AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the “Agreement”) is made as of April 29, 2005 in Boston, Massachusetts, by and among MML Series Investment Fund II (the “Series Investment Fund II”), a Massachusetts business trust, on behalf of its MML Small Company Opportunities Fund series(“Acquiring Fund”), MML Series Investment Fund (the “Series Investment Fund”), a Massachusetts business trust, on behalf of its MML Small Company Opportunities Fund series (“Acquired Fund”) and Massachusetts Mutual Life Insurance Company, a Massachusetts corporation.
PLAN OF REORGANIZATION
<![if
!supportLists]>(a)
<![endif]>Acquired
Fund will sell, assign, convey, transfer
and deliver to Acquiring Fund on the Exchange Date (as defined in Section
6) all
of its properties and assets existing at the Valuation Time (as defined in
Section 3(d)). In consideration
therefor, Acquiring Fund shall, on the Exchange Date, assume all of the
liabilities of Acquired Fund existing at the Valuation Time and deliver to
Acquired Fund a number of full and fractional shares of beneficial interest
of
Acquiring Fund (the “Merger Shares”) having an aggregate net asset value equal
to the value of the assets of Acquired Fund attributable to shares of Acquired
Fund transferred to Acquiring Fund on such date less the value of the
liabilities of Acquired Fund attributable to shares of Acquired Fund assumed
by
Acquiring Fund on such date. It is
intended that the reorganization described in this Plan shall be a
reorganization within the meaning of Section 368 of the Internal Revenue
Code of
1986, as amended (the “Code”).
<![if
!supportLists]>(b)
<![endif]>Upon consummation of the transactions described
in paragraph (a) of this Agreement, Acquired Fund shall distribute in complete
liquidation to its shareholders of record as of the Exchange Date Merger
Shares,
each shareholder being entitled to receive that proportion of such Merger
Shares
that the number of shares of beneficial interest of Acquired Fund held by
such
shareholder bears to the number of such shares of Acquired Fund outstanding
on
such date. Certificates representing the Merger Shares will not be issued.
AGREEMENT
Acquiring Fund and Acquired Fund agree as follows:
1. Representations and warranties of Acquiring Fund.
Acquiring Fund represents and warrants to and agrees with Acquired Fund that:
<![if
!supportLists]>(a)
<![endif]>Acquiring
Fund is a series of Series Investment
Fund II, a business trust duly established and validly existing under the
laws
of The Commonwealth of Massachusetts, and has power to own all of its properties
and assets and to carry out its obligations under this Agreement. Series
Investment Fund II is not required
to qualify as a foreign association in any jurisdiction. Each of Series Investment
Fund II and
Acquiring Fund has all necessary federal, state and local authorizations
to
carry on its business as now being conducted and to carry out this
Agreement.
<![if
!supportLists]>(b)
<![endif]>Series Investment Fund II is registered under
the
Investment Company Act of 1940, as amended (the “1940 Act”), as an open-end
management investment company, and such registration has not been revoked
or
rescinded and is in full force and effect.
<![if
!supportLists]>(c)
<![endif]>Reserved.
<![if
!supportLists]>(d)
<![endif]>Reserved.
<![if
!supportLists]>(e)
<![endif]>There
are no material legal, administrative or
other proceedings pending or, to the knowledge of Series Investment Fund
II or
Acquiring Fund, threatened against Series Investment Fund II or Acquiring
Fund
which assert liability or may, if successfully prosecuted to their conclusion,
result in liability on the part of Series Investment Fund II or Acquiring
Fund.
<![if
!supportLists]>(f)
<![endif]>Acquiring Fund has no known liabilities of
a
material nature, contingent or otherwise, other than liabilities incurred
pursuant to this Agreement.
<![if
!supportLists]>(g)
<![endif]>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 may be required under the Securities Act of 1933, as amended (the “1933
Act”), the Securities Exchange Act of 1934, as amended (the “1934 Act”), the
1940 Act, state securities or blue sky laws (which term as used herein shall
include the laws of the District of Columbia and of Puerto Rico) or the
Xxxx‑Xxxxx‑Xxxxxx Antitrust Improvements Act of 1976 (the “H‑S‑R Act”).
<![if
!supportLists]>(h)
<![endif]>The
definitive proxy statement of Acquired Fund
filed with the Securities and Exchange Commission (the “Commission”) pursuant to
Rule 14a-6(b) under the 1934 Act and relating to the approval of Acquired
Fund’s
shareholders referred to in Section 7(a) (the “Acquired Fund Proxy Statement”),
on the date of such filing (i) will comply in all material respects with
the
provisions of the 1934 Act and the 1940 Act and the rules and regulations
thereunder and (ii) will 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 not misleading; and on the date of the meeting of
Acquired Fund’s shareholders referred to in Section 7(a) below and on the
Exchange Date, the Acquired Fund Proxy Statement will 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 not misleading;
provided however, that the representations and warranties in this subsection
shall apply only to statements in or omissions from the Acquired Fund Proxy
Statement made in reliance upon and in conformity with information furnished
by
Series Investment Fund II and Acquiring Fund for use in the Acquired Fund
Proxy
Statement.
<![if
!supportLists]>(i)
<![endif]>There are no material contracts outstanding
to
which Acquiring Fund is a party, other than as disclosed in Series Investment
Fund II’s currently effective registration statement on Form N-1A.
<![if
!supportLists]>(j)
<![endif]>Acquiring Fund has no shares of beneficial
interest issued and outstanding.
