FORM OF AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION is dated as of September 10,
2003 ("Agreement"), by and between [ ] ("Selling Corporation") and [ ]
("Acquiring Corporation"), each a Wisconsin corporation, to provide for the
reorganization of [ ] ("Selling Fund"), a series of the Selling Corporation,
into [ ] ("Acquiring Fund"), a series of the Acquiring Corporation. The Selling
Corporation and the Acquiring Corporation are sometimes referred to collectively
as the "Corporations" and individually as a "Corporation." The Selling Fund and
the Acquiring Fund are sometimes referred to collectively as the "Funds" and
individually as a "Fund."
PRELIMINARY STATEMENTS
A. The Selling Fund and the Acquiring Fund are series of the Selling
Corporation and the Acquiring Corporation, respectively, which are open-end
management investment companies registered under the Investment Company Act of
1940 ("1940 Act").
B. The Board of Directors ("Board") of each Corporation has determined
that the Reorganization (as defined below) is in the best interests of its
respective Fund and that the interests of the existing shareholders of such Fund
would not be diluted as a result of the Reorganization.
C. This Agreement is intended to be and is adopted as a plan of
reorganization and liquidation within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended ("Code"). In consideration of the
mutual promises contained in this Agreement, the parties hereto agree to effect
the transfer of all of the assets of the Selling Fund solely in exchange for (a)
the assumption by the Acquiring Fund of liabilities of the Selling Fund (except
those, if any, for which specific reserves have been set aside) and (b) shares
of the Acquiring Fund followed by the distribution, as of the Effective Time (as
defined in Section 9 of this Agreement), of such shares of the Acquiring Fund to
the shareholders of the Selling Fund on the terms and conditions in this
Agreement in liquidation of the Selling Fund (the "Reorganization"). The shares
of the Acquiring Fund that are given in exchange for the assets of the Selling
Fund are referred to as the "Acquiring Fund Shares," and the shares of the
Selling Fund that are held by the holders of such shares at the Effective Time
are referred to as the "Selling Fund Shares."
AGREEMENTS
The parties to this Agreement covenant and agree as follows:
1. PLAN OF REORGANIZATION. As of the Effective Time (as defined in
Section 9, below), the Selling Fund will assign, deliver, and otherwise transfer
all of its assets and good and marketable title to the assets, free and clear of
all liens, encumbrances, and adverse claims except as provided in this
Agreement, and assign the liabilities (except those, if any, for which specific
reserves have been set aside) as set forth in a statement of assets and
liabilities, to be prepared as of the Effective Time (the "Statement of Assets
and Liabilities") to the Acquiring Fund. The Acquiring Fund shall acquire all
these assets, and shall assume these liabilities of the Selling Fund, in
exchange for delivery to the Selling Fund by the Acquiring Fund of a number of
its Acquiring Fund Shares (both full and fractional) equivalent in value to the
Selling Fund Shares of the Selling Fund outstanding immediately prior to the
Effective Time. The assets and liabilities (except those, if any, for which
specific reserves have been set aside) of the Selling Fund, as set forth in the
Statement of Assets and Liabilities, shall be exclusively assigned to and
assumed by the Acquiring Fund. All debts, liabilities, obligations, and duties
of the Selling Fund, to the extent that they exist at or after the Effective
Time and are stated in the Statement of Assets and Liabilities, shall after the
Effective Time, attach to the Acquiring Fund and may be enforced against the
Acquiring Fund to the same extent as if the same had been incurred by the
Acquiring Fund. If the Selling Fund is unable to make delivery of any of its
portfolio securities pursuant to this Section to the Acquiring Fund for the
reason that any of such securities purchased by the Selling Fund have not yet
been delivered to it by the Selling Fund's broker or brokers, then in lieu of
such delivery, the Selling Fund shall deliver to the Acquiring Fund, with
respect to these securities, executed copies of an agreement of assignment and
due bills executed on behalf of said broker or brokers, together with such other
documents as may be required by the Acquiring Fund, including brokers'
confirmation slips.
