated to the Value Portfolio of
the Fund before recourse to any other assets of the Fund.
SECTION 1.04 Articles of Incorporation and By-Laws. (a) The Articles of
Incorporation of Series Fund in effect at the Effective Time shall be the
Articles of Incorporation of the Surviving Corporation.
(b) The By-Laws of Series Fund as in effect at the Effective Time shall
be the By-Laws of the Surviving Corporation.
SECTION 1.05 Directors and Officers. The directors and officers of
Series Fund at the Effective Time shall be the directors and officers of the
Surviving Corporation and will hold offices from the Effective Time until their
respective successors are duly elected or appointed and qualify in the
manner provided in the Articles of Incorporation and By-Laws of the Surviving
Corporation, or as otherwise provided by law.
SECTION 1.06 Conversion of Shares. (a) Each share and each fractional
share of Value Fund Common Stock (the "Shares"), issued and outstanding
immediately prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of the holder thereof, be converted into one, or
an identical fraction of one fully paid and nonassessable Value Portfolio Share
of Series Fund, as described in Article 5 of the Articles of Incorporation of
Series Fund, as supplemented by a Resolution of the Board of Directors of Series
Fund dated October 16, 1989 establishing such Value Portfolio Shares, 10,000,000
of which are authorized and none of which will be outstanding prior to the
Effective Time.
ARTICLE II
TRANSFER OF SHARES
SECTION 2.01 Transfer of Shares. (a) Prior to the Effective Time,
Xxxxxxx X. Xxxxx & Company shall be designated to act as Transfer Agent for both
parties in connection with the Merger (the "Transfer Agent").
(b) At the Effective Time, ownership of the Shares by each registered
holder thereof, as evidenced by a book entry on the books of registry maintained
by the Transfer Agent, will become ownership of a like number of Value Portfolio
Shares, identically registered, without additional notice to such registered
holder.
(c) After the Effective Time there shall be no transfers on the stock
transfer books of Value Fund of the Shares. Any such purported transfer shall be
deemed a transfer of the Value Portfolio Shares into which such shares have been
converted.
ARTICLE III
REPRESENTATION AND WARRANTIES OF SERIES FUND
Series Fund hereby represents and warrants to Value Fund as follows:
SECTION 3.01 Organization and Qualification. Series Fund is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Minnesota and has the requisite corporate power to carry on its
business as it is now being conducted and is contemplated to be conducted.
Series Fund is duly qualified as a foreign corporation to do business, and is in
good standing, in each jurisdiction where the character of its properties or the
nature of its activities makes such qualifications necessary, except where the
failure to be so qualified will not have a material adverse effect on the
business, financial condition or operations of Series Fund taken as a whole.
SECTION 3.02 Capitalization. The authorized capital stock of Series
Fund consists of 100,000,000 shares, par value $.001 per share, of which
10,000,000 are classified as Fixed Income Portfolio Shares and 10,000,000 are
classified as Value Portfolio Shares. As of the date hereof 163,095.13 Fixed
Income Portfolio Shares were outstanding and no Value Portfolio Shares were
outstanding. The Value Portfolio Shares conform in all material respects to the
description thereof in Series Fund's registration statement on Form N-1A with
respect thereto (the "Registration Statement") filed with the Securities and
Exchange Commission (the "SEC").
SECTION 3.03 Authority Relative to This Agreement. Series Fund has the
requisite corporate power and authority to enter into this Agreement and to
carry out its obligations hereunder. Any corporate action on the part of Series
Fund necessary to authorize this Agreement and the transactions contemplated
hereby has been taken. This Agreement has been duly and validly executed and
delivered
by Series Fund and, upon approval by the shareholders of Series Fund as provided
for in Section 5.01(a) hereof, will constitute a valid and binding agreement of
Series Fund, enforceable against it in accordance with its terms.
SECTION 3.04 Absence of Breach; No Consents. The execution, delivery
and performance of this Agreement by Series Fund does not (i) conflict with or
result in a breach of any of the provisions of the articles of incorporation or
by-laws of Series Fund, (ii) contravene any law, rule or regulation of any state
or of the United States, or any order, writ, judgment, injunction, decree,
determination or award, or cause the suspension or revocation of any
authorization, consent, approval or license, presently in effect which affects
or binds Series Fund except where such contravention will not have a material
adverse effect on the business, financial condition or operations of Series
Fund, or (iii) require the authorization, consent, approval or license of any
third party or governmental entity.
SECTION 3.05 Full Disclosure. No representation or warranty made by or
on behalf of Series Fund to Value Fund pursuant to the provisions of this
Agreement contains or will contain as of the Effective Time any untrue statement
of a material fact or omits or will omit to state any material fact necessary to
make the statements herein, in light of the circumstances under which they were
made, not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF VALUE FUND
Value Fund represents and warrants to Series Fund as follows:
SECTION 4.01 Organization and Qualification. Value Fund is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nebraska and has the requisite corporate power to carry on its
business as it is now being conducted. Value Fund is duly qualified to do
business as a foreign corporation and is in good standing, in each jurisdiction
where the character of its properties or the nature of its activities makes such
qualifications necessary, except where the failure to be so qualified will not
have a material adverse effect on the business, financial condition or
operations of Value Fund as a whole.
SECTION 4.02 Capitalization. The authorized capital stock of Value Fund
consists of 200,000,000 shares of Common Stock, par value $.001 per share. As of
the date hereof, 1,862,823.259 shares of Common Stock were validly issued and
outstanding, fully paid and nonassessable.