<![if
!supportLists]>(k)
<![endif]>Acquiring Fund was established by the Trustees
of
Series Investment Fund II in order to effect the transactions described in
this
Agreement. It has not yet filed its
first federal income tax return and, thus, has not yet elected to be treated
as
a “regulated investment company” for federal income tax purposes. However, upon filing its first income
tax return at the completion of its first taxable year, Acquiring Fund will
elect to be a “regulated investment company” and until such time will take all
steps necessary to ensure that it qualifies for taxation as a “regulated
investment company” under Sections 851 and 852 of the Code. Acquiring Fund will
also ensure that its assets are sufficiently diversified so that each segregated
account investing all its assets in Acquiring Fund will be within the meaning
of
Section 817(h) of the Code and the applicable regulations thereunder.
<![if
!supportLists]>(l)
<![endif]>Acquiring Fund has filed or will file all federal
and state tax returns which, to the knowledge of Series Investment Fund II’s
officers, are required to be filed by Acquiring Fund and has paid or will
pay
all federal and state taxes shown to be due on said returns or on any
assessments received by Acquiring Fund.
All tax liabilities of Acquiring
Fund have been adequately provided for
on its books, and to the knowledge of Acquiring Fund, no tax deficiency or
liability of Acquiring Fund has been asserted, and no question with respect
thereto has been raised, by the Internal Revenue Service or by any state
or
local tax authority for taxes in excess of those already paid. As of the Exchange Date, Acquiring
Fund
is not under audit by the Internal Revenue Service or by any state or local
tax
authority for taxes in excess of those already paid.
<![if
!supportLists]>(m)
<![endif]>The issuance of the Merger Shares pursuant
to
this Agreement will be in compliance with all applicable federal securities
laws.
<![if
!supportLists]>(n)
<![endif]>The
Merger Shares to be issued to Acquired Fund
have been duly authorized and, when issued and delivered pursuant to this
Agreement, will be legally and validly issued and will be fully paid and
nonassessable by Acquiring Fund, and no shareholder of Acquiring Fund will
have
any preemptive right of subscription or purchase in respect thereof.
2. Representations and warranties of Acquired Fund.
Acquired Fund represents and warrants to and
agrees with Acquiring Fund that:
<![if
!supportLists]>(a)
<![endif]>Acquired
Fund is a series of Series Investment
Fund, a business trust duly established and validly existing under the laws
of
The Commonwealth of Massachusetts, and has power to own all of its properties
and assets and to carry out its obligations under this Agreement. Series Investment Fund is not required
to qualify as a foreign association in any jurisdiction. Each
of Series Investment Fund and
Acquired Fund has all necessary federal, state and local authorizations to
carry
on its business as now being conducted and to carry out this Agreement.
<![if
!supportLists]>(b)
<![endif]>Series Investment Fund is registered under
the
1940 Act as an open‑end management investment company, and such registration has
not been revoked or rescinded and is in full force and effect.
<![if
!supportLists]>(c)
<![endif]>A
statement of assets and liabilities, statement
of operations, statement of changes in net assets and schedule of investments
(indicating their market values) of Acquired Fund as of and for the fiscal
year
ended December 31, 2004, such statements and schedule having been audited
by
Deloitte & Touche LLP, independent accountants, have been furnished to
Acquiring Fund. Such statement of
assets and liabilities and scheduleof investments fairly present the
financial position of Acquired Fund as of the date thereof, and such statements
of operations and changes in net assets fairly reflect the results of its
operations and changes in net assets for the periods covered thereby in
conformity with generally accepted accounting principles.
<![if
!supportLists]>(d)
<![endif]>The prospectus and statement of additional
information dated May 1, 2004, previously furnished to Acquiring Fund, as
modified by any amendment or supplement thereto or any superseding prospectus
or
statement of additional information in respect thereof in effect prior to
the
Exchange Date, which will be furnished to Acquiring Fund (collectively, the
“Acquired Fund Prospectus”), do not, as of the date hereof, and will not, as of
the Exchange Date, 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 not misleading; provided however, that Acquired Fund makes
no
representation or warranty as to any information in the Acquired Fund Prospectus
that does not specifically relate to Acquired Fund.
<![if
!supportLists]>(e)
<![endif]>There
are no material legal, administrative or
other proceedings pending or, to the knowledge of Series Investment Fund
or
Acquired Fund, threatened against Series Investment Fund or Acquired Fund
which
assert liability or may, if successfully prosecuted to their conclusion,
result
in liability on the part of Series Investment Fund or Acquired Fund.
<![if
!supportLists]>(f)
<![endif]>Acquired Fund has no known liabilities of a
material nature, contingent or otherwise, other than those shown as belonging
to
it on its statement of assets and liabilities as of December 31, 2004, those
incurred pursuant to this Agreement,and those incurred in the ordinary
course of Acquired Fund’s business as an investment company since such
date. Prior to the Exchange Date,
Acquired Fund will advise Acquiring Fund of all material liabilities, contingent
or otherwise, incurred by it subsequent to December 31, 2004, whether or
not
incurred in the ordinary course of business.
<![if
!supportLists]>(g)
<![endif]>No
consent, approval, authorization or order of
any court or governmental authority is required for the consummation by Acquired
Fund of the transactions contemplated by this Agreement, except such as may
be
required under the 1933 Act, the 1934 Act, the 1940 Act, state securities
or
blue sky laws, or the H‑S‑R Act.
<![if
!supportLists]>(h)
<![endif]>The
Acquired Fund Proxy Statement, on the date of
its filing (i) will comply in all material respects with the provisions of
the
1934 Act and the 1940 Act and the rules and regulations thereunder and (ii)
will
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
not misleading; and on the date of the meeting of Acquired Fund’s shareholders
referred to in Section 7(a) below and on the Exchange Date, the Acquired
Fund
Proxy Statement will 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 not misleading; provided however, that none of the
representations and warranties in this subsection shall apply to statements
in
or omissions from the Acquired Fund Proxy Statement made in reliance upon
and in
conformity with information furnished by Series Investment Fund II or Acquiring
Fund for use in the Acquired Fund Proxy Statement.