2. TRANSFER OF ASSETS. The assets of the Selling Fund to be acquired by
the Acquiring Fund shall include, without limitation, all cash, cash
equivalents, securities, receivables (including interest and dividends
receivable), goodwill, and intangible property, and deferred or prepaid expenses
as set forth in the Selling Fund's Statement of Assets and Liabilities, as well
as any claims or rights of action or rights to register shares under applicable
securities laws, any books or records of the Selling Fund and other property
owned by the Selling Fund at the Effective Time.
3. LIQUIDATION AND DISSOLUTION OF THE SELLING FUND AND OF THE SELLING
CORPORATION. As of the Effective Time, the Selling Fund will liquidate and the
Acquiring Fund Shares (both full and fractional) received by the Selling Fund
will be issued to the shareholders of record of the Selling Fund as of the
Effective Time in exchange for Selling Fund Shares and in complete liquidation
of the Selling Fund. Each shareholder of the Selling Fund will receive a number
of Acquiring Fund Shares equal in value to the Selling Fund Shares held by that
shareholder. This liquidation and issuance will be accomplished by either the
establishment of an open account on the share records of the Acquiring Fund in
the name of the shareholder of record of the Selling Fund, or the transfer of
share records of the Selling Fund in the name of the shareholder of record of
the Selling Fund to the Acquiring Fund, and representing the respective number
of Acquiring Fund Shares due that shareholder. Each Selling Fund shareholder
shall also have the right to receive any dividends or other distributions that
were declared prior to the Effective Time, but unpaid at that time, with respect
to the Selling Fund Shares that are held by such Selling Fund shareholders at
the Effective Time. All issued and outstanding shares of the Selling Fund shall
then be cancelled on the books of the Selling Fund. The Acquiring Fund shall not
be required to issue certificates representing Acquiring Fund shares in
connection with the Reorganization. An amendment to the Articles of
Incorporation of the Selling Corporation in a form not materially different from
that attached in Annex 1 to this Agreement ("Articles Amendment") shall be filed
to eliminate the shares constituting the Selling Fund as a class of the Selling
Corporation's common stock.
4. REPRESENTATIONS AND WARRANTIES OF THE ACQUIRING FUND. The Acquiring
Fund represents and warrants to the Selling Fund as follows:
(a) SHARES TO BE ISSUED UPON REORGANIZATION. The Acquiring Fund Shares
to be issued in connection with the Reorganization (i) have been duly authorized
and upon consummation of the Reorganization will be validly issued, fully paid,
and non-assessable, to the fullest extent permitted by applicable law, and (ii)
will be duly registered in conformity with applicable federal and state
securities laws, and no shareholder of the Acquiring Fund shall have any option,
warrant, or preemptive right of subscription or purchase with respect to the
Acquiring Fund's Shares.
(b) LIABILITIES. There are no liabilities of the Acquiring Fund,
whether or not determined or determinable, other than liabilities disclosed or
provided for in the Acquiring Fund's statement of assets and liabilities, if
any, and liabilities incurred in the ordinary course of business prior to the
Effective Time or otherwise previously disclosed to the Selling Fund, none of
which has been materially adverse to the business, assets, or results of
operations of the Acquiring Fund.
(c) LITIGATION. Except as previously disclosed to the Selling Fund,
there are no claims, actions, suits, or proceedings pending or, to the actual
knowledge of the Acquiring Fund, threatened that would materially adversely
affect the Acquiring Fund or its assets or business or which would prevent or
hinder in any material respect consummation of the transactions contemplated by
this Agreement.
(d) TAXES. As of the Effective Time, all federal and other tax returns
and reports of the Acquiring Fund required by law to have been filed shall have
been filed, and all other taxes shall have been paid so far as due, or provision
shall have been made for the payment of them, and to the best of the Acquiring
Fund's knowledge, no such return is currently under audit and no assessment has
been asserted with respect to any of these returns.
(e) FEES AND EXPENSES. As of the Effective Time, there are no brokers
or finders entitled to receive any payments in connection with the transactions
provided for in this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF THE SELLING FUND. The Selling Fund
represents and warrants to the Acquiring Fund as follows:
(a) MARKETABLE TITLE TO ASSETS. The Selling Fund will have, at the
Effective Time, good and marketable title to, and full right, power and
authority to sell, assign, transfer, and deliver the assets to be transferred to
the Acquiring Fund. Upon delivery and payment for these assets, the Acquiring
Fund will have good and marketable title to the assets without restriction on
the transfer of the assets free and clear of all liens, encumbrances, and
adverse claims.
