FORM OF AGREEMENT AND PLAN OF REORGANIZATION
FORM
OF
AGREEMENT
AND PLAN OF REORGANIZATION
This
AGREEMENT AND PLAN OF REORGANIZATION, dated as of February 4, 2010, is
between [name of Merging Fund] (the “Merging Fund”), a
series of the Ultra Series Fund (the “Trust”), and [name of
Acquiring Fund] (the “Acquiring Fund”),
also a series of the Trust.
This
Agreement and Plan of Reorganization (the “Agreement” or “Plan”) is intended to
be and is adopted as a plan of reorganization and liquidation within the meaning
of Section 368(a)(1) of the Internal Revenue Code of 1986, as amended (the
“Code”). The
reorganization and liquidation will consist of the transfer of all of the assets
of the Merging Fund to the Acquiring Fund in exchange for shares of beneficial
interest of the Acquiring Fund, and the distribution of the Acquiring Fund's
shares to the shareholders of the Merging Fund in complete liquidation of the
Merging Fund, as provided herein, all upon the terms and conditions hereinafter
set forth in this Agreement (the “Reorganization”).
In
consideration of the mutual promises contained in this Agreement, the parties
agree as follows:
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1.
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SHAREHOLDER
APPROVAL
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A meeting
of the Merging Fund shareholders shall be called and held for the purpose of
acting on and authorizing the transactions contemplated in this Agreement. The
Acquiring Fund shall furnish to the Merging Fund such data and information as
shall be reasonably requested by the Merging Fund for inclusion in the
information to be furnished to its shareholders in connection with the
meeting.
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2.
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REORGANIZATION
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(a) Plan of
Reorganization.
At the closing as provided for in Section 2(b) hereof (the “Closing”), the
Merging Fund will convey, transfer, and deliver to the Acquiring Fund all of the
then existing assets and property of the Merging Fund, including without
limitation, all cash, securities, commodities and futures interests and
dividends or interests receivable that are owned by the Merging Fund and any
deferred or prepaid expenses shown as an asset on the books of the Merging Fund
as of the valuation time provided for in Section 3(a) of this Agreement (the
“Valuation
Time”). In consideration thereof, the Acquiring Fund agrees at the
Closing to deliver to the Merging Fund, in exchange for the assets, the number
of full and fractional shares of beneficial interest of the Acquiring Fund (the
“Acquiring Fund
Shares”) to be determined as follows:
In
accordance with Section 3 of this Agreement, the number of the Acquiring Fund
Shares to be issued shall be determined by dividing the per share net asset
value of the Merging Fund shares (rounded to the nearest millionth) by the net
asset value per share of the Acquiring Fund (rounded to the nearest millionth)
and multiplying the quotient by the number of outstanding shares of the Merging
Fund as of the Valuation Time. It is expressly agreed that there will
be no sales charge to the Merging Fund, or to any of the shareholders of the
Merging Fund, upon distribution of the Acquiring Fund Shares to
them.
(b) Closing and
Valuation Time of the Reorganization. The Closing shall occur either: (i)
the latest of (x) the satisfaction of all representations and warranties
contained herein, (y) receipt of all necessary regulatory approvals, and (z) the
final adjournment of the meeting of shareholders of the Merging Fund at which
the Plan will be considered, or (ii) such later date as the parties may mutually
agree (the “Closing
Date”). On or as soon as practicable prior to the Closing
Date, the Merging Fund will declare and pay to its shareholders of record one or
more dividends and/or other distributions so that it will have distributed
substantially all (and in no event less than 98%) of its investment company
taxable income (computed without regard to any deduction for dividends paid) and
realized net capital gain, if any, for the current taxable year through the
Closing Date.
3. VALUATION
OF NET ASSETS
(a) The
Valuation Time shall be the close of business (coinciding with the closing of
the regular session of the New York Stock Exchange (“NYSE”) (normally 3:00
p.m. CT)) on the business day immediately preceding the Closing
Date. At this time, the value of the Merging Fund’s assets to be
transferred to the Acquiring Fund under this Agreement shall be computed using
the valuation procedures as set forth in the Merging Fund’s
prospectus.
(b) The
net asset value per share of the Acquiring Fund Shares for purposes of Section 2
of this Agreement shall be determined as of the Valuation Time using the same
valuation procedures as set forth in the Acquiring Fund’s
prospectus.
