Exhibit (4)
MAINSTAY VP SERIES FUND, INC.
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is adopted as
of this 17th day of August, 2007, by MainStay VP Series Fund, Inc., a Maryland
corporation (the "Company"), on behalf of MainStay VP Income & Growth Portfolio
("Acquired Portfolio") and MainStay VP ICAP Select Equity Portfolio ("Acquiring
Portfolio"), each a separate series of the Company.
WHEREAS, the Company is an open-end, management investment company
registered pursuant to the Investment Company Act of 1940 ("1940 Act").
WHEREAS, the Acquired Portfolio owns securities which generally are assets
of the character in which the Acquiring Portfolio is permitted to invest;
WHEREAS, this Agreement is intended to be, and is adopted as, a plan of
reorganization and liquidation described in Section 368(a)(1) of the U.S.
Internal Revenue Code of 1986, as amended (the "Code").
WHEREAS, the contemplated reorganization and liquidation will consist of
the (1) transfer of all of the assets of the Acquired Portfolio to the Acquiring
Portfolio in exchange solely for shares of the Initial Class and Service Class
of the Acquiring Portfolio (the "Acquiring Portfolio Shares"), (2) the
assumption by the Acquiring Portfolio of all of the liabilities of the Acquired
Portfolio, and (3) the distribution of the Acquiring Portfolio Shares to the
shareholders of the Acquired Portfolio in complete liquidation of the Acquired
Portfolio, as provided herein (the "Reorganization"), all upon the terms and
conditions hereinafter set forth in this Agreement.
WHEREAS, the Directors of the Company (the "Board of Directors") have
determined, with respect to the Acquiring Portfolio, that the exchange of all of
the assets of the Acquired Portfolio for Acquiring Portfolio Shares and the
assumption of the liabilities of the Acquired Portfolio by the Acquiring
Portfolio is in the best interests of the Acquiring Portfolio and its
shareholders and that the interests of the existing shareholders of the
Acquiring Portfolio would not be diluted as a result of this transaction; and
WHEREAS, the Board of Directors has determined, with respect to the
Acquired Portfolio, that the exchange of all of the assets of the Acquired
Portfolio for Acquiring Portfolio Shares, and the assumption of all liabilities
of the Acquired Portfolio by the Acquiring Portfolio is in the best interests of
the Acquired Portfolio and its shareholders and that the interests of the
existing shareholders of the Acquired Portfolio would not be diluted as a result
of this transaction.
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter set forth, the Company, on behalf of the Acquiring
Portfolio and the Acquired Portfolio separately, hereby covenants and agrees as
follows:
1. TRANSFER OF ASSETS OF THE ACQUIRED PORTFOLIO TO THE ACQUIRING PORTFOLIO
IN EXCHANGE FOR THE ACQUIRING PORTFOLIO SHARES, THE ASSUMPTION OF ACQUIRED
PORTFOLIO LIABILITIES, AND THE LIQUIDATION OF THE ACQUIRED PORTFOLIO
1.1. Subject to the terms and conditions herein set forth and on the basis
of the representations and warranties contained herein, the Company will
transfer all of the Acquired Portfolio's assets, as set forth in paragraph 1.2,
to the Acquiring Portfolio, and the Acquiring Portfolio agrees in exchange
therefore: (i) to deliver to the Acquired Portfolio the number of full and
fractional Initial Class and Service Class Acquiring Portfolio Shares determined
by dividing the value of the Acquired Portfolio's net assets with respect to
each class, computed in the manner and as of the time and date set forth in
paragraph 2.1, by the net asset value of one Acquiring Portfolio Share of the
same class, computed in the manner and as of the time and date set forth in
paragraph 2.2; and (ii) to assume all liabilities of the Acquired Portfolio, as
set forth in paragraph 1.3. Such transactions shall take place at the closing
provided for in paragraph 3.1 (the "Closing").
1.2. The assets of the Acquired Portfolio to be acquired by the Acquiring
Portfolio shall consist of all assets and property, including, without
limitation, all cash, securities, commodities and futures interests and
dividends or interests receivable that are owned by the Acquired Portfolio and
any deferred or prepaid expenses shown as an asset on the books of the Acquired
Portfolio on the closing date provided for in paragraph 3.1 (the "Closing Date")
(collectively, "Assets").
1.3. The Acquired Portfolio will endeavor to discharge all of its known
liabilities and obligations prior to the Closing Date. The Acquiring Portfolio
shall assume all of the liabilities of the Acquired Portfolio, whether accrued
or contingent, known or unknown, existing at the Valuation Date (as defined in
Section 2.1). On or as soon as practicable prior to the Closing Date, the
Acquired Portfolio will declare and pay to its shareholders of record one or
more dividends and/or other distributions in an amount large enough so that it
will have distributed substantially all (and in any event not 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.
