EXHIBIT 77Q1(E) - First Amendment to Amended and Restated Investment
Advisory Agreement between Phoenix Series Fund and Phoenix Investment
Counsel, Inc. dated January 3, 2005, filed herewith.
EXHIBIT 77Q1(G) - Plan of Reorganization between Phoenix Series Fund, on
behalf of Phoenix Balanced Fund and Phoenix Strategic Allocation Fund
dated April 6, 2005, filed herewith.
FIRST AMENDMENT
TO AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
THIS AMENDMENT effective as of the 3rd day of January, 2005 amends that
certain Amended and Restated Investment Advisory Agreement effective as
of November 20, 2002 (the "Agreement") by and between Phoenix Series Fund,
a Delaware statutory trust (the "Trust") and Phoenix Investment Counsel,
Inc., a Massachusetts corporation (the "Adviser").
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the parties do hereby agree to amend the
Agreement as follows:
1. The name of the series Phoenix-Xxxxxxxx Aggressive Growth Fund has
been changed to Phoenix-Xxxxxxxx Mid-Cap Growth Fund.
2. The name of the series Phoenix-Oakhurst Balanced Fund will be come
Phoenix Balanced Fund and Phoenix Duff & Xxxxxx Core Bond Fund will
become Phoenix Core Bond Fund effective January 1, 2005.
3. Phoenix Investment Counsel, Inc. is the investment adviser to Phoenix
Core Bond Fund, replacing Duff & Xxxxxx Investment Management Company,
effective January 1, 2005.
4. Any and all reference to state of domicile for Phoenix Investment
Counsel, Inc. shall hereafter refer to the State of Massachusetts.
5. Appendix A to the Agreement is hereby deleted in its entirety and
Appendix A attached hereto is substituted in its place.
6. Except as expressly amended hereby, all provisions of the Agreement
shall remain in full force and effect and are unchanged in all other
respects. All initial capitalized terms used herein shall have such
meanings as ascribed thereto in the Agreement, as amended. All terms
and phrases in quotations shall have such meaning as ascribed thereto in
the Investment Company Act of 1940, as amended.
7. This Amendment shall become effective on the date first accepted
by the Adviser which date is set forth on the signature page hereof.
8. This Amendment may be executed in one or more counterparts, each
of which shall be deemed to be an original and, all of which, when
taken together, shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto intending to be legally bound
have caused this Agreement to be executed by their duly authorized
officers of other representatives.
PHOENIX INVESTMENT COUNSEL, INC. PHOENIX SERIES FUND
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Clerk Title: Senior Vice President
SCHEDULE A
SERIES INVESTMENT ADVISORY FEE
$1 BILLION
FIRST THROUGH
$1+BILLION $2 BILLION $2+ BILLION
Phoenix Balanced Fund 0.55% 0.50% 0.45%
Phoenix Core Bond Fund 0.45% 0.40% 0.35%
Phoenix-Xxxxxxxx Capital Growth Fund 0.70% 0.65% 0.60%
Phoenix-Xxxxxxx High Yield Fund 0.65% 0.60% 0.55%
Phoenix-Xxxxxxx Money Market Fund 0.40% 0.35% 0.30%
FIRST $50 NEXT $450 OVER $500
MILLION MILLION MILLION
Phoenix-Xxxxxxxx Mid-Cap Growth Fund 0.90% 0.80% 0.70%
The parties of this Agreement hereby acknowledge the following
fund name changes. Phoenix Balanced Fund f/k/a Phoenix-Oakhurst Balanced
Fund; Phoenix Core Bond Fund f/k/a Phoenix Duff & Xxxxxx Core Bond Fund;
and Phoenix-Xxxxxxxx Mid-Cap Growth Fund f/k/a Phoenix-Xxxxxxxx Aggressive
Growth Fund.