(c) In
the event that the day on which the Valuation Time is required to occur: (i) the
NYSE shall be closed to trading or trading thereupon shall be restricted, or
(ii) trading or the reporting of trading on the NYSE shall be disrupted so
that, in the
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judgment
of an officer of the Trust, accurate appraisal of the value of the net assets of
the Acquiring Fund or the Merging Fund is impracticable, the Closing Date shall
be postponed until the first business day after the day when trading shall have
been fully resumed and reporting shall have been restored.
4. LIQUIDATION
AND DISSOLUTION
(a) As
soon as practicable after the Closing Date, the Merging Fund will distribute pro
rata to Merging Fund shareholders of record as of the Valuation Time the
Acquiring Fund Shares received by the Merging Fund pursuant to Section 2(a) of
this Agreement. Such liquidation and distribution will be accompanied
by the establishment of shareholder accounts on the share records of the
Acquiring Fund in the names of each such shareholder of the Merging Fund,
representing the respective pro rata number of full and fractional the Acquiring
Fund Shares due to each. No such shareholder accounts shall be
established by the Acquiring Fund or the transfer agent for the Acquiring Fund
except pursuant to written instructions from the Merging Fund, and the Merging
Fund agrees to provide on the Closing Date instructions to transfer to a
shareholder account for each former Merging Fund shareholder a pro rata share of
the number of the Acquiring Fund Shares received pursuant to Section 2(a) of
this Agreement.
(b) Share
certificates representing the Acquiring Fund Shares shall not be issued in
connection with the Reorganization. Ownership of the Acquiring Fund Shares will
be shown on the books of the Acquiring Fund’s transfer agent.
(c) As
promptly as is practicable after the liquidation of the Merging Fund, and in no
event later than 12 months from the date of this Agreement, the Merging Fund
shall be terminated pursuant to the provisions of the Plan and the By-Laws and
Declaration of Trust of the Trust.
(d)
Immediately after the Closing Date, the share transfer books of the Merging Fund
shall be closed and no transfer of shares shall thereafter be made on those
books.
5. REPRESENTATIONS
AND WARRANTIES OF THE ACQUIRING FUND
(a) Organization,
Existence, etc. The Acquiring Fund is a duly organized series
of the Trust, validly existing and in good standing under the laws of the State
of Massachusetts. The Acquiring Fund has the power to carry on the
business of the Acquiring Fund as it is now being conducted. The Acquiring Fund
has all necessary federal, state and local authorization to own all of its
properties and assets and to carry on its business as now being
conducted.
(b) Registration as
Investment Company. The Trust, of which the
Acquiring Fund is a series, is registered under the Investment Company Act of
1940, as amended (the “Act”) as an open-end
management investment company. Its registration has not been revoked
or rescinded and is in full force and effect.
(c) Shares to be
Issued Upon Reorganization. The Acquiring Fund Shares
to be issued in connection with the Reorganization have been duly authorized and
upon consummation of the Reorganization will be validly issued, fully paid and
non-assessable.
(d) Authority
Relative to this Agreement. The Trust has the power to
enter into the Plan on behalf of the Acquiring Fund and to carry out its
obligations under this Agreement. The execution and delivery of the Plan and the
consummation of the transactions contemplated by this Plan have been duly
authorized by the Board of Trustees of the Trust and no other proceedings by the
Trust are necessary to authorize its officers to effectuate the Plan and the
transactions contemplated herein. The Acquiring Fund is not a party to or
obligated under any charter, by-law, indenture, or contract provision or any
other commitment or obligation, or subject to any order or decree, which would
be violated by the execution and carrying out of the Plan.
(e) Registration
Statement. The
Acquiring Fund shall have filed with the Securities and Exchange Commission (the
“Commission”) a
Registration Statement under the Securities Act of 1933, as amended (“Securities Act”)
relating to the Acquiring Fund Shares issuable under this
Agreement. At the time the Registration Statement becomes effective,
the Registration Statement (i) will comply in all material respects with the
provisions of the Securities Act and the rules and regulations of the Commission
thereunder (the “Regulations”), and
(ii) will not contain an untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading.
Further,
at the time the Registration Statement becomes effective, at the time of the
shareholders’ meeting referred to in Section 1, and at the Closing of the
Reorganization, the Prospectus and Statement of Additional Information included
therein, as amended or supplemented by any amendments or supplements filed by
the Acquiring Fund and as pertaining to the Acquiring Fund, will not contain an
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that none of the
representations and warranties in this subsection shall apply to statements in
or omissions from the Registration
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Statement
or Prospectus and Statement of Additional Information made in reliance upon and
in conformity with information furnished by the Merging Fund for use in the
Registration Statement or Prospectus and Statement of Additional
Information.