<![if
!supportLists]>(i)
<![endif]>There are no material contracts outstanding
to
which Acquired Fund is a party, other than as disclosed in the Acquired Fund
Prospectus.
<![if
!supportLists]>(j)
<![endif]>All of the issued and outstanding shares of
beneficial interest of Acquired Fund have been offered for sale and sold
in
conformity with all applicable federal securities laws.
<![if
!supportLists]>(k)
<![endif]>Acquired Fund is and will at all times through
the Exchange Date qualify for taxation as a “regulated investment company” under
Sections 851 and 852 of the Code.
<![if
!supportLists]>(l)
<![endif]>The assets of the Acquired Fund have been and
will be at all times through the Exchange Date sufficiently diversified so
that
each segregated account investing all its assets in Acquired Fund will be
within
the meaning of Section 817(h) of the Code and the applicable regulations
thereunder.
<![if
!supportLists]>(m)
<![endif]>Acquired Fund has filed or will file all federal
and state tax returns which, to the knowledge of Series Investment Fund’s
officers, are required to be filed by Acquired Fund and has paid or will
pay all
federal and state taxes shown to be due on said returns or on any assessments
received by Acquired Fund. All tax
liabilities of Acquired Fund have been adequately provided for on its books,
and
to the knowledge of Acquired Fund, no tax deficiency or liability of Acquired
Fund has been asserted, and no question with respect thereto has been raised,
by
the Internal Revenue Service or by any state or local tax authority for taxes
in
excess of those already paid. As of
the Exchange Date, Acquired Fund is not under audit by the Internal Revenue
Service or by any state or local tax authority for taxes in excess of those
already paid.
<![if
!supportLists]>(n)
<![endif]>At
both the Valuation Time and the Exchange Date,
Acquired Fund will have full right, power and authority to sell, assign,
transfer and deliver the Investments and any other assets and liabilities
of
Acquired Fund to be transferred to Acquiring Fund pursuant to this
Agreement. At the Exchange Date,
subject only to the delivery of the Investments and any such other assets
and
liabilities as contemplated by this Agreement, Acquiring Fund will acquire
the
Investments and any such other assets and liabilities subject to no
encumbrances, liens or security interests whatsoever and without any
restrictions upon the transfer thereof (except for such restrictions as
previously disclosed to Acquiring Fund by Acquired Fund). As used in this Agreement, the term
“Investments” shall mean Acquired Fund’s investments shown on the schedule of
its investments as of December 31, 2004referred to in Section 2(c)
hereof, as supplemented with such changes as Acquired Fund shall make, and
changes resulting from stock dividends, stock splits, mergers and similar
corporate actions.
<![if
!supportLists]>(o)
<![endif]>No registration under the 1933 Act of any of
the
Investments would be required if they were, as of the time of such transfer,
the
subject of a public distribution by either of Acquiring Fund or Acquired
Fund,
except as previously disclosed to Acquiring Fund by Acquired Fund.
3. Reorganization.
<![if
!supportLists]>(a)
<![endif]>Subject
to the requisite approval of the
shareholders of Acquired Fund and to the other terms and conditions contained
herein, Acquired Fund agrees to sell, assign, convey, transfer and deliver
to
Acquiring Fund, and Acquiring Fund agrees to acquire from Acquired Fund,
on the
Exchange Date all of the Investments and all of the cash and other properties
and assets of Acquired Fund, whether accrued or contingent (including cash
received by Acquired Fund upon the liquidation by Acquired Fund of any
investments purchased by Acquired Fund after December 31, 2004 and designated
by
Acquiring Fund as being unsuitable for it to acquire), in exchange for that
number of Merger Shares provided for in Section 4 and the assumption by
Acquiring Fund of all of the liabilities of Acquired Fund, whether accrued
or
contingent, existing at the Valuation Time. Pursuant to this Agreement, Acquired
Fund will, as soon as practicable after the Exchange Date, distribute all
of the
Merger Shares received by it to the shareholders of Acquired Fund, in complete
liquidation of Acquired Fund.
<![if
!supportLists]>(b)
<![endif]>As soon as practicable following the requisite
approval of the shareholders of Acquired Fund, Acquired Fund will, at its
expense, liquidate such of its portfolio securities as Acquiring Fund shall
indicate it does not wish to acquire.
Such liquidation will be substantially
completed prior to the Exchange
Date, unless otherwise agreed by Acquired Fund and Acquiring Fund.
<![if
!supportLists]>(c)
<![endif]>Acquired
Fund will pay or cause to be paid to
Acquiring Fund any interest, cash or such dividends, rights and other payments
received by it on or after the Exchange Date with respect to the Investments
and
other properties and assets of Acquired Fund, whether accrued or contingent,
received by it on or after the Exchange Date. Any such distribution shall be deemed
included in the assets transferred to Acquiring Fund at the Exchange Date
and
shall not be separately valued unless the securities in respect of which
such
distribution is made shall have gone “ex” such distribution prior to the
Valuation Time, in which case any such distribution which remains unpaid
at the
Exchange Date shall be included in the determination of the value of the
assets
of Acquired Fund acquired by Acquiring Fund.
<![if
!supportLists]>(d)
<![endif]>The Valuation Time shall be 4:00 p.m. Boston
time
on April 29, 2005, or such earlier or later day as may be mutually agreed
upon
in writing by the parties hereto (the “Valuation Time”).
4. Exchange date; valuation time.
On the Exchange Date, Acquiring Fund will
deliver to Acquired Fund a number of full and fractional Merger Shares having
an
aggregate net asset value equal to the value of assets of Acquired Fund
attributable to shares of Acquired Fund transferred to Acquiring Fund on
such
date less the value of the liabilities of Acquired Fund attributable to the
shares of Acquired Fund assumed by Acquiring Fund on that date.