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement")
is made as of this 6th day of April, 2005, by and between Phoenix
Series Fund (the "Series Fund"), a Delaware Statutory Trust with
its principal place of business at 000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, on behalf of the Phoenix
Balanced Fund (the "Surviving Series"), a portfolio series
thereof, and the Phoenix Strategic Allocation Fund (the
"Strategic Allocation Fund"), a Delaware Statutory Trust with a
principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000 (the "Merging Series"). For the purposes
hereof, all references in this Agreement to action taken by the
Surviving Series or the Merging Series shall be deemed to refer
to action taken by the Series Fund or the Strategic Allocation
Fund, on behalf of the respective portfolio series and all
references to the "Trust(s)" shall collectively refer to the
Series Fund and the Strategic Allocation Fund.
RECITALS
This Agreement is intended to be and is adopted as a plan
of reorganization and liquidation within the meaning of Section
368(a)(1) of the United States Internal Revenue Code of 1986, as
amended (the "Code") and the regulations thereunder. The
reorganization (the "Reorganization") will consist of the
transfer of all or substantially all of the assets of the
Merging Series to the Surviving Series in exchange solely for
corresponding Class A, Class B and Class C shares of beneficial
interest in the Surviving Series (the "Surviving Series
Shares"), the assumption by the Surviving Series of all
liabilities of the Merging Series, and the distribution of the
Surviving Series Shares to the shareholders of the Merging
Series in complete liquidation of the Merging Series as provided
herein, all upon the terms and conditions hereinafter set forth
in this Agreement.
The Merging Series and the Surviving Series are separate
series of Strategic Allocation Fund and Series Fund,
respectively, which are open-end, registered investment
companies of the management type. The Merging Series owns
securities that generally are assets of the character in which
the Surviving Series is permitted to invest. The Trustees of the
Series Fund, including a majority of the trustees thereof who
are not interested persons, as such term is defined pursuant to
the Investment Company Act of 1940, as amended (the "1940 Act")
have determined that participation in the Reorganization is in
the best interests of the Surviving Series and its shareholders
and that the interests of the existing shareholders of the
Surviving Series would not be diluted as a result of effecting
this transaction.
The Trustees of the Strategic Allocation Fund, including a
majority of the trustees thereof who are not interested persons,
as such term is defined pursuant to the 1940 Act, have also
determined that participation in the Reorganization is in the
best interests of the Merging Series and its shareholders and
that the interests of the existing shareholders of the Merging
Series would not be diluted as a result of effecting this
transaction.
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements hereinafter set forth, the parties
hereto covenant and agree as follows:
1. TRANSFER OF ASSETS OF THE MERGING SERIES TO THE SURVIVING
SERIES IN EXCHANGE FOR THE SURVIVING SERIES SHARES, THE
ASSUMPTION OF ALL MERGING SERIES LIABILITIES AND THE
LIQUIDATION OF THE MERGING SERIES.
1.1 Subject to the terms and conditions herein set forth
and on the basis of the representations and warranties contained
herein, the Merging Series agrees to transfer all of the Merging
Series' assets, as set forth in paragraph 1.2, to the Surviving
Series, and the Surviving Series agrees in exchange therefor:
(i) to deliver to the Merging Series the number of full and
fractional Surviving Series Shares, determined by dividing the
value of the Merging Series' net assets, computed in the manner
and as of the time and date set forth in paragraph 2.1, by the
net asset value of one Surviving Series Share, 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 Merging Series, as set
forth in paragraph 1.3. Such transactions shall take place on
the next business day following the closing provided for in
paragraph 3.1 (the "Closing Date").
1.2 The assets of the Merging Series to be acquired by the
Surviving Series shall consist of all assets and property,
including, without limitation, all cash, securities, commodities
and futures interests, and dividends or interest receivable,
that are owned by the Merging Series, and any deferred or
prepaid expenses shown as an asset on the books of the Merging
Series on the Closing Date (collectively, the "Assets").
1.3 The Merging Series will endeavor to discharge all of
its known liabilities and obligations prior to the Closing Date.