1.4. Immediately after the transfer of assets provided for in paragraph
1.1, the Acquired Portfolio will (i) distribute to the Acquired Portfolio's
shareholders of record with respect to Initial Class and Service Class shares,
determined as of immediately after the close of business on the Closing Date, on
a pro rata basis within that class, the Acquiring Portfolio Shares of the same
class received by the Acquired Portfolio pursuant to paragraph 1.1; and (ii)
completely liquidate. Such distribution and liquidation will be accomplished,
with respect to each class of the Acquired Portfolio Shares, by the transfer of
the Acquiring Portfolio Shares then credited to the account of the Acquired
Portfolio on the books of the Acquiring Portfolio to open accounts on the share
records of the Acquiring Portfolio in the names of the Acquired Portfolio
shareholders ("Acquired Portfolio Shareholders") of the same class. The
aggregate net asset value of the Acquiring Portfolio Shares to be so credited to
Acquired Portfolio Shareholders shall, with respect to each class, be equal to
the aggregate net asset value of the Acquired
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Portfolio shares of that same class owned by such shareholders on the Closing
Date. All issued and outstanding Acquired Portfolio Shares will simultaneously
be canceled on the books of the Acquired Portfolio. The Acquiring Portfolio
shall not issue certificates representing the Acquiring Portfolio Shares in
connection with the Reorganization.
1.5. Ownership of Acquiring Portfolio Shares will be shown on the books of
the Acquiring Portfolio. Shares of the Acquiring Portfolio will be issued in the
manner described in the Acquiring Portfolio's current prospectus.
1.6. Any reporting responsibility of the Acquired Portfolio including, but
not limited to, the responsibility for filing of regulatory reports, tax
returns, or other documents with the U.S. Securities and Exchange Commission
(the "Commission"), any state securities commission, and any federal, state or
local tax authorities or any other relevant regulatory authority, is and shall
remain the Acquired Portfolio's responsibility up to and including the Closing
Date.
2. VALUATION
2.1. The value of the Assets shall be determined after the declaration of
any dividends on the Closing Date as of the time for determining the Acquired
Portfolio's net asset value per share as disclosed in the then-current
prospectus and statement of additional information with respect to the Acquiring
Portfolio using valuation procedures established by the Company's Board of
Directors (such time and date being hereinafter called the "Valuation Date").
2.2. The net asset value of an Acquiring Portfolio Share shall be the net
asset value per share computed as of the time for determining the Acquiring
Portfolio's net asset value per share on the Closing Date in the manner
disclosed in the Acquiring Portfolio's then-current prospectus and statement of
additional information using valuation procedures established by the Company's
Board of Directors.
2.3. The number of the Acquiring Portfolio Shares to be issued (including
fractional shares, if any) in exchange for the Acquired Portfolio's assets shall
be determined with respect to each class by dividing the value of the net assets
attributable to each class of shares of the Acquired Portfolio, determined using
the same valuation procedures referred to in paragraph 2.1, by the net asset
value of an Acquiring Portfolio Share of the same class, determined in
accordance with paragraph 2.2.
2.4. All computations of value shall be made by New York Life Investment
Management LLC and shall be subject to review by the designated valuation
committee and by each Portfolio's respective independent accountants.
3. CLOSING AND CLOSING DATE
3.1. The Closing Date shall be August 17, 2007, or such other date as the
parties may agree. All acts taking place at the Closing shall be deemed to take
place simultaneously as of immediately after the close of business on the
Closing Date unless otherwise agreed to by the parties. The "close of business"
on the Closing Date shall be as of the closing time of the New
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York Stock Exchange ("NYSE") (usually 4:00 p.m., Eastern time). The Closing
shall be held at the offices of the Company or at such other time and/or place
as the parties may agree.
3.2. The Acquired Portfolio shall direct State Street Bank and Trust
Company, as custodian for the Acquired Portfolio (the "Custodian"), to deliver,
at the Closing, a certificate of an authorized officer stating that (i) the
Assets of the Acquired Portfolio have been delivered in proper form to the
Acquiring Portfolio within two business days prior to or on the Closing Date,
and (ii) all necessary taxes in connection with the delivery of the Assets,
including all applicable federal and state stock transfer stamps, if any, have
been paid or provision for payment has been made. The Acquired Portfolio's
portfolio securities represented by a certificate or other written instrument
shall be transferred and delivered by the Acquired Portfolio as of the Closing
Date for the account of the Acquiring Portfolio duly endorsed in proper form for
transfer in such condition as to constitute good delivery thereof. The Custodian
shall deliver as of the Closing Date by book entry, in accordance with the
customary practices of the Custodian and any securities depository (as defined
in Rule 17f-4 under the 0000 Xxx) in which the Acquired Portfolio's Assets are
deposited, the Acquired Portfolio's portfolio securities and instruments
deposited with such depositories. The cash to be transferred by the Acquired
Portfolio shall be delivered by wire transfer of federal funds on the Closing
Date.