<![if
!supportLists]>(a)
<![endif]>The
net asset value of the Merger Shares to be
delivered to Acquired Fund, the value of the assets attributable to the shares
of Acquired Fund and the value of the liabilities attributable to the shares
of
Acquired Fund to be assumed by Acquiring Fund shall in each case be determined
as of the Valuation Time.
<![if
!supportLists]>(b)
<![endif]>The net asset value of the Merger Shares, and
the
value of the assets and liabilities of the shares of Acquired Fund shall
be
determined by Acquiring Fund, in cooperation with Acquired Fund, pursuant
to
procedures Acquiring Fund would use in determining the fair market value
of
Acquiring Fund’s assets and liabilities.
<![if
!supportLists]>(c)
<![endif]>No
adjustment shall be made in the net asset
value of either Acquired Fund or Acquiring Fund to take into account differences
in realized and unrealized gains and losses.
<![if
!supportLists]>(d)
<![endif]>Reserved.
<![if
!supportLists]>(e)
<![endif]>Acquired
Fund shall distribute the Merger Shares
to the shareholders of Acquired Fund by furnishing written instructions to
Acquiring Fund’s transfer agent which will as soon as practicable set up open
accounts for each shareholder of Acquired Fund in accordance with written
instructions furnished by Acquired Fund.
With respect to any Acquired Fund
shareholder holding share certificates
as of the Exchange Date, Acquiring Fund will not permit such shareholder
to
receive dividends and other distributions on the Merger Shares (although
such
dividends and other distributions shall be credited to the account of such
shareholder), or pledge such Merger Shares until such shareholder has
surrendered his or her outstanding Acquired Fund certificates or, in the
event
of lost, stolen, or destroyed certificates, posted adequate bond. In the event that a shareholder shall
not be permitted to receive dividends and other distributions on the Merger
Shares as provided in the preceding sentence, Acquiring Fund shall pay any
such
dividends or distributions in additional shares, notwithstanding any election
such shareholder shall have made previously with respect to the payment,
in cash
or otherwise, of dividends and distributions on shares of Acquired Fund. Acquired Fund will, at its expense,
request the shareholders of Acquired Fund to surrender their outstanding
Acquired Fund certificates, or post adequate bond, as the case may be.
<![if
!supportLists]>(f)
<![endif]>Acquiring Fund shall assume all liabilities
of
Acquired Fund, whether accrued or contingent, in connection with the acquisition
of assets and subsequent dissolution of Acquired Fund or otherwise.
5. Expenses, fees, etc.
<![if
!supportLists]>(a)
<![endif]>All
fees and expenses, including legal and
accounting expenses, portfolio transfer taxes (if any) or other similar expenses
incurred in connection with the consummation by Acquired Fund and Acquiring
Fund
of the transactions contemplated by this Agreement will be borne by Massachusetts Mutual
Life Insurance Company.
Notwithstanding any of the foregoing,
expenses will in any event be paid
by the party directly incurring such expenses if and to the extent that the
payment by another party of such expenses would result in the disqualification
of Acquiring Fund or Acquired Fund, as the case may be, as a “regulated
investment company” within the meaning of Section 851 of the Code.
<![if
!supportLists]>(b)
<![endif]>Reserved.
<![if
!supportLists]>(c)
<![endif]>Reserved.
<![if
!supportLists]>(d)
<![endif]>Reserved.
<![if
!supportLists]>(e)
<![endif]>Notwithstanding
any other provisions of this
Agreement, if for any reason the transactions contemplated by this Agreement
are
not consummated, no party shall be liable to the other party for any damages
resulting therefrom, including without limitation consequential damages,
except
as specifically set forth above.
6. Exchange date.
Delivery of the assets of Acquired Fund to
be
transferred, assumption of the liabilities of Acquired Fund to be assumed
and
the delivery of the Merger Shares to be issued shall be made at the offices
of
Ropes & Xxxx LLP, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx, at 7:30
A.M. on the next full business day following the Valuation Time, or at such
other time and date agreed to by Acquiring Fund and Acquired Fund, the date
and
time upon which such delivery is to take place being referred to herein as
the
“Exchange Date.”
7. Shareholder approval; dissolution.
<![if
!supportLists]>(a)
<![endif]>Series
Investment Fund, on behalf of Acquired
Fund, agrees to call a meeting of shareholders of Acquired Fund, as specified
in
the definitive Acquired Fund Proxy Statement, to solicit the approval of
Acquired Fund’s shareholders of the matters contemplated by this Agreement.
<![if
!supportLists]>(b)
<![endif]>Acquired Fund agrees that the liquidation and
dissolution of Acquired Fund will be effected in the manner provided in the
Agreement and Declaration of Trust of Series Investment Fund in accordance
with
applicable law and that on and after the Exchange Date, Acquired Fund shall
not
conduct any business except in connection with its liquidation and
dissolution.
<![if
!supportLists]>(c)
<![endif]>Reserved.
8. Conditions to Acquiring Fund’s obligations.
The obligations of Acquiring Fund hereunder shall be subject to the
following conditions:
<![if
!supportLists]>(a)
<![endif]>That
this Agreement shall have been adopted and
the transactions contemplated hereby shall have been approved by the affirmative
vote of (i) at least a majority of the Trustees of Series Investment Fund
(including a majority of those Trustees who are not “interested persons” of
Series Investment Fund, as defined in Section 2(a)(19) of the 0000 Xxx);
(ii) at
least a majority of the Trustees of Series Investment Fund II (including
a
majority of those Trustees who are not “interested persons” of Series Investment
Fund II, as defined in Section 2(a)(19) of the 0000 Xxx); and (iii) at least
a
“majority of the outstanding voting securities” of Acquired Fund (as defined in
Section 2(a)(42) of the 1940 Act).