The Surviving Series shall also assume all of the liabilities of
the Merging Series, whether accrued or contingent, known or
unknown, existing at the Valuation Date, as defined in paragraph
2.1 (collectively, the "Liabilities"). On or as soon as
practicable prior to the Closing Date, the Merging Series 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 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 Merging Series will distribute to the
Merging Series' shareholders of record, determined as of
immediately after the close of business on the Closing Date (the
"Merging Series Shareholders"), on a pro rata basis, the
Surviving Series Shares received by the Merging Series pursuant
to paragraph 1.1, and will completely liquidate. Such
distribution and liquidation will be accomplished, with respect
to the Merging Series' shares, by the transfer of the Surviving
Series Shares then credited to the account of the Merging Series
on the books of the Surviving Series to open accounts on the
share records of the Surviving Series in the names of the
Merging Series Shareholders. The aggregate net asset value of
Surviving Series Shares to be so credited to Merging Series
Shareholders shall be equal to the aggregate net asset value of
the Merging Series' shares owned by such shareholders on the
Closing Date. All issued and outstanding shares of the Merging
Series will simultaneously be canceled on the books of the
Merging Series.
1.5 Ownership of Surviving Series Shares will be shown on
the books of the Surviving Series or its transfer agent, as
defined in paragraph 3.3.
1.6 Any reporting responsibility of the Merging Series
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 responsibility of the Merging Series.
2. VALUATION
2.1 The value of the Assets shall be the value computed as
of immediately after the close of business of the New York Stock
Exchange and after the declaration of any dividends on the
Closing Date (such time and date being hereinafter called the
"Valuation Date"), using the valuation procedures established by
the Surviving Series' Board of Trustees, which shall be
described in the then-current prospectus and statement of
additional information with respect to the Surviving Series.
2.2 The net asset value of Surviving Series Shares shall
be the net asset value per share computed as of the Valuation
Date, using the valuation procedures established by the
Surviving Series' Board of Trustees which shall be described in
the Surviving Series' then-current prospectus and statement of
additional information.
2.3 The number of Surviving Series Shares to be issued
(including fractional shares, if any) in exchange for the Assets
shall be determined by dividing the value of the net assets with
respect to the shares of the Merging Series determined using the
same valuation procedures referred to in paragraph 2.1, by the
net asset value of a Surviving Series Share, determined in
accordance with paragraph 2.2.
2.4 All computations of value shall be made by Phoenix
Equity Planning Corporation, in its capacity as financial agent
for both the Series Fund and the Strategic Allocation Fund.
3. CLOSING AND CLOSING DATE
3.1 The Closing Date shall be April 29, 2005, or such
other date as the parties may agree. All acts taking place at
the closing of the transaction (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 4:00 p.m., Eastern Time. The Closing shall be held at the
offices of the Phoenix Life Insurance Company, Xxx Xxxxxxxx Xxx,
Xxxxxxxx, XX 00000 or at such other time and/or place as the
parties may agree.
3.2 The Strategic Allocation Fund shall direct State
Street Bank and Trust Company, as custodian for the Merging
Series (the "Custodian"), to deliver, on the next business day
after the Closing, a certificate of an authorized officer
stating that (i) the Assets have been delivered in proper form
to the Surviving Series, 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 Merging
Series' portfolio securities represented by a certificate or
other written instrument shall be presented for examination by
the Custodian to State Street Bank and Trust Company, as the
custodian for the Surviving Series, no later than on the next
business day following the Closing Date, and shall be
transferred and delivered by the Merging Series on the next
business day following the Closing Date for the account of the
Surviving Series duly endorsed in proper form for transfer in
such condition as to constitute good delivery thereof. The
Custodian shall deliver on the next business day following the
Closing Date by book entry, in accordance with the customary
practices of such depositories and the Custodian, the Merging
Series' portfolio securities and instruments deposited with a
securities depository, as defined in Rule 17f-4 under the 1940
Act. The cash to be transferred by the Merging Series shall be
delivered by wire transfer of Federal funds on the next business
day following the Closing Date.