3.3. The Acquired Portfolio shall direct New York Life Insurance and
Annuity Corporation ("NYLIAC"), in its capacity as agent for the Acquired
Portfolio, to deliver at the Closing a certificate of an authorized officer
stating that its records contain the names and addresses of the Acquired
Portfolio Shareholders and the number and percentage ownership of outstanding
shares of each class owned by each such shareholder immediately prior to the
Closing.
3.4. In the event that on the Valuation Date (a) the NYSE or another
primary trading market for portfolio securities of the Acquiring Portfolio or
the Acquired Portfolio shall be closed to trading or trading thereupon shall be
restricted, or (b) trading or the reporting of trading on such exchange or
elsewhere shall be disrupted so that, in the judgment of the Board of Directors,
an accurate appraisal of the value of the net assets of the Acquiring Portfolio
or the Acquired Portfolio 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. REPRESENTATIONS AND WARRANTIES
4.1. Except as has been fully disclosed to the Acquiring Portfolio in a
written instrument executed by an officer of the Company, the Company, on behalf
of the Acquired Portfolio, represents and warrants to the Acquiring Portfolio as
follows:
(a) The Acquired Portfolio is duly organized as a series of the
Company, which is a corporation duly organized, validly existing and in
good standing under the laws of the State of Maryland, with power to own
all of its properties and assets and to carry on its business as
contemplated by this Agreement.
(b) The Company is an open-end investment management company, and its
registration with the Commission as an investment company under the 1940
Act, and the registration of
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shares of the Acquired Portfolio under the Securities Act of 1933 ("1933
Act"), is in full force and effect.
(c) No consent, approval, authorization, or order of any court or
governmental authority is required for the consummation by the Acquired
Portfolio of the transactions contemplated herein, except such as may be
required under the state and federal securities laws, including the 1933
Act, the 1934 Act and the 1940 Act.
(d) Except as otherwise disclosed to and accepted by the Company, on
behalf of the Acquiring Portfolio, the current prospectus and statement of
additional information of the Acquired Portfolio and each prospectus and
statement of additional information of the Acquired Portfolio used during
the three years previous to the date of this Agreement conforms or
conformed at the time of its use in all material respects to the applicable
requirements of the 1933 Act and the 1940 Act and the rules and regulations
of the Commission thereunder and does not or did not at the time of its use
include any untrue statement of a material fact or omit to state any
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 materially misleading.
(e) On the Closing Date, the Company, on behalf of the Acquired
Portfolio, will have good and marketable title to the Assets and full
right, power, and authority to sell, assign, transfer and deliver such
Assets hereunder free of any liens or other encumbrances, and upon delivery
and payment for such Assets, the Acquiring Portfolio will acquire good and
marketable title thereto, subject to no restrictions on the full transfer
thereof, including such restrictions as might arise under the 1933 Act,
other than as disclosed to the Acquiring Portfolio.
(f) The Acquired Portfolio is not engaged currently, and the
execution, delivery and performance of this Agreement will not result, in
(i) a material violation of the Company's Articles of Incorporation or
By-Laws or of any agreement, indenture, instrument, contract, lease or
other undertaking to which the Company, on behalf of the Acquired
Portfolio, is a party or by which it is bound, or (ii) the acceleration of
any obligation, or the imposition of any penalty, under any agreement,
indenture, instrument, contract, lease, judgment or decree to which the
Company, on behalf of the Acquired Portfolio, is a party or by which it is
bound.
(g) All material contracts or other commitments of the Acquired
Portfolio (other than this Agreement and certain investment contracts) will
terminate without liability to the Acquired Portfolio prior to the Closing
Date.
(h) Except as otherwise disclosed in writing to and accepted by the
Company, on behalf of the Acquiring Portfolio, no litigation or
administrative proceeding or investigation of or before any court or
governmental body is presently pending or, to its knowledge, threatened
against the Acquired Portfolio or any of its properties or assets that, if
adversely determined, would materially and adversely affect its financial
condition or the conduct of its business. The Company, on behalf of the
Acquired Portfolio, knows of no facts which might form the basis for the
institution of such proceedings and is not a party to or subject to the
provisions of any order, decree or judgment of any court or governmental
body which materially and
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adversely affects its business or its ability to consummate the
transactions herein contemplated.
(i) The Statement of Assets and Liabilities, Statements of Operations
and Changes in Net Assets, and Schedule of Investments of the Acquired
Portfolio dated December 31, 2006, have been audited by
PricewaterhouseCoopers LLP, independent auditors, and are in accordance
with generally accepted accounting principles in the United States ("GAAP")
consistently applied, and such statements present fairly, in all material
respects, the financial condition of the Acquired Portfolio as of such date
in accordance with GAAP, and there are no known contingent liabilities of
the Acquired Portfolio required to be reflected on a balance sheet
(including the notes thereto) in accordance with GAAP as of such date not
disclosed therein.