<![if
!supportLists]>(b)
<![endif]>That Acquired Fund shall have furnished to
Acquiring Fund a statement of Acquired Fund’s net assets, with values determined
as provided in Section 4 of this Agreement, together with a list of Investments
with their respective tax costs, all as of the Valuation Time, certified
on
Acquired Fund’s behalf by Series Investment Fund’s President (or any Vice
President) and Treasurer (or any Assistant Treasurer), and a certificate
of both
such officers, dated the Exchange Date, to the effect that as of the Valuation
Time and as of the Exchange Date there has been no material adverse change
in
the financial position of Acquired Fund since December 31, 2004, other than
changes in the Investments and other assets and properties since that date,
changes in the market value of the Investments and other assets of Acquired
Fund, changes due to net redemptions or changes due to dividends paid or
losses
from operations.
<![if
!supportLists]>(c)
<![endif]>That
Series Investment Fund, on behalf of
Acquired Fund, shall have furnished to Acquiring Fund a statement, dated
the
Exchange Date, signed on behalf of Acquired Fund by Series Investment Fund’s
President (or any Vice President) and Treasurer (or any Assistant Treasurer)
certifying that as of the Valuation Time and as of the Exchange Date all
representations and warranties of Acquired Fund made in this Agreement are
true
and correct in all material respects as if made at and as of such dates,
and
that Acquired Fund has complied with all of the agreements and satisfied
all of
the conditions on its part to be performed or satisfied at or prior to each
of
such dates.
<![if
!supportLists]>(d)
<![endif]>Reserved.
<![if
!supportLists]>(e)
<![endif]>That
there shall not be any material litigation
pending or threatened with respect to the matters contemplated by this
Agreement.
<![if
!supportLists]>(f)
<![endif]>That Acquiring Fund shall have received an
opinion of Ropes & Xxxx LLP, in form satisfactory to Acquiring Fund and
dated the Exchange Date, to the effect that (i) Series Investment Fund is
a
business trust duly established and validly existing under the laws of The
Commonwealth of Massachusetts, and, to the knowledge of such counsel, is
not
required to qualify to do business as a foreign association in any jurisdiction
except as may be required by state securities or blue sky laws, (ii) this
Agreement has been duly authorized, executed, and delivered by Series Investment
Fund, on behalf of Acquired Fund, and, assuming that the Acquired Fund Proxy
Statement complies with the 1934 Act and the 1940 Act and assuming due
authorization, execution and delivery of this Agreement by Series Investment
Fund II, on behalf of Acquiring Fund, is a valid and binding obligation of
Acquired Fund, (iii) Acquired Fund has power to sell, assign, convey, transfer
and deliver the assets contemplated hereby and, upon consummation of the
transactions contemplated hereby in accordance with the terms of this Agreement,
Acquired Fund will have duly sold, assigned, conveyed, transferred and delivered
such assets to Acquiring Fund, (iv) the execution and delivery of this Agreement
did not, and the consummation of the transactions contemplated hereby will
not,
violate Series Investment Fund’s Agreement and Declaration of Trust, as amended,
or Bylaws or any provision of any agreement known to such counsel to which
Series Investment Fund or Acquired Fund is a party or by which it is bound,
it
being understood that with respect to investment restrictions as contained
in
Series Investment Fund’s Agreement and Declaration of Trust, Bylaws, then
current prospectus or statement of additional information, such counsel may
rely
upon a certificate of an officer of Series Investment Fund whose responsibility
it is to advise Series Investment Fund and Acquired Fund with respect to
such
matters, (v) no consent, approval, authorization or order of any court or
governmental authority is required for the consummation by Series Investment
Fund, on behalf of Acquired Fund, of the transactions contemplated hereby,
except such as have been obtained under the 1933 Act, the 1934 Act and the
1940
Act and such as may be required under state securities or blue sky laws and
the
H‑S‑R Act, and (vi) such other matters as Acquiring Fund may reasonably deem
necessary or desirable.
<![if
!supportLists]>(g)
<![endif]>That
Acquiring Fund shall have received an
opinion of Ropes & Xxxx LLP dated the Exchange Date (which opinion would be
based upon certain factual representations and subject to certain
qualifications), to the effect that, on the basis of the existing provisions
of
the Code, current administrative rules and court decisions, for federal income
tax purposes: (i) the transactions contemplated by this Agreement will
constitute a reorganization within the meaning of Section 368(a) of the Code
and
Acquired Fund and Acquiring 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 Acquiring Fund or its shareholders upon receipt of the Investments
transferred to Acquiring Fund pursuant to this Agreement in exchange for
the
Merger Shares, (iii) the basis to Acquiring Fund of the Investments will
be the
same as the basis of the Investments in the hands of Acquired Fund immediately
prior to such exchange, (iv) Acquiring Fund’s holding periods with respect to
the Investments will include the respective periods for which the Investments
were held by Acquired Fund, and (v) Acquiring Fund will succeed to and take
into
account the items of Acquired Fund described in Section 381(c) of the Code,
subject to the conditions and limitations specified in Sections 381, 382,
383
and 384 of the Code and regulations thereunder. The opinion will express no view
with
respect to the effect of the reorganization on any transferred asset as to
which
any unrealized gain or loss is required to be recognized at the end of a
taxable
year (or on the termination or transfer thereof) under federal income tax
principles.
<![if
!supportLists]>(h)
<![endif]>That
the assets of Acquired Fund to be acquired
by Acquiring Fund will include no assets which Acquiring Fund, by reason
of
charter limitations or of investment restrictions disclosed in its current
registration statement in effect on the Exchange Date, may not properly
acquire.
<![if
!supportLists]>(i)
<![endif]>Reserved.