6. REPRESENTATIONS
AND WARRANTIES OF THE MERGING FUND
(a) Organization,
Existence, etc. The Merging Fund is a duly organized series of
the Trust, validly existing and in good standing under the laws of the State of
Massachusetts, and has power to carry on its business as it is now being
conducted. The Merging Fund has all necessary federal, state and
local authorization to own all of its properties and assets and to carry on its
business as now being conducted.
(b) Registration as
Investment Company. The Trust, of which the
Merging Fund is a series, is registered under the Act as an open-end management
investment company. Its registration has not been revoked or
rescinded and is in full force and effect.
(c) Authority
Relative to this Agreement. The Trust has the power to
enter into the Plan on behalf of its series, the Merging Fund, and to carry out
its obligations under this Agreement. The execution and delivery of the Plan and
the consummation of the transactions contemplated by this Plan have been duly
authorized by the Board of Trustees of the Trust and, except for approval by the
holders of its outstanding shares, no other proceedings by the Trust are
necessary to authorize its officers to effectuate the Plan and the transactions
contemplated herein. The Merging Fund is not a party to or obligated under any
charter, by-law, indenture, or contract provision or any other commitment or
obligation, or subject to any order or decree, which would be violated by the
execution and carrying out of the Plan.
(d) Registration
Statement. The
Merging Fund will cooperate with the Acquiring Fund in connection with the
Registration Statement referred to in Section 5(e) of this Agreement, and will
furnish to the Acquiring Fund the information relating to the Merging Fund
required by the Securities Act and the Regulations promulgated thereunder to be
set forth in the Registration Statement (including the Prospectus and Statement
of Additional Information). At the time the Registration Statement
becomes effective, the Registration Statement, insofar as it relates to the
Merging Fund (i) will comply in all material respects with the provisions of the
Securities Act and the Regulations, and (ii) will not contain an 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. Further, at the time the Registration Statement becomes
effective, at the time of the shareholders’ meeting referred to in Section 1 and
at the Closing of the Reorganization, the Prospectus and Statement of Additional
Information included therein, as amended or supplemented by any amendments or
supplements filed by the Acquiring Fund, insofar as it relates to the Merging
Fund, will not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the representations and warranties in this subsection shall apply only to
statements in or omissions from the Registration Statement or Prospectus and
Statement of Additional Information made in reliance upon and in conformity with
information furnished by the Merging Fund for use in the Registration Statement
or Prospectus and Statement of Additional Information.
7. CONDITIONS
TO OBLIGATIONS OF THE ACQUIRING FUND
The
obligations of the Acquiring Fund under this Agreement with respect to the
consummation of the Reorganization are subject to the satisfaction of the
following conditions:
(a) Representations,
Warranties, and Agreements. As of the Closing of the
Reorganization, the Merging Fund shall have complied with each of its
obligations under this Agreement, the representations and warranties contained
in this Agreement shall be true in all material respects, and there shall have
been no material adverse change in the financial condition, results of
operations, business, properties or assets of the Merging Fund since December
31, 2009.
(b) Regulatory
Approval. All
necessary orders of exemption under the Act with respect to the transactions
contemplated by this Agreement shall have been granted by the Commission, and
all approvals, registrations, and exemptions under federal and state securities
laws considered to be necessary shall have been obtained.