(j) Since December 31, 2006, there has not been any material adverse
change in the Acquired Portfolio's financial condition, assets, liabilities
or business, other than changes occurring in the ordinary course of
business, or any incurrence by the Acquired Portfolio of indebtedness
maturing more than one year from the date such indebtedness was incurred,
except as otherwise disclosed to and accepted by the Acquiring Portfolio.
For the purposes of this subparagraph (j), a decline in net asset value per
share of the Acquired Portfolio due to declines in market values of
securities in the Acquired Portfolio's portfolio, the discharge of Acquired
Portfolio liabilities, or the redemption of Acquired Portfolio Shares by
shareholders of the Acquired Portfolio shall not constitute a material
adverse change.
(k) On the Closing Date, all federal and other tax returns and reports
of the Acquired Portfolio required by law to have been filed by such date
(including any extensions) shall have been filed and are or will be correct
in all material respects, and all federal and other taxes shown as due or
required to be shown as due on said returns and reports shall have been
paid or provision shall have been made for the payment thereof, and to the
best of the Acquired Portfolio's knowledge, no such returns are currently
under audit and no assessment has been asserted with respect to such
returns.
(l) For each taxable year of its operation (including the taxable year
ending on the Closing Date), the Acquired Portfolio has met (or will meet)
the requirements of Subchapter M of the Code for qualification as a
regulated investment company, has been (or will be) eligible to and has
computed (or will compute) its federal income tax under Section 852 of the
Code, will have distributed all of its investment company taxable income
and net capital gain (as defined in the Code) that has accrued through the
Closing Date, before the Closing Date will have declared dividends
sufficient to distribute all of its investment company taxable income and
net capital gain for the period ending on the Closing Date, and has met the
diversification and other requirements of Section 817(h) of the Code and
Treasury Regulation section 1.817-5 thereunder.
(m) All issued and outstanding shares of the Acquired Portfolio are,
and on the Closing Date will be, legally issued and outstanding, fully paid
and non-assessable by the Company and will have been offered and sold in
every state and the District of Columbia in compliance in all material
respects with applicable registration requirements of all applicable
federal and
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state securities laws. All of the issued and outstanding shares of the
Acquired Portfolio will, at the time of Closing, be held by the persons and
in the amounts set forth in the records of NYLIAC, on behalf of the
Acquired Portfolio, as provided in paragraph 3.3. The Acquired Portfolio
does not have outstanding any options, warrants or other rights to
subscribe for or purchase any of the Acquired Portfolio Shares, nor is
there outstanding any security convertible into any of the Acquired
Portfolio shares.
(n) The execution, delivery and performance of this Agreement will
have been duly authorized prior to the Closing Date by all necessary
action, if any, on the part of the Board of Directors, on behalf of the
Acquired Portfolio, and this Agreement will constitute a valid and binding
obligation of the Acquired Portfolio, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights and to general equity principles.
(o) The information to be furnished by the Acquired Portfolio for use
in registration statements and other documents filed or to be filed with
any federal, state or local regulatory authority (including the National
Association of Securities Dealers, Inc.), which may be necessary in
connection with the transactions contemplated hereby, shall be accurate and
complete in all material respects and shall comply in all material respects
with Federal securities and other laws and regulations thereunder
applicable thereto.
(p) The combined proxy statement and prospectus ("Proxy Statement") to
be included in the Registration Statement referred to in paragraph 5.6,
insofar as it relates to the Acquired Portfolio, will, on the effective
date of the Registration Statement on Form N-14 ("Registration Statement")
and on the Closing Date (i) 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, in light of the circumstances
under which such statements were made, not materially misleading, provided,
however, that the representations and warranties of this subparagraph (p)
shall not apply to statements in or omissions from the Proxy Statement and
the Registration Statement made in reliance upon and in conformity with
information that was furnished by the Acquiring Portfolio for use therein,
and (ii) comply in all material respects with the provisions of the 1933
Act, the 1934 Act, and the 1940 Act and the rules and regulations
thereunder.
4.2. Except as has been fully disclosed to the Acquired Portfolio in a
written instrument executed by an officer of the Company, the Company, on behalf
of the Acquiring Portfolio, represents and warrants to the Acquired Portfolio as
follows:
(a) The Acquiring Portfolio is duly organized as a series of the
Company, which is a corporation duly organized, validly existing and in
good standing under the laws of the State of Maryland, with power under the
Company's Articles of Incorporation to own all of its properties and assets
and to carry on its business as contemplated by this Agreement.
(b) The Company is a registered open-end investment company and its
registration with the Commission as an investment company under the 1940
Act and the registration of the shares of the Acquired Portfolio under the
1933 Act, is in full force and effect.
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(c) No consent, approval, authorization, or order of any court or
governmental authority is required for the consummation by the Acquiring
Portfolio of the transactions contemplated herein, except such as may be
required under the state and federal securities laws, including the 1933
Act, the 1934 Act and the 1940 Act.