3.3 The Strategic Allocation Fund shall direct Phoenix
Equity Planning Corporation (the "Transfer Agent"), on behalf of
the Merging Series, to deliver on the next business day
following the Closing, a certificate by an authorized officer
stating that its records contain the names and addresses of the
Merging Series Shareholders, and the number and percentage
ownership of outstanding shares owned
by each such shareholder immediately prior to the Closing. The
Surviving Series shall issue and deliver a confirmation
evidencing the Surviving Series Shares to be credited on the
Closing Date to the Secretary of the Surviving Series, or
provide evidence satisfactory to the Merging Series that such
Surviving Series Shares have been credited to the Merging
Series' account on the books of the Surviving Series. At the
Closing, each party shall deliver to the other such bills of
sale, checks, assignments, share certificates, if any, receipts
or other documents as such other party or its counsel may
reasonably request.
3.4 In the event that on the Valuation Date (a) the New
York Stock Exchange or another primary trading market for
portfolio securities of the Surviving Series or the Merging
Series 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 Trustees of the Trusts, accurate
appraisal of the value of the net assets of the Surviving Series
or the Merging Series, respectively, is impracticable, the
Closing Date shall be postponed until the first Friday after the
day when trading shall have been fully resumed and reporting
shall have been restored.
4. REPRESENTATIONS AND WARRANTIES
4.1 The Strategic Allocation Fund, on behalf of the
Merging Series, represents and warrants to the Series Fund as
follows:
(a) The Merging Series is duly organized as a series
of the Strategic Allocation Fund, which is a Statutory Trust
duly organized, validly existing and in good standing under the
laws of the State of Delaware, with power under the Strategic
Allocation Fund's Agreement and Declaration of Trust, as amended
("Declaration of Trust"), to own all of its Assets and to carry
on its business as it is now being conducted;
(b) The Strategic Allocation Fund is a registered
investment company classified as a management company of the
open-end type, and its registration with the Commission as an
investment company under the 1940 Act, and the registration of
shares of the Merging Series under the Securities Act of 1933,
as amended ("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 Merging Series of the transactions
contemplated herein, except such as have been obtained under the
1933 Act, the Securities Exchange Act of 1934, as amended (the
"1934 Act") and the 1940 Act and such as may be required by
state securities laws;
(d) The current prospectus and statement of
additional information of the Merging Series 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 Strategic Allocation
Fund, on behalf of the Merging Series, 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 Series Fund, on behalf
of the Surviving Series, 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 Surviving Series;
(f) The Merging Series is not engaged currently, and
the execution, delivery and performance of this Agreement will
not result, in (i) a material violation of the Strategic
Allocation Fund's Declaration of Trust or of any agreement,
indenture, instrument, contract, lease or other undertaking to
which the Strategic Allocation Fund, on behalf of the Merging
Series, 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 Strategic Allocation
Fund, on behalf of the Merging Series, is a party or by which it
is bound;
(g) All material contracts or other commitments of
the Merging Series (other than this Agreement and certain
investment contracts, including options, futures and forward
contracts) will terminate without liability to the Merging
Series on or prior to the Closing Date;
(h) Except as otherwise disclosed in writing to and
accepted by the Series Fund, on behalf of the Surviving Series,
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 Strategic
Allocation Fund, on behalf of the Merging Series, 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 Strategic Allocation Fund, on
behalf of the Merging Series, knows of no facts or
circumstances, which, individually or in the aggregate, with the
passage of time or the giving of notice (or both) would 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 or that does or could lead to a
claim under existing directors and officers errors and omissions
coverage;
(i) The Statement of Assets and Liabilities,
Statements of Operations and Changes in Net Assets, and Schedule
of Investments of the Merging Series at December 31, 2004, have
been audited by PricewaterhouseCoopers, LLP ("PwC"), independent
registered public accounting firm, and are in accordance with
generally accepted accounting principles ("GAAP") consistently
applied, and such statements present fairly, in all material
respects, the financial condition of the Merging Series as of
such date in accordance with GAAP, and there are no known
contingent liabilities of the Merging Series 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, 2004, there has not been any
material adverse change in the Merging Series' financial
condition, assets, liabilities or business, other than changes
occurring in the ordinary course of business, or any incurrence
by the Merging Series of indebtedness maturing more than one
year from the date such indebtedness was incurred, except as
otherwise disclosed to and accepted by the Surviving Series. For