(c) Tax
Opinion. The
Acquiring Fund shall have received the opinion of counsel, addressed to and in
form and substance satisfactory to the Acquiring Fund, as to certain of the
federal income tax consequences of the Reorganization under the Code to the
Acquiring Fund and the shareholders of the Acquiring Fund. For purposes of
rendering its opinion, counsel may rely exclusively and without independent
verification, as to factual matters, on the statements made in the Plan, the
proxy statement which will be distributed to the shareholders of the Merging
Fund in connection with the Reorganization, and on such other written
representations as the Merging Fund and the Acquiring Fund will have verified as
of the date of issuance of the tax opinion. The opinion of counsel will be to
the effect that, based on the facts and assumptions stated therein, for federal
income tax purposes:
(i) neither
the Merging Fund nor the Acquiring Fund will recognize any gain or loss upon the
transfer of the assets of the Merging Fund to the Acquiring Fund in exchange for
the Acquiring Fund Shares and
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upon the
distribution (whether actual or constructive) of the Acquiring Fund Shares to
the shareholders of the Merging Fund in exchange for their shares of the Merging
Fund;
(ii) the
shareholders of the Merging Fund who receive the Acquiring Fund Shares pursuant
to the Reorganization will not recognize any gain or loss upon the exchange
(whether actual or constructive) of their shares of the Merging Fund for the
Acquiring Fund Shares (including any fractional shares they are deemed to have
received) pursuant to the Reorganization;
(iii) the
basis of the Acquiring Fund Shares received by the Merging Fund’s shareholders
will be the same as the basis of the shares of the Merging Fund surrendered in
the exchange, and the holding period of the Acquiring Fund Shares received by
each shareholder of the Merging Fund will include the period during which the
shares of the Merging Fund exchanged therefor were held by such shareholder,
provided the shares of the Merging Fund were held as a capital asset on the date
of the Reorganization; and
(iv) the
basis of the Merging Fund’s assets acquired by the Acquiring Fund will be the
same as the basis of such assets to the Merging Fund immediately prior to the
Reorganization, and the holding period of the assets of the Merging Fund in the
hands of the Acquiring Fund will include the period during which those assets
were held by the Merging Fund.
8. CONDITIONS
TO OBLIGATIONS OF THE MERGING FUND
The
obligations of the Merging Fund under this Agreement with respect to the
consummation of the Reorganization are subject to the satisfaction of the
following conditions:
(a) Shareholder
Approval. The
Plan shall have been approved by the affirmative vote of a majority of the
outstanding voting securities of the Merging Fund as required by the Act. This
means that the Plan must be approved by the lesser of: (i) 67% of the shares of
the Merging Fund entitled to vote and present at a meeting if the holders of
more than 50% of the outstanding shares entitled to vote are present in person
or by proxy; or (ii) more than 50% of the outstanding shares of the Merging
Fund entitled to vote.
(b) Representations,
Warranties and, Agreements. As of the Closing of the
Reorganization, the Acquiring Fund shall have complied with each of its
responsibilities under this Agreement, the representations and warranties
contained in this Agreement shall be true in all material respects, and there
shall have been no material adverse change in the financial condition, results
of operations, business, properties, or assets of the Acquiring Fund since
December 31, 2009.
(c) Regulatory
Approval. The
Registration Statement shall have been declared effective by the Commission and
no stop orders under the Securities Act pertaining thereto shall have been
issued; all necessary orders of exemption under the Act with respect to the
transactions contemplated by this Agreement shall have been granted by the
Commission; and all approvals, registrations, and exemptions under federal and
state securities laws considered to be necessary shall have been
obtained.
(d) Tax
Opinion. The
Merging Fund shall have received the opinion of counsel, addressed to and in
form and substance satisfactory to the Merging Fund, as to certain of the
federal income tax consequences of the Reorganization under the Code to the
Merging Fund and its shareholders. For purposes of rendering its opinion,
counsel may rely exclusively and without independent verification, as to factual
matters, on the statements made in the Plan, the proxy statement which will be
distributed to the shareholders of the Merging Fund in connection with the
Reorganization, and on such other written representations as the Merging Fund
and the Acquiring Fund will have verified as of the date of issuance of the tax
opinion. The opinion of counsel will be to the effect that, based on the facts
and assumptions stated therein, for federal income tax purposes:
(i)
neither the Merging Fund nor the Acquiring Fund will recognize any gain or loss
upon the transfer of the assets of the Merging Fund to the Acquiring Fund in
exchange for the Acquiring Fund Shares and upon the distribution (whether actual
or constructive) of the Acquiring Fund Shares to the shareholders of the Merging
Fund in exchange for their shares of the Merging Fund;
(ii) the
shareholders of the Merging Fund who receive the Acquiring Fund Shares pursuant
to the Reorganization will not recognize any gain or loss upon the exchange
(whether actual or constructive) of their shares of the Merging Fund for the
Acquiring Fund Shares (including any fractional shares they are deemed to have
received) pursuant to the Reorganization;
(iii) the
basis of the Acquiring Fund Shares received by the Merging Fund’s shareholders
will be the same as the basis of the shares of the Merging Fund surrendered in
the exchange, and the holding period of the Acquiring Fund Shares received by
each shareholder of the Merging Fund will include the period
during
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which the
shares of the Merging Fund exchanged therefor were held by such shareholder,
provided the shares of the Merging Fund were held as a capital asset on the date
of the Reorganization; and
(iv) the
basis of the Merging Fund assets acquired by the Acquiring Fund will be the same
as the basis of such assets to the Merging Fund immediately prior to the
Reorganization, and the holding period of the assets of the Merging Fund in the
hands of the Acquiring Fund will include the period during which those assets
were held by the Merging Fund.