<![if
!supportLists]>(j)
<![endif]>That Acquiring Fund shall have received from
the
Commission, any relevant state securities administrator, the Federal Trade
Commission (the “FTC”) and the Department of Justice (the “Department”) such
order or orders as Ropes & Xxxx LLP deems reasonably necessary or desirable
under the 1933 Act, the 1934 Act, the 1940 Act, any applicable state securities
or blue sky laws and the H‑S‑R Act in connection with the transactions
contemplated hereby, and that all such orders shall be in full force and
effect.
<![if
!supportLists]>(k)
<![endif]>That all proceedings taken by Acquired Fund
in
connection with the transactions contemplated by this Agreement and all
documents incidental thereto shall be satisfactory in form and substance
to
Acquiring Fund and Ropes & Xxxx LLP.
<![if
!supportLists]>(l)
<![endif]>Reserved.
<![if
!supportLists]>(m)
<![endif]>That Acquired Fund’s custodian shall have
delivered to Acquiring Fund a certificate identifying all of the assets of
Acquired Fund held by such custodian as of the Valuation Time.
<![if
!supportLists]>(n)
<![endif]>That
Acquired Fund’s transfer agent shall have
provided to Acquiring Fund (i) the originals or true copies of all of the
records of Acquired Fund in the possession of such transfer agent as of the
Exchange Date, (ii) a certificate setting forth the number of shares of Acquired
Fund outstanding as of the Valuation Time, and (iii) the name and address
of
each holder of record of any such shares and the number of shares held of
record
by each such shareholder.
<![if
!supportLists]>(o)
<![endif]>That all of the issued and outstanding shares
of
beneficial interest of Acquired Fund shall have been offered for sale and
sold
in conformity with all applicable state securities or blue sky laws and,
to the
extent that any audit of the records of Acquired Fund or its transfer agent
by
Acquiring Fund or its agents shall have revealed otherwise, either (i) Acquired
Fund shall have taken all actions that in the opinion of Acquiring Fund or
its
counsel are necessary to remedy any prior failure on the part of Acquired
Fund
to have offered for sale and sold such shares in conformity with such laws
or
(ii) Acquired Fund shall have furnished (or caused to be furnished) surety,
or
deposited (or caused to be deposited) assets in escrow, for the benefit of
Acquiring Fund in amounts sufficient and upon terms satisfactory, in the
opinion
of Acquiring Fund or its counsel, to indemnify Acquiring Fund against any
expense, loss, claim, damage or liability whatsoever that may be asserted
or
threatened by reason of such failure on the part of Acquired Fund to have
offered and sold such shares in conformity with such laws.
<![if
!supportLists]>(p)
<![endif]>Reserved.
<![if
!supportLists]>(q)
<![endif]>That Acquired Fund shall have executed and
delivered to Acquiring Fund an instrument of transfer dated as of the Exchange
Date pursuant to which Acquired Fund will assign, transfer and convey all
of the
assets and other property to Acquiring Fund existing at the Valuation Time
in
connection with the transactions contemplated by this Agreement.
9. Conditions to Acquired Fund’s obligations.
The obligations of Acquired Fund hereunder shall be subject to the following
conditions:
<![if
!supportLists]>(a)
<![endif]>That
this Agreement shall have been adopted and
the transactions contemplated hereby shall have been approved by the affirmative
vote of (i) at least a majority of the Trustees of Series Investment Fund
(including a majority of those Trustees who are not “interested persons” of
Series Investment Fund, as defined in Section 2(a)(19) of the 0000 Xxx);
(ii) at
least a majority of the Trustees of Series Investment Fund II (including
a
majority of those Trustees who are not “interested persons” of Series Investment
Fund II, as defined in Section 2(a)(19) of the 0000 Xxx); and (iii) at least
a
“majority of the outstanding voting securities” of Acquired Fund (as defined in
Section 2(a)(42) of the 1940 Act).
<![if
!supportLists]>(b)
<![endif]>Reserved.
<![if
!supportLists]>(c)
<![endif]>That
Series Investment Fund II, on behalf of
Acquiring Fund, shall have executed and delivered to Acquired Fund an Assumption
of Liabilities dated as of the Exchange Date pursuant to which Acquiring
Fund
will assume all of the liabilities of Acquired Fund existing at the Valuation
Time in connection with the transactions contemplated by this Agreement.
<![if
!supportLists]>(d)
<![endif]>That Series Investment Fund II, on behalf of
Acquiring Fund, shall have furnished to Acquired Fund a statement, dated
the
Exchange Date, signed on behalf of Acquiring Fund by Series Investment Fund
II’s
President (or any Vice President) and Treasurer (or any Assistant Treasurer)
certifying that as of the Valuation Time and as of the Exchange Date all
representations and warranties of Acquiring Fund made in this Agreement are
true
and correct in all material respects as if made at and as of such dates,
and
that Acquiring Fund has complied with all of the agreements and satisfied
all of
the conditions on its part to be performed or satisfied at or prior to each
of
such dates.
<![if
!supportLists]>(e)
<![endif]>That
there shall not be any material litigation
pending or threatened with respect to the matters contemplated by this
Agreement.