(d) Except as otherwise disclosed to and accepted by the Company, on
behalf of the Acquired Portfolio, the current prospectus and statement of
additional information of the Acquiring Portfolio and each prospectus and
statement of additional information of the Acquiring Portfolio used during
the three years previous to the date of this Agreement conforms or
conformed at the time of its use in all material respects to the applicable
requirements of the 1933 Act and the 1940 Act and the rules and regulations
of the Commission thereunder and does not or did not at the time of its use
include any untrue statement of a material fact or omit to state any
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 materially misleading.
(e) On the Closing Date, the Company, on behalf of the Acquiring
Portfolio, will have good and marketable title to the Acquiring Portfolio's
assets, free of any liens or other encumbrances, except those liens or
encumbrances as to which the Acquired Portfolio has received notice and
necessary documentation at or prior to the Closing.
(f) The Acquiring Portfolio is not engaged currently, and the
execution, delivery and performance of this Agreement will not result, in
(i) a material violation of the Company's Articles of Incorporation or
By-Laws or of any agreement, indenture, instrument, contract, lease or
other undertaking to which the Company, on behalf of the Acquiring
Portfolio, is a party or by which it is bound, or (ii) the acceleration of
any material obligation, or the imposition of any penalty, under any
agreement, indenture, instrument, contract, lease, judgment or decree to
which the Company, on behalf of the Acquiring Portfolio, is a party or by
which it is bound.
(g) Except as otherwise disclosed in writing to and accepted by the
Company, on behalf of the Acquired Portfolio, no litigation or
administrative proceeding or investigation of or before any court or
governmental body is presently pending or, to its knowledge, threatened
against the Company, on behalf of the Acquiring Portfolio, or any of the
Acquiring Portfolio's properties or assets that, if adversely determined,
would materially and adversely affect the Acquiring Portfolio's financial
condition or the conduct of the Acquiring Portfolio's business. The
Company, on behalf of the Acquiring Portfolio, knows of no facts which
might form the basis for the institution of such proceedings and is not a
party to or subject to the provisions of any order, decree or judgment of
any court or governmental body which materially and adversely affects its
business or its ability to consummate the transactions herein contemplated.
(h) The Statement of Assets and Liabilities, Statements of Operations
and Changes in Net Assets and Schedule of Investments of the Acquiring
Portfolio at December 31, 2006, have been audited by PricewaterhouseCoopers
LLP, independent auditors, and are in accordance
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with GAAP consistently applied, and such statements present fairly, in all
material respects, the financial condition of the Acquiring Portfolio as of
such date in accordance with GAAP, and there are no known contingent
liabilities of the Acquiring Portfolio required to be reflected on a
balance sheet (including the notes thereto) in accordance with GAAP as of
such date not disclosed therein.
(i) Since December 31, 2006, there has not been any material adverse
change in the Acquiring Portfolio's financial condition, assets,
liabilities or business, other than changes occurring in the ordinary
course of business, or any incurrence by the Acquiring Portfolio of
indebtedness maturing more than one year from the date such indebtedness
was incurred, except as otherwise disclosed to and accepted by the Acquired
Portfolio. For purposes of this subparagraph (i), a decline in net asset
value per share of the Acquiring Portfolio due to declines in market values
of securities in the Acquiring Portfolio's portfolio, the discharge of
Acquiring Portfolio liabilities, or the redemption of Acquiring Portfolio
Shares by shareholders of the Acquiring Portfolio, shall not constitute a
material adverse change.
(j) On the Closing Date, all federal and other tax returns and reports
of the Acquiring Portfolio required by law to have been filed by such date
(including any extensions) shall have been filed and are or will be correct
in all material respects, and all federal and other taxes shown as due or
required to be shown as due on said returns and reports shall have been
paid or provision shall have been made for the payment thereof, and to the
best of the Acquiring Portfolio's knowledge no such return is currently
under audit and no assessment has been asserted with respect to such
returns.
(k) For each taxable year of its operation (including the taxable year
that includes the Closing Date), the Acquiring Portfolio has met (or will
meet) the requirements of Subchapter M of the Code for qualification as a
regulated investment company, has been eligible to (or will be eligible to)
and has computed (or will compute) its federal income tax under Section 852
of the Code, has distributed all of its investment company taxable income
and net capital gain (as defined in the Code) for periods ending prior to
the Closing Date, and has met the diversification and other requirements of
Section 817(h) of the Code and Treasury Regulation section 1.817-5
thereunder.
(l) All issued and outstanding shares of the Acquiring Portfolio are,
and on the Closing Date will be, legally issued and outstanding, fully paid
and non-assessable by the Company and will have been offered and sold in
every state and the District of Columbia in compliance in all material
respects with applicable registration requirements of all applicable
federal and state securities laws. The Acquiring Portfolio does not have
outstanding any options, warrants or other rights to subscribe for or
purchase any Acquiring Portfolio Shares, nor is there outstanding any
security convertible into any Acquiring Portfolio Shares.