9. AMENDMENTS,
TERMINATIONS, NON-SURVIVAL OF COVENANTS, WARRANTIES AND
REPRESENTATIONS
(a) The
parties hereto may, by agreement in writing authorized by the Board of Trustees
of the Trust, amend the Plan at any time before or after approval of the Plan by
shareholders of the Merging Fund, but after such approval, no amendment shall be
made that materially changes the terms of this Agreement.
(b) At
any time prior to the Closing of the Reorganization, any of the parties may by
written instrument signed by it: (i) waive any inaccuracies in the
representations and warranties made pursuant to this Agreement, and (ii) waive
compliance with any of the covenants or conditions made for its benefit pursuant
to this Agreement.
(c) The
Merging Fund may terminate the Plan at any time prior to the Closing of the
Reorganization by notice to the Acquiring Fund if: (i) a material condition to
its performance under this Agreement or a material covenant of the Acquiring
Fund contained in this Agreement is not fulfilled on or before the date
specified for the fulfillment thereof, or (ii) a material default or material
breach of the Plan is made by the Acquiring Fund.
(d)
the Acquiring Fund may terminate the Plan at any time prior to the Closing of
the Reorganization by notice to the Merging Fund if: (i) a material condition to
its performance under this Agreement or a material covenant of the Merging Fund
contained in this Agreement is not fulfilled on or before the date specified for
the fulfillment thereof, or (ii) a material default or material breach of the
Plan is made by the Merging Fund.
(e) The
Plan may be terminated by either party at any time prior to the Closing of the
Reorganization, whether before or after approval by the shareholders of the
Merging Fund, without liability on the part of either party hereto or its
respective trustees, officers, or shareholders.
(f) No
representations, warranties, or covenants in or pursuant to the Plan shall
survive the Reorganization.
10. EXPENSES
All
direct fees and expenses, including legal and accounting expenses, portfolio
transfer taxes (if any) or other similar expenses incurred in connection with
the consummation by the Merging Fund and Acquiring Fund of the transactions
contemplated by this Agreement (together with the costs specified below, “Expenses”) will be
borne by Madison Investment Advisers, LLC and/or its affiliates, including the
costs of liquidating such of Merging Fund’s portfolio securities as the
Acquiring Fund shall indicate it does not wish to acquire before the Closing;
and provided that such Expenses will in any event be paid by the party directly
incurring such Expenses if and to the extent that the payment by the other party
of such Expenses would result in the disqualification of Acquiring Fund or
Merging Fund, as the case may be, as a “regulated investment company” within the
meaning of Section 851 of the Code.
11. GENERAL
This Plan
supersedes all prior agreements between the parties (written or oral), is
intended as a complete and exclusive statement of the terms of the Plan between
the parties and may not be changed or terminated orally. The Plan may be
executed in one or more counterparts, all of which shall be considered one and
the same agreement, and shall become effective when one or more counterparts
have been executed by each party and delivered to the parties hereto. The
headings contained in the Plan are for reference purposes only and shall not
affect in any way the meaning or interpretation of the Plan. Nothing in the
Plan, expressed or implied, is intended to confer upon any other person any
rights or remedies by reason of the Plan.
12. NON-LIABILITY
OF SHAREHOLDERS, TRUSTEES, ETC.
In
accordance with the Declaration of Trust of the Trust, this Plan is executed on
behalf of the Trust, the Merging Fund and the Acquiring Fund, by the trustees or
by an officer or officers of the Trust in their capacity as such and not
individually, and the obligations hereunder are not personally binding upon, nor
shall resort be had to the private property of, any of the trustees,
shareholders, officers, employees or agents of the Trust, but the property of
the Trust or a specific portion thereof only shall be bound.
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IN WITNESS WHEREOF, the Trust
has caused this Plan to be executed on behalf of the Merging Fund and the
Acquiring Fund as of the day and year first above written.
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on
behalf of [NAME OF MERGING FUND]
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By: _______________________
Name: Xxxxxxxxx
X. Xxxxx
Title: President
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on
behalf of [NAME OF ACQUIRING FUND]
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By: _______________________
Name: Xxxxxxxxx
X. Xxxxx
Title: President
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