the purposes of this subparagraph (j), a decline in net asset
value per share of the Merging Series due to declines in market
values of securities in the Merging Series' portfolio, the
discharge the Liabilities, or the redemption of Merging Series'
shares by shareholders of the Merging Series shall not
constitute a material adverse change;
(k) On the Closing Date, all Federal and other tax
returns, dividend reporting forms and other tax-related reports
of the Merging Series 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
Merging Series' knowledge, no such return is 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 Merging Series
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 compute and has computed (or will
compute) its Federal income tax under Section 852 of the Code,
and 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, and 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;
(m) All issued and outstanding shares of the Merging
Series are, and on the Closing Date will be, duly and validly
issued and outstanding, will be fully paid and non-assessable
and have been offered and sold in every state and the District
of Columbia in compliance in all material respects with
applicable registration requirements of the 1933 Act and state
securities laws. All of the issued and outstanding shares of the
Merging Series will, at the time of Closing, be held by the
persons and in the amounts set forth in the records of the
Transfer Agent, on behalf of the Merging Series, as provided in
paragraph 3.3. Except for (x) the right of Class B shares of the
Merging Series to automatically convert into Class A shares of
the Merging Series eight years after purchase, or (y) in
connection with any automatic dividend reinvestment plan
available to the Merging Series' shareholders, the Merging
Series does not have outstanding any options, warrants or other
rights to subscribe for or to purchase any of the shares of the
Merging Series, nor is there outstanding any security
convertible into any of the Merging Series 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
Trustees of the Strategic Allocation Fund, on behalf of the
Merging Series, and this Agreement will constitute a valid and
binding obligation of the Merging Series, 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 Merging
Series for use in registration statements, proxy materials and
other documents filed or to be filed with any Federal, state or
local regulatory authority (including the NASD), 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 information statement of the Merging Series
(the "Proxy Statement") to be included in the Registration
Statement referred to in paragraph 5.6, insofar as it relates to
the Merging Series, will, on the effective date of the
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 in
this subparagraph (p) shall not apply to statements in or
omissions from the Information Statement and the Registration
Statement made in reliance upon and in conformity with
information that was furnished by the Surviving Series 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; and
(q) Any person who acts as legal counsel for the
independent trustees of the Strategic Allocation Fund is an
independent legal counsel as such term is defined under
applicable law.
4.2 The Series Fund, on behalf of the Surviving Series,
represents and warrants as follows:
(a) The Surviving Series is duly organized as a
series of the Series Fund, which is a Statutory Trust duly
organized, validly existing and in good standing under the laws
of the State of Delaware with power under the Series Fund's
Declaration of Trust to own all of its assets and to carry on
its business as it is now being conducted;
(b) The Series Fund is a registered investment
company classified as a management company of the open-end type,
and its registration with the Commission as an investment
company under the 1940 Act and the registration of shares of the
Surviving Series under the 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 Surviving Series 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 by state securities laws;
(d) The current prospectus and statement of
additional information of the Surviving Series 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 Series Fund, on behalf
of the Surviving Series, will have good and marketable title to
the Surviving Series' assets, free of any liens of other
encumbrances, except those liens or encumbrances as to which the
Merging Series has received notice and necessary documentation
at or prior to the Closing;
(f) The Surviving Series is not engaged currently,
and the execution, delivery and performance of this Agreement
will not result, in (i) a material violation of the Series
Fund's Declaration of Trust or By-Laws or of any agreement,
indenture, instrument, contract, lease or other undertaking to
which the Series Fund, on behalf of the Surviving Series, 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 Series Fund, on behalf of the Surviving
Series, is a party or by which it is bound;
(g) Except as otherwise disclosed in writing to and
accepted by the Strategic Allocation Fund, on behalf of the
Merging Series, 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
Series Fund, on behalf of the Surviving Series, or any of the
Surviving Series' properties or assets that, if adversely
determined, would materially and adversely affect the Surviving
Series' financial condition or the conduct of the Surviving
Series' business. The Series Fund, on behalf of the Surviving
Series, knows of no facts or circumstances which, individually