(m) The execution, delivery and performance of this Agreement will
have been fully authorized prior to the Closing Date by all necessary
action, if any, on the part of the Board of Directors, on behalf of the
Acquiring Portfolio, and this Agreement will constitute a valid and binding
obligation of the Acquiring Portfolio, enforceable in accordance with its
terms,
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subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights and to
general equity principles.
(n) The Acquiring Portfolio Shares to be issued and delivered to the
Acquired Portfolio, for the account of the Acquired Portfolio Shareholders,
pursuant to the terms of this Agreement, will on the Closing Date have been
duly authorized and, when so issued and delivered, will be legally issued
Acquiring Portfolio Shares, and will be fully paid and non-assessable by
the Company.
(o) The information to be furnished by the Company for use in the
registration statements, and other documents that may be necessary in
connection with the transactions contemplated hereby shall be accurate and
complete in all material respects and shall comply in all material respects
with Federal securities and other laws and regulations applicable thereto.
(p) The Proxy Statement to be included in the Registration Statement
(and any amendment or supplement thereto), insofar as it relates to the
Acquiring Portfolio and the Acquiring Portfolio Shares, will, from the
effective date of the Registration Statement through the date of the
meeting of shareholders of the Acquired Portfolio contemplated therein and
on the Closing Date (i) 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, in light of the circumstances under which
such statements were made, not materially misleading, provided, however,
that the representations and warranties of this subparagraph (p) shall not
apply to statements in or omissions from the Proxy Statement and the
Registration Statement made in reliance upon and in conformity with
information that was furnished by the Acquired Portfolio for use therein,
and (ii) comply in all material respects with the provisions of the 1933
Act, the 1934 Act, and the 1940 Act and the rules and regulations
thereunder.
5. COVENANTS OF THE ACQUIRING PORTFOLIO AND THE ACQUIRED PORTFOLIO
5.1. The Acquiring Portfolio and the Acquired Portfolio each will operate
its business in the ordinary course between the date hereof and the Closing
Date, it being understood that such ordinary course of business will include the
declaration and payment of customary dividends and distributions, and any other
distribution that may be advisable.
5.2. The Acquired Portfolio will call a meeting of the shareholders of the
Acquired Portfolio to consider and act upon this Agreement and to take all other
action necessary to obtain approval of the transactions contemplated herein.
5.3. The Acquired Portfolio covenants that the Acquiring Portfolio Shares
to be issued hereunder are not being acquired for the purpose of making any
distribution thereof, other than in accordance with the terms of this Agreement.
5.4. The Acquired Portfolio will assist the Acquiring Portfolio in
obtaining such information as the Acquiring Portfolio reasonably requests
concerning the beneficial ownership of the Acquired Portfolio shares.
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5.5. Subject to the provisions of this Agreement, the Acquiring Portfolio
and the Acquired Portfolio will each take, or cause to be taken, all action, and
do or cause to be done, all things reasonably necessary, proper or advisable to
consummate and make effective the transactions contemplated by this Agreement.
5.6. The Acquired Portfolio will provide the Acquiring Portfolio with
information reasonably necessary for the preparation of the Proxy Statement
(referred to in paragraph 4.1(p)) to be included in the Registration Statement,
in compliance with the 1933 Act, the 1934 Act, and the 1940 Act, in connection
with the meeting of the shareholders of the Acquired Portfolio to consider
approval of this Agreement and the transactions contemplated herein.
5.7. As soon as is reasonably practicable after the Closing, the Acquired
Portfolio will make a liquidating distribution to its shareholders consisting of
the Acquiring Portfolio Shares received at the Closing.
5.8. The Acquiring Portfolio and the Acquired Portfolio shall each use its
reasonable best efforts to fulfill or obtain the fulfillment of the conditions
precedent to effect the transactions contemplated by this Agreement as promptly
as practicable.
5.9. The Company, on behalf of the Acquired Portfolio, covenants that the
Company will, from time to time, as and when reasonably requested by the
Acquiring Portfolio, execute and deliver or cause to be executed and delivered
all such assignments and other instruments, and will take or cause to be taken
such further action as the Acquiring Portfolio may reasonably deem necessary or
desirable in order to vest in and confirm (a) the Company's, on behalf of the
Acquired Portfolio, title to and possession of the Acquiring Portfolio Shares to
be delivered hereunder, and (b) the Company's, on behalf of the Acquiring
Portfolio, title to and possession of all the assets and otherwise to carry out
the intent and purpose of this Agreement.
5.10. The Acquiring Portfolio will use all reasonable efforts to obtain the
approvals and authorizations required by the 1933 Act, the 1940 Act and such of
the state blue sky or securities laws as may be necessary in order to continue
its operations after the Closing Date.