SECTION 4.03 Authority Relative to This Agreement. Value Fund has the
requisite corporate power and authority to enter into this Agreement and to
carry out its obligations hereunder. Any corporate action on the part of Value
Fund necessary to authorize this Agreement and the transactions contemplated
hereby has been taken. This Agreement has been duly and validly executed and
delivered by Value Fund and, upon approval by the shareholders of Value Fund as
provided for in Section 5.01(a) hereof, will constitute a valid and binding
agreement of Value Fund, enforceable against it in accordance with its terms.
SECTION 4.04 Absence of Breach; No Consents. The execution, delivery
and performance of this Agreement by Value Fund does not (i) conflict with or
result in a breach of any of the provisions of its Articles of Incorporation or
By-Laws, (ii) contravene any law, rule or regulation of any state or of the
United States, or any order, writ, judgment, injunction, decree, determination
or award, or cause the suspension or revocation of any authorization, consent,
approval or license, presently in effect, which affects or binds Value Fund,
except where such contravention will not have a material adverse effect on the
business, financial condition or operations of Value Fund taken as a whole, or
(iii) require the authorization, consent, approval or license of any third party
or governmental entity.
SECTION 4.05 Financial Statements; Public Reports. Value Fund has
previously furnished Series Fund true and complete copies of each registration
statement and proxy statement filed by Value Fund with the SEC. The consolidated
financial statements and schedules of Value Fund contained therein (or
incorporated therein by reference) were prepared in accordance with generally
accepted accounting principles applied on a consistent basis except as noted
therein, and present fairly the information purported to be shown therein
subject (in the case of interim unaudited financial statements) to normal
year-end audit adjustments. No such registration statement, proxy statement or
report, on the date of effectiveness in the case of such registration
statements, on the date of mailing in the case of such proxy statements and on
the date of filing in the case of such reports, 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, in light of the
circumstances under which they were made, not misleading.
SECTION 4.06 Full Disclosure. No representation or warranty made by or
on behalf of Value Fund to Series Fund pursuant to the provisions of this
Agreement contains or will contain as of the Effective Time any untrue statement
of a material fact or omits to state any material fact necessary to make the
statements herein, in light of the circumstances under which they were made, not
misleading.
ARTICLE V
CONDITIONS TO CONSUMMATION OF THE MERGER;
SPECIAL COVENANT OF SERIES FUND
SECTION 5.01 Conditions to Each Party's Obligation to Effect the
Merger. The respective obligations of each party to effect the Merger are
subject to the satisfaction at or prior to the Effective Time of the following
conditions:
(a) this Agreement shall have been adopted by the affirmative vote of
the shareholders of Value Fund and Series Fund by the requisite vote of each in
accordance with applicable law;
(b) no statute, rule, regulation, executive order, decree, or
injunction shall be enacted, entered, promulgated or enforced by any court or
governmental authority which prohibits or restricts the consummation of the
Merger;
(c) no suit, action, claim, proceeding or investigation before any
court, arbitrator or administrative, government or regulatory body, United
States or foreign, shall have been threatened or shall have been commenced and
be pending against either party or any of their respective affiliates,
associates, officers or directors seeking to prevent or delay the transactions
contemplated by, or challenging any of the terms or provisions of, the Agreement
or seeking damages in connection therewith;
(d) all approvals, consents, authorizations, orders and waivers from
governmental and regulatory agencies and third parties required to consummate
the transactions contemplated hereby (including the order of the Securities and
Exchange Commission declaring effective the Post-Effective Amendment to Series
Fund's Registration Statement on Form N-1A registering the Value Portfolio
Shares under the Securities Act of 1933), which, either individually or in the
aggregate, if not obtained would preclude the merger from occurring without a
violation of law or would have a material adverse effect on the financial
condition, results of operations or business of either party taken as a whole
following the Merger, shall have been obtained.
SECTION 5.02 Special Covenant of Series Fund. Series Fund hereby agrees
to comply with the provisions of Neb. Rev. Stat. Section 22-2076(2), agrees to
file a copy of this Agreement with the Secretary of State of the State of
Nebraska and expressly agrees that (i) it may be served with process within or
without the State of Nebraska in any proceeding in the courts of Nebraska for
the enforcement of any obligation of the Value Fund and in any proceeding for
the enforcement of the rights of a dissenting shareholder of
Value Fund against Series Fund and (ii) it will pay to the dissenting
shareholders of Value Fund, if any, the amount to which such disserting
shareholders would be entitled under the provisions of the NBCA.
ARTICLE VI
TERMINATION; AMENDMENT
SECTION 6.01 Termination. This Agreement may be terminated and the
merger contemplated hereby may be abandoned at any time prior to the Effective
Time, notwithstanding approval thereof by the shareholders of either or both
parties, by mutual consent of the Boards of Directors of Series Fund and Value
Fund.
SECTION 6.02 Amendment. This Agreement may be amended by action taken
by the Boards of Directors of Series Fund and Value Fund at any time before or
after approval of this Agreement by the respective shareholders thereof but,
after any such approval, no amendment shall be made which adversely affects the
rights of such shareholders hereunder without the approval of such shareholders
in the same manner as required for approval of this Agreement. This Agreement
may not be amended except by an instrument in writing signed on behalf of the
parties hereto by a duly authorized officer thereof.
SECTION 6.03 Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
SECTION 6.04 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nebraska for contracts to
be performed in their entirety therein, without reference to choice of law
principles thereof.
SECTION 6.05 Notices. Notices shall be sent to the addresses provided
by the parties.
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed on its behalf by its officers thereunto duly
authorized, all as of the day and year first above written.
Xxxxx Series Fund, Inc.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President
ATTEST:
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Secretary
Xxxxx Value Fund, Inc.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President
ATTEST:
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Secretary
The foregoing Agreement and Plan of Merger was duly adopted by the
Board of Directors of Xxxxx Value Fund, Inc. on October 16, 1989, and by the
Board of Directors of Xxxxx Series Fund, Inc. on the same day.