or in the aggregate, with the passage of time or the giving of
notice (or both) 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 the
Surviving Series' business or the Surviving Series' ability to
consummate the transactions herein contemplated or that does or
could lead to a claim under existing directors and officers
errors and omissions coverage;
(h) The Statement of Assets and Liabilities,
Statements of Operations and Changes in Net Assets and Schedule
of Investments of the Surviving Series at October 31, 2004, have
been audited by PwC, independent registered public accounting
firm, and are in accordance with GAAP consistently applied, and
such statements (copies of which have been furnished to the
Merging Series) present fairly, in all material respects, the
financial condition of the Surviving Series as of such date in
accordance with GAAP, and there are no known contingent liabilities
of the Surviving Series 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 October 31, 2004, there has not been any
material adverse change in the Surviving Series' financial
condition, assets, liabilities or business, other than changes
occurring in the ordinary course of business, or any incurrence
by the Surviving Series of indebtedness maturing more than one
year from the date such indebtedness was incurred, except as
otherwise disclosed to and accepted by the Merging Series. For
purposes of this subparagraph (i), a decline in net asset value
per share of the Surviving Series due to declines in market
values of securities in the Surviving Series' portfolio, the
discharge of Surviving Series' liabilities, or the redemption of
Surviving Series Shares by shareholders of the Surviving Series,
shall not constitute a material adverse change;
(j) On the Closing Date, all Federal and other tax
returns, dividend reporting forms, and other tax-related reports
of the Surviving Series 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
Surviving Series' 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 including the Closing Date), the Surviving
Series has met (or will meet) the requirements of Subchapter M
of the Code for qualification as a regulated investment company,
has been eligible to compute and has computed (or will compute)
its Federal income tax under Section 852 of the Code;
(l) All issued and outstanding shares of the
Surviving Series are, and on the Closing Date will be, duly and
validly issued and outstanding, will be fully paid and non-
assessable and have been offered and sold in every state and the
District of Columbia in compliance in all material respects with
applicable registration requirements of the 1933 Act. Except for
(x) the right of Class B shares of the Merging Series to
automatically convert into Class A shares of the Surviving
Series eight years after purchase, or (y) in connection with any
automatic dividend reinvestment plan available to the Surviving
Series' shareholders, the Surviving Series does not have
outstanding any options, warrants or other rights to subscribe
for or purchase any shares of the Surviving Series, nor is there
outstanding any security convertible into any shares of the
Surviving Series;
(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
Trustees of the Series Fund, on behalf of the Surviving Series,
and this Agreement will constitute a valid and binding
obligation of the Series Fund, on behalf of the Surviving
Series, 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;
(n) Surviving Series Shares to be issued and
delivered to the Merging Series, for the account of the Merging
Series 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 duly and validly issued Surviving
Series Shares, and will be fully paid and non-assessable;
(o) The information to be furnished by the Series
Fund for use in the registration statements, proxy materials and
other documents filed or to be filed with any Federal, state or
local regulatory authority (including the NASD) 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) That insofar as it relates to the Surviving
Series, the Registration Statement relating to the Surviving
Series Shares issuable hereunder, and the Information Statement
to be included in the Registration Statement, and any amendment
or supplement to the foregoing, will, from the effective date of
the Registration Statement (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 misleading provided, however, that the representations
and warranties in this subparagraph (p) shall not apply to
statements in or omissions from the Registration Statement made
in reliance upon and in conformity with information that was
furnished by the Merging Series 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;
(q) The majority of the Trustees of the Series Fund
are not interested persons of the Series Fund, and those
trustees select and nominate any of the independent trustees of
the Series Fund; and
(r) Any person who acts as legal counsel for the
independent trustees of the Series Fund is an independent legal
counsel as such term is defined under applicable law.
5. COVENANTS OF THE SERIES FUND AND THE STRATEGIC ALLOCATION
FUND, ON BEHALF OF THE SURVIVING SERIES AND THE MERGING
SERIES, RESPECTIVELY
5.1 The Surviving Series and the Merging Series 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 Board of Trustees of the Strategic Allocation Fund
has considered and approved this Agreement as permitted under
applicable state and Federal law and the operative trust
document and will take all other reasonable action necessary to
obtain approval of the transactions contemplated herein.