5.11. The Acquiring Portfolio shall not change its Articles of
Incorporation, prospectus or statement of additional information prior to
Closing so as to restrict permitted investments for the Acquiring Portfolio
prior to the Closing, except as required by the Commission.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED PORTFOLIO
The obligations of the Company, on behalf of the Acquired Portfolio, to
consummate the transactions provided for herein shall be subject, at the
Company's election, to the performance by the Company, on behalf of the
Acquiring Portfolio, of all the obligations to be performed by it hereunder on
or before the Closing Date, and, in addition thereto, the following further
conditions:
6.1. All representations and warranties of the Company, on behalf of the
Acquiring Portfolio, contained in this Agreement shall be true and correct in
all material respects as of the date hereof
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and, except as they may be affected by the transactions contemplated by this
Agreement, as of the Closing Date, with the same force and effect as if made on
and as of the Closing Date; and
6.2. The Company, on behalf of the Acquiring Portfolio, shall have
performed all of the covenants and complied with all of the provisions required
by this Agreement to be performed or complied with by the Company, on behalf of
the Acquiring Portfolio, on or before the Closing Date.
6.3 The Acquired Portfolio and the Acquiring Portfolio shall have agreed on
the number of full and fractional Initial Class and Service Class Acquiring
Portfolio Shares to be issued in connection with the Reorganization after such
number has been calculated in accordance with paragraph 1.1.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING PORTFOLIO
The obligations of the Company, on behalf of the Acquiring Portfolio, to
complete the transactions provided for herein shall be subject, at the Company's
election, to the performance by the Company, on behalf of the Acquired
Portfolio, of all of the obligations to be performed by it hereunder on or
before the Closing Date and, in addition thereto, the following conditions:
7.1. All representations and warranties of the Company, on behalf of the
Acquired Portfolio, contained in this Agreement shall be true and correct in all
material respects as of the date hereof and, except as they may be affected by
the transactions contemplated by this Agreement, as of the Closing Date, with
the same force and effect as if made on and as of the Closing Date;
7.2. The Company, on behalf of the Acquired Portfolio, shall have performed
all of the covenants and complied with all of the provisions required by this
Agreement to be performed or complied with by the Company, on behalf of the
Acquired Portfolio, on or before the Closing Date; and
7.3. The Acquired Portfolio shall have declared and paid a distribution or
distributions prior to the Closing that, together with all previous
distributions, shall have the effect of distributing to its shareholders (i) all
of its investment company taxable income and all of its net realized capital
gains, if any, for the period from the close of its last fiscal year to the
Valuation Date; and (ii) any undistributed investment company taxable income and
net realized capital gains from any period to the extent not otherwise already
distributed.
7.4. The Acquired Portfolio shall have declared and paid a distribution or
distributions prior to the Closing that, together with all previous
distributions, shall have the effect of distributing to its shareholders (i) all
of their investment company taxable income and all of their net realized capital
gains, if any, for the period from the close of its last fiscal year to 4:00
p.m. Eastern time on the Closing Date; and (ii) any undistributed investment
company taxable income and net realized capital gains from any period to the
extent not otherwise already distributed.
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8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING PORTFOLIO
AND THE ACQUIRED PORTFOLIO
If any of the conditions set forth below have not been satisfied on or
before the Closing Date with respect to the Company, on behalf of the Acquired
Portfolio, or the Company, on behalf of the Acquiring Portfolio, the other party
to this Agreement shall, at its option, not be required to consummate the
transactions contemplated by this Agreement:
8.1. The Agreement and the transactions contemplated herein shall have been
approved in accordance with the provisions of the Company's Articles of
Incorporation, By-Laws, applicable Maryland law and the 1940 Act.
Notwithstanding anything herein to the contrary, neither the Acquired Portfolio
nor the Acquiring Portfolio may waive the conditions set forth in this paragraph
8.1;
8.2. On the Closing Date, no action, suit or other proceeding shall be
pending or, to its knowledge, threatened before any court or governmental agency
in which it is sought to restrain or prohibit, or obtain damages or other relief
in connection with, this Agreement or the transactions contemplated herein;
8.3. All consents of other parties and all other consents, orders and
permits of Federal, state and local regulatory authorities deemed necessary by
the Company to permit consummation, in all material respects, of the
transactions contemplated hereby shall have been obtained, except where failure
to obtain any such consent, order or permit would not involve a risk of a
material adverse effect on the assets or properties of the Acquiring Portfolio
or the Acquired Portfolio, provided that either party hereto may for itself
waive any of such conditions;
8.4. The Acquired Portfolio and the Acquiring Portfolio shall have agreed
on the number of full and fractional Acquiring Portfolio Shares of each class to
be issued in connection with the Reorganization after such number has been
calculated in accordance with paragraph 1.1; and
8.5. The parties shall have received the opinion of Dechert LLP addressed
to the Company substantially to the effect that, based upon certain facts,
assumptions, and representations, the transaction contemplated by this Agreement
shall constitute a tax-free reorganization for Federal income tax purposes. The
delivery of such opinion is conditioned upon receipt by Dechert LLP of
representations it shall request of the Company. Notwithstanding anything herein
to the contrary, neither the Acquired Portfolio nor the Acquiring Portfolio may
waive the condition set forth in this paragraph 8.5.