<![if
!supportLists]>(f)
<![endif]>That Acquired Fund shall have received an opinion
of Ropes & Xxxx LLP, in form satisfactory to Acquired Fund and dated the
Exchange Date, to the effect that (i) Series Investment Fund II is a business
trust duly established and validly existing under the laws of The Commonwealth
of Massachusetts, and, to the knowledge of such counsel, is not required
to
qualify to do business as a foreign association in any jurisdiction except
as
may be required by state securities or blue sky laws, (ii) this Agreement
has
been duly authorized, executed, and delivered by Series Investment Fund II,
on
behalf of Acquiring Fund, and, assuming that the Acquired Fund Proxy Statement
complies with the 1934 Act and the 1940 Act and assuming due authorization,
execution and delivery of this Agreement by Series Investment Fund, on behalf
of
Acquired Fund, is a valid and binding obligation of Acquiring Fund, (iii)
the
Merger Shares to be delivered to Acquired Fund as provided for by this Agreement
are duly authorized and upon such delivery will be validly issued and will
be
fully paid and nonassessable by Acquiring Fund and no shareholder of Acquiring
Fund has any preemptive right to subscription or purchase in respect thereof,
(iv) the execution and delivery of this Agreement did not, and the consummation
of the transactions contemplated hereby will not, violate Series Investment
Fund
II’s Agreement and Declaration of Trust, as amended, or Bylaws, or any provision
of any agreement known to such counsel to which Series Investment Fund II
or
Acquiring Fund is a party or by which it is bound, it being understood that
with
respect to investment restrictions as contained in Series Investment Fund
II’s
Agreement and Declaration of Trust, Bylaws, then current prospectus or statement
of additional information, such counsel may rely upon a certificate of an
officer of Series Investment Fund II whose responsibility it is to advise
Series
Investment Fund II and Acquiring Fund with respect to such matters, and (v)
no
consent, approval, authorization or order of any court or governmental authority
is required for the consummation by Series Investment Fund II, on behalf
of
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 under state securities or blue sky laws and the H-S-R Act.
<![if
!supportLists]>(g)
<![endif]>That
Acquired Fund shall have received an opinion
of Ropes & Xxxx LLP dated the Exchange Date (which opinion would be based
upon certain factual representations and subject to certain qualifications),
to
the effect that, on the basis of the existing provisions of the Code, current
administrative rules and court decisions, for federal income tax purposes:
(i)
the transactions contemplated by this Agreement will constitute a reorganization
within the meaning of Section 368(a) of the Code and Acquired Fund and Acquiring
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 Acquired Fund
upon the transfer of the Investments to Acquiring Fund and the assumption
by
Acquiring Fund of the liabilities of Acquired Fund, or upon the distribution
of
the Merger Shares by Acquired Fund to its shareholders, pursuant to this
Agreement, (iii) no gain or loss will be recognized by the Acquired Fund
shareholders on the exchange of their shares of Acquired Fund for Merger
Shares,
(iv) the aggregate tax basis of the Merger Shares an Acquired Fund shareholder
receives in connection with the transaction will be the same as the aggregate
tax basis of his or her Acquired Fund shares exchanged therefor, and (v)
an
Acquired Fund shareholder’s holding period for his or her Merger Shares will be
determined by including the period for which he or she held Acquired Fund
shares
exchanged therefor, provided that the shareholder held Acquired Fund’s shares as
a capital asset. The opinion will
express no view with respect to the effect of the reorganization on any
transferred asset as to which any unrealized gain or loss is required to
be
recognized at the end of a taxable year (or on the termination or transfer
thereof) under federal income tax principles.
<![if
!supportLists]>(h)
<![endif]>That
all proceedings taken by or on behalf of
Acquiring Fund in connection with the transactions contemplated by this
Agreement and all documents incidental thereto shall be satisfactory in form
and
substance to Acquired Fund and Ropes & Xxxx LLP.
<![if
!supportLists]>(i)
<![endif]>Reserved.
<![if
!supportLists]>(j)
<![endif]>That Acquired Fund shall have received from
the
Commission, any relevant state securities administrator, the FTC and the
Department such order or orders as Ropes & Xxxx LLP deems reasonably
necessary or desirable under the 1933 Act, the 1934 Act, the 1940 Act, any
applicable state securities or blue sky laws and the H‑S‑R Act in connection
with the transactions contemplated hereby, and that all such orders shall
be in
full force and effect.
10. Indemnification.
<![if
!supportLists]>(a)
<![endif]>Series
Investment Fund, on behalf of Acquired
Fund, will indemnify and hold harmless, out of the assets of Acquired Fund
but
no other assets, Series Investment Fund II, its trustees and its officers
(for
purposes of this subparagraph, the “Indemnified Parties”) against any and all
expenses, losses, claims, damages and liabilities at any time imposed upon
or
reasonably incurred by any one or more of the Indemnified Parties in connection
with, arising out of, or resulting from any claim, action, suit or proceeding
in
which any one or more of the Indemnified Parties may be involved or with
which
any one or more of the Indemnified Parties may be threatened by reason of
any
untrue statement or alleged untrue statement of a material fact relating
to
Series Investment Fund or Acquired Fund contained in the Acquired Fund Proxy
Statement or any amendment or supplement to any of the foregoing, or arising
out
of or based upon the omission or alleged omission to state in any of the
foregoing a material fact relating to Series Investment Fund or Acquired
Fund
required to be stated therein or necessary to make the statements relating
to
Series Investment Fund or Acquired Fund therein not misleading, including,
without limitation, any amounts paid by any one or more of the Indemnified
Parties in a reasonable compromise or settlement of any such claim, action,
suit
or proceeding, or threatened claim, action, suit or proceeding made with
the
consent of Series Investment Fund.
The Indemnified Parties will notify
Series Investment Fund in writing
within ten days after the receipt by any one or more of the Indemnified Parties
of any notice of legal process or any suit brought against or claim made
against
such Indemnified Party as to any matters covered by this Section 10(a). Series Investment Fund shall be entitled
to participate at its own expense in the defense of any claim, action, suit
or
proceeding covered by this Section 10(a), or, if it so elects, to assume
at its
expense by counsel satisfactory to the Indemnified Parties the defense of
any
such claim, action, suit or proceeding, and if Series Investment Fund elects
to
assume such defense, the Indemnified Parties shall be entitled to participate
in
the defense of any such claim, action, suit or proceeding at their expense. Series Investment Fund’s obligation
under this Section 10(a) to indemnify and hold harmless the Indemnified Parties
shall constitute a guarantee of payment so that Series Investment Fund will
pay
in the first instance any expenses, losses, claims, damages and liabilities
required to be paid by it under this Section 10(a) without the necessity
of the
Indemnified Parties’ first paying the same.