5.3 The Series Fund covenants that the Surviving Series
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 Subject to the provisions of this Agreement, the
Trusts 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.
5.5 As soon as is reasonably practicable after the
Closing, the Merging Series will make a liquidating distribution
to its shareholders consisting of the Surviving Series Shares
received at the Closing.
5.6 The Strategic Allocation Fund will provide the Series
Fund with information reasonably necessary for the preparation
of a registration statement on Form N-14 to the Merging Series
(the "Registration Statement"), such Registration statement to
consist of, without limitation, a prospectus and Information
Statement.
5.7 The Strategic Allocation Fund, on behalf of the
Merging Series, covenants that it will, from time to time, as
and when reasonably requested by the Series Fund, on behalf of
the Surviving Series, 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 Series Fund, on behalf of the Surviving Series,
may reasonably deem necessary or desirable in order to carry out
the intent and purpose of this Agreement to vest in and confirm
(a) the Strategic Allocation Fund's, on behalf of the Merging
Series', title to and possession of the Surviving Series Shares
to be delivered hereunder, and (b) the Series Fund's, on behalf
of the Surviving Series', title to and possession of all the
Assets.
5.8 The Surviving Series will use all reasonable efforts
to obtain the approvals and authorizations required by the 1933
Act and the 1940 Act as may be necessary in order to continue
its operations after the Closing Date.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE MERGING SERIES
The obligations of the Strategic Allocation Fund, on behalf
of the Merging Series, to consummate the transactions provided
for herein shall be subject, at its election, to the performance
by the Series Fund, on behalf of the Surviving Series, 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 Series Fund,
on behalf of the Surviving Series, 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;
6.2 The Series Fund, on behalf of the Surviving Series,
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 Series Fund, on behalf of the Surviving
Series, on or before the Closing Date; and
6.3 The Merging Series and the Surviving Series shall have
agreed on the number of full and fractional Surviving Series
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 SURVIVING SERIES
The obligations of the Series Fund, on behalf of the
Surviving Series, to complete the transactions provided for
herein shall be subject, at its election, to the performance by
the Strategic Allocation Fund, on behalf of the Merging Series,
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 Strategic
Allocation Fund, on behalf of the Merging Series, 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 Strategic Allocation Fund, on behalf of the
Merging Series, shall have delivered to the Surviving Series a
statement of the Assets and the Liabilities, as of the Closing
Date, certified by the Treasurer or any Assistant Treasurer of
the Strategic Allocation Fund;
7.3 The Strategic Allocation Fund, on behalf of the
Merging Series, 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 Strategic Allocation Fund,
on behalf of the Merging Series, on or before the Closing Date;
7.4 The Merging Series and the Surviving Series shall have
agreed on the number of full and fractional Surviving Series
Shares to be issued in connection with the Reorganization after
such number has been calculated in accordance with paragraph
1.1; and
7.5 The Merging Series 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 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.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE
SURVIVING SERIES AND THE MERGING SERIES
If any of the conditions set forth below have not been
satisfied on or before the Closing Date with respect to the
Strategic Allocation Fund, on behalf of the Merging Series, or
the Series Fund, on behalf of the Surviving Series, the other
party to this Agreement shall, at its option, not be required to
consummate the transactions contemplated by this Agreement:
8.1 On the Closing Date, no action, suit or other
proceeding shall be pending or, to each Trust's 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;
8.2 All consents of other parties and all other consents,
orders and permits of Federal, state and local regulatory
authorities deemed necessary by the Strategic Allocation Fund or
the Series Fund 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 Surviving Series or
the Merging Series, provided that either party hereto may for
itself waive any of such conditions;
8.3 The Registration Statement shall have become effective
under the 1933 Act and no stop orders suspending the
effectiveness thereof shall have been issued and, to the best
knowledge of the parties hereto, no investigation or proceeding
for that purpose shall have been instituted or be pending,
threatened or contemplated under the 1933 Act; and
8.4 The parties shall have received the signed opinion of
Xxxxxxxx & Worcester, addressed to the parties hereto and
Phoenix Investment Counsel, Inc. in the form agreed upon by the
parties hereto, substantially to the effect that, based upon
certain facts, and the Officer's Certificate, the transaction
contemplated by this Agreement, will for Federal income tax
purposes, qualify as a tax free reorganization described in
Section 368(a) of the Code. The delivery of such opinion is
conditioned upon receipt of an Officer's Certificate
substantially in the form agreed upon by the parties.