9. BROKERAGE FEES AND EXPENSES
9.1. The Acquired Portfolio and the Acquiring Portfolio represent and
warrant to each other that there are no brokers or finders entitled to receive
any payments in connection with the transactions provided for herein.
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9.2. Fifty percent of the expenses relating to the Reorganization will be
borne by NYLIM and the remaining 50% of the expenses will be allocated between
the Acquired Portfolio and the Acquiring Portfolio in proportion to their
relative net asset values. In addition, the Portfolios may incur brokerage fees
and expenses incurred in connection with the Reorganization. The costs of the
Reorganization shall include, but not be limited to, costs associated with
obtaining any necessary order of exemption from the 1940 Act, if any,
preparation of the Registration Statement, printing and distributing the Proxy
Statement, legal fees, accounting fees, securities registration fees, and
expenses of holding shareholders' meetings. 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 person of such
expenses would result in the disqualification of such party as a "regulated
investment company" within the meaning of Section 851 of the Code.
10. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
10.1. The Acquired Portfolio and the Acquiring Portfolio agree that neither
party has made any representation, warranty or covenant not set forth herein and
that this Agreement constitutes the entire agreement between the parties.
10.2. The representations, warranties and covenants contained in this
Agreement or in any document delivered pursuant hereto or in connection herewith
shall survive the consummation of the transactions contemplated hereunder. The
covenants to be performed after the Closing shall survive the Closing.
11. TERMINATION
This Agreement may be terminated and the transactions contemplated hereby
may be abandoned by resolution of the Board of Directors, on behalf of either
the Acquired Portfolio or the Acquiring Portfolio, at any time prior to the
Closing Date, if circumstances should develop that, in the opinion of the Board,
make proceeding with this Agreement inadvisable.
12. AMENDMENTS
This Agreement may be amended, modified or supplemented in such manner as
may be deemed necessary or advisable by the authorized officers of the Company,
on behalf of either the Acquired Portfolio or the Acquiring Portfolio; provided,
however, that following the meeting of the shareholders of the Acquired
Portfolio called by the Corporation, pursuant to paragraph 5.2 of this
Agreement, no such amendment may have the effect of changing the provisions for
determining the number of Initial and Service Class Acquiring Portfolio Shares
to be issued to the Initial and Service Class Acquired Portfolio Shareholders,
respectively, under this Agreement to the detriment of such shareholders without
their further approval.
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13. NOTICES
Any notice, report, statement or demand required or permitted by any
provisions of this Agreement shall be in writing and shall be given by
facsimile, electronic delivery (i.e., e-mail) personal service or prepaid or
certified mail addressed to the Corporation at 000 Xxxxxxxxxx Xxxxxx,
Xxxxxxxxxx, X.X. 00000, Attn: Xxxxxxxxxx X.X. Xxxxxxxx, in each case with a copy
to Dechert LLP, 0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, Attn: Sander M.
Bieber.
14. HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT; LIMITATION OF
LIABILITY
14.1. The Article and paragraph headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
14.2. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
14.3. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to its principles of conflicts
of laws.
14.4. This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns, but no assignment or
transfer hereof or of any rights or obligations hereunder shall be made by any
party without the written consent of the other party. Nothing herein expressed
or implied is intended or shall be construed to confer upon or give any person,
firm or corporation, other than the parties hereto and their respective
successors and assigns, any rights or remedies under or by reason of this
Agreement.
Except as expressly provided otherwise in this Plan, NYLIM, the Acquired
Portfolio and the Acquiring Portfolio will pay or cause to be paid all
out-of-pocket fees and expenses incurred in connection with the transactions
contemplated under this Plan, including, but not limited to, accountants' fees,
legal fees, registration fees, printing expenses, transfer taxes (if any), and
the fees of banks and transfer agents, as described in the Proxy Statement dated
May 21, 2007.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused this Plan to be
executed as of the 17th day of August, 2007.
MAINSTAY VP SERIES FUND, INC., MAINSTAY VP SERIES FUND, INC.,
ON BEHALF OF ITS SERIES ON BEHALF OF ITS SERIES
MainStay VP Income & Growth Portfolio MainStay VP ICAP Select Equity Portfolio
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx Xxxxxxxxxx
------------------------------- ---------------------------------
Xxxxxxx X. Xxxxxx Xxxx Xxxxxxxxxx
President Treasurer and Principal Financial
and Accounting Officer
New York Life Investment Management LLC agrees to the provisions set forth in
the last paragraph of this Plan.
NEW YORK LIFE INVESTMENT MANAGEMENT
LLC
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx
President and Chief Executive
Officer
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