<![if
!supportLists]>(b)
<![endif]>Series Investment Fund II, on behalf of Acquiring
Fund, will indemnify and hold harmless, out of the assets of Acquiring Fund
but
no other assets, Series Investment Fund, its trustees and its officers (for
purposes of this subparagraph, the “Indemnified Parties”) against any and all
expenses, losses, claims, damages and liabilities at any time imposed upon
or
reasonably incurred by any one or more of the Indemnified Parties in connection
with, arising out of, or resulting from any claim, action, suit or proceeding
in
which any one or more of the Indemnified Parties may be involved or with
which
any one or more of the Indemnified Parties may be threatened by reason of
any
untrue statement or alleged untrue statement of a material fact relating
to
Series Investment Fund II or Acquiring Fund contained in the Acquired Fund
Proxy
Statement, or any amendment or supplement to any thereof, or arising out
of, or
based upon, the omission or alleged omission to state in any of the foregoing
a
material fact relating to Series Investment Fund II or Acquiring Fund required
to be stated therein or necessary to make the statements relating to Series
Investment Fund II or Acquiring Fund therein not misleading, including without
limitation any amounts paid by any one or more of the Indemnified Parties
in a
reasonable compromise or settlement of any such claim, action, suit or
proceeding, or threatened claim, action, suit or proceeding made with the
consent of Series Investment Fund II.
The Indemnified Parties will notify
Series Investment Fund II in writing
within ten days after the receipt by any one or more of the Indemnified Parties
of any notice of legal process or any suit brought against or claim made
against
such Indemnified Party as to any matters covered by this Section 10(b). Series Investment Fund II shall be
entitled to participate at its own expense in the defense of any claim, action,
suit or proceeding covered by this Section 10(b), or, if it so elects, to
assume
at its expense by counsel satisfactory to the Indemnified Parties the defense
of
any such claim, action, suit or proceeding, and, if Series Investment Fund
II
elects to assume such defense, the Indemnified Parties shall be entitled
to
participate in the defense of any such claim, action, suit or proceeding
at
their own expense. Series
Investment Fund II’s obligation under this Section 10(b) to indemnify and hold
harmless the Indemnified Parties shall constitute a guarantee of payment
so that
Series Investment Fund II will pay in the first instance any expenses, losses,
claims, damages and liabilities required to be paid by it under this Section
10(b) without the necessity of the Indemnified Parties’ first paying the same.
11. No broker, etc.
Each of Acquired Fund and Acquiring Fund
represents that there is no person who has dealt with it, or Series Investment
Fund or Series Investment Fund II, as applicable, who by reason of such dealings
is entitled to any broker’s or finder’s or other similar fee or commission
arising out of the transactions contemplated by this Agreement.
12. Termination.
Acquired Fund and Acquiring Fund may, by mutual
consent of the trustees of Series Investment Fund and the trustees of Series
Investment Fund II on behalf of Acquired Fund and Acquiring Fund, respectively,
terminate this Agreement, and Acquired Fund or Acquiring Fund, after
consultation with counsel and by consent of their trustees or an officer
authorized by such trustees, may waive any condition to their respective
obligations hereunder. If the
transactions contemplated by this Agreement have not been substantially
completed by June 30, 2005, this Agreement shall automatically terminate
on that
date unless a later date is agreed to by Acquired Fund and Acquiring Fund.
13. Rule 145.
Pursuant to Rule 145 under the 1933 Act, Acquiring Fund will, in connection with the issuance of any Merger Shares to any person who at the time of the transaction contemplated hereby is deemed to be an affiliate of a party to the transaction pursuant to Rule 145(c), issue stop transfer instructions to Acquiring Fund’s transfer agent with respect to such shares. Acquired Fund will provide Acquiring Fund on the Exchange Date with the name of any Acquired Fund shareholder who is to the knowledge of Acquired Fund an affiliate of Acquired Fund on such date.
14. Covenants, etc. deemed material.
All covenants, agreements, representations
and
warranties made under this Agreement and any certificates delivered pursuant
to
this Agreement shall be deemed to have been material and relied upon by each
of
the parties, notwithstanding any investigation made by them or on their behalf.
15. Sole agreement; amendments.
This Agreement supersedes all previous
correspondence and oral communications between the parties regarding the
subject
matter hereof, constitutes the only understanding with respect to such subject
matter, may not be changed except by a letter of agreement signed by each
party
hereto, and shall be construed in accordance with and governed by the laws
of
The Commonwealth of Massachusetts.
16. Agreement and
declaration of trust.
Copies of the Agreements and Declarations
of
Trust of Series Investment Fund and Series Investment Fund II are on file
with
the Secretary of State of The Commonwealth of Massachusetts, and notice is
hereby given that this instrument is executed by the Trustees of Series
Investment Fund and Series Investment Fund II, respectively, as Trustees
and not
individually and that the obligations of this instrument are not binding
upon
any of the Trustees or officers of Series Investment Fund or Series Investment
Fund II, or shareholders of Acquired Fund or Acquiring Fund, individually
but
are binding only upon the assets and property of Acquired Fund and Acquiring
Fund, respectively.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be deemed to be an original.
MML Series Investment Fund II, on behalf of its MML Small Company Opportunities Fund series
By: /s/ Xxxxx X. XxXxxxxxxx
Name: Xxxxx X. XxXxxxxxxx
Title: President
Attest: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Clerk
MML Series Investment Fund, on behalf of its MML Small Company Opportunities Fund series
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
Attest: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
Massachusetts Mutual Life Insurance Company
By: /s/ Xxx X. Xxxxxxxx
Name: Xxx X. Xxxxxxxx
Title: Vice President