9. BROKERAGE FEES AND EXPENSES
9.1 The Strategic Allocation Fund, on behalf of the
Merging Series, and the Series Fund, on behalf of the Surviving
Series, 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.
9.2 The expenses relating to the proposed Reorganization
arising from and after approval by each respective board of
trustees, will be borne by Phoenix Investment Partners, Ltd. 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, preparation of the Registration
Statement, printing and distributing the Surviving Series'
prospectus and the Merging Series' Information 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 Strategic Allocation Fund and the Series Fund have
not made any representation, warranty or covenant not set forth
herein, and 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 either party: (i) by
mutual agreement of the parties, or (ii) either party if the
Closing shall not have occurred on or before June 30, 2005,
unless such date is extended by mutual agreement of the parties,
or (iii) either party if the other party shall have materially
breached its obligations under this Agreement or made a material
and intentional misrepresentation herein or in connection
herewith. In the event of any such termination, this Agreement
shall become void and there shall be no liability hereunder on
the part of any party or their respective Trustees or officers,
except for any such material breach or intentional
misrepresentation, as to each of which all remedies at law or in
equity of the party adversely affected shall survive.
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 Strategic Allocation Fund and the
Series Fund.
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, personal service or
prepaid or certified mail addressed to the parties hereto at
their principal place of business.
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 Delaware 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.
14.5 It is expressly agreed that the obligations of the
Strategic Allocation Fund hereunder shall not be binding upon
any of the Trustees, shareholders, nominees, officers, agents,
or employees of the Strategic Allocation Fund personally, but
shall bind only the trust property of the Merging Series, as
provided in the Declaration of Trust of the Strategic Allocation
Fund. The execution and delivery by such officers of the
Strategic Allocation Fund shall not be deemed to have been made
by any of them individually or to impose any liability on any of
them personally, but shall bind only the trust property of the
Merging Series as provided in the Declaration of Trust of the
Strategic Allocation Fund. Strategic Allocation Fund is a series
company with a single portfolio series, and the Strategic
Allocation Fund has entered into this Agreement on behalf of
such series, the Merging Series. With respect to any obligation
of the Strategic Allocation Fund arising hereunder, the Series
Fund and the Surviving Series shall look for payment or
satisfaction of such obligations solely to the assets and
property of the Merging Series.
14.6 It is expressly agreed that the obligations of the
Series Fund hereunder shall not be binding upon any of the
Trustees, shareholders, nominees, officers, agents or employees
of the Series Fund personally, but shall bind only the trust
property of the Surviving Series, as provided in the Declaration
of Trust of the Series Fund. The execution and delivery by such
officers of the Series Fund shall not be deemed to have been
made by any of them individually or to impose any liability on
any of them personally, but shall bind only the trust property
of the Surviving Series as provided in the Declaration of Trust
of the Series Fund. The Series Fund is a series company with six
portfolio series, and the Series Fund has entered into this
Agreement on behalf of one such series, the Surviving Series.
With respect to any obligation of the Series Fund arising
hereunder, the Strategic Allocation Fund and the Merging Series
shall look for payment or satisfaction of such obligations
solely to the assets and property of the Surviving Series.
[signature page follows]
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its President or a Vice President
and its seal to be affixed thereto and attested by its Secretary
or Assistant Secretary.
Attest: PHOENIX SERIES FUND, on behalf of
Phoenix Balanced Fund
/s/ Xxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
Xxx Xxxxxxx Xxxxxx X. Xxxxxxx
Assistant Secretary Title: Executive Vice President
Attest: PHOENIX STRATEGIC ALLOCATION FUND
/s/ Xxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
Xxx Xxxxxxx Xxxxxxx X. Xxxxxxx
Assistant Secretary Title: Senior Vice President