(b) LIABILITIES. There are no liabilities of the Selling Fund, whether
or not determined or determinable, other than liabilities disclosed or provided
for in the Selling Fund's statement of assets and liabilities, and liabilities
incurred in the ordinary course of business prior to the Effective Time or
otherwise previously disclosed to the Acquiring Fund, none of which has been
materially adverse to the business, assets, or results of operations of the
Selling Fund.
(c) LITIGATION. Except as previously disclosed to the Acquiring Fund,
there are no claims, actions, suits, or proceedings pending or, to the knowledge
of the Selling Fund, threatened that would materially adversely affect the
Selling Fund or its assets or business or that would prevent or hinder in any
material respect consummation of the transactions contemplated by this
Agreement.
(d) TAXES. As of the Effective Time, all federal and other tax returns
and reports of the Selling Fund required by law to have been filed shall have
been filed, and all other taxes shall have been paid so far as due, or provision
shall have been made for the payment of them, and to the best of the Selling
Fund's knowledge, no such return is currently under audit and no assessment has
been asserted with respect to any of those returns.
(e) FEES AND EXPENSES. As of the Effective Time, there are no brokers
or finders entitled to receive any payments in connection with the transactions
provided for in this Agreement.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The
obligations of the Acquiring Fund under this Agreement shall be subject to the
following conditions:
(a) All representations and warranties of the Selling Fund contained in
this Agreement shall be true and correct in all material respects as of the date
of this Agreement and, except as they may be affected by the transactions
contemplated by this Agreement, as of the Effective Time, with the same force
and effect as if made on and as of the Effective Time.
(b) The Acquiring Corporation shall have received an opinion of counsel
to both Funds, regarding the transaction, in form reasonably satisfactory to the
Acquiring Corporation and dated as of the Effective Time, to the effect that:
(1) the Selling Corporation is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Wisconsin;
(2) the shares of the Selling Fund issued and outstanding at
the Effective Time are duly authorized and validly issued, fully paid, and
non-assessable by the Selling Corporation, except to the extent provided in
Section 180.0622(2)(b) of the Wisconsin Statutes, including judicial
interpretations thereof and any successor statute;
(3) this Agreement has been duly authorized, executed, and
delivered by the Selling Corporation and represents a valid and binding contract
of the Selling Corporation, enforceable in accordance with its terms, subject to
the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and transfer, and other similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
provided, however, that no opinion need be expressed with respect to provisions
of this Agreement relating to indemnification nor with respect to provisions of
this Agreement intended to limit liability for particular matters to the Selling
Fund and its assets;
(4) the execution and delivery of this Agreement did not, and
the consummation of the transactions contemplated by this Agreement will not,
violate the Amended and Restated Articles of Incorporation or Bylaws of the
Selling Corporation or any material agreement known to such counsel to which the
Selling Corporation is a party or by which it is bound;
(5) to the knowledge of such counsel, no consent, approval,
authorization, or order of any court or governmental authority is required for
the consummation by the Selling Fund of the transactions contemplated by this
Agreement, except such as have been obtained under the Securities Act of 1933
(the "1933 Act"), state securities laws, the 1940 Act, as amended, and, the
rules and regulations under those statutes; and
(6) the Selling Corporation is registered as an investment
company under the 1940 Act and such registration with the Securities and
Exchange Commission ("SEC") as an investment company under the 1940 Act is in
full force and effect.
Such opinion: (i) shall state that while such counsel has not verified,
and is not passing upon and does not assume responsibility for, the accuracy,
completeness, or fairness of any portion of the Form N-14 Registration Statement
relating to the Reorganization or any amendment thereof or supplement thereto,
it has generally reviewed and discussed certain information included therein
with respect to the Selling Fund and the Selling Corporation with certain
officers of the Selling Corporation and that in the course of such review and
discussion no facts came to the attention of such counsel that caused it to
believe that, on the respective effective or clearance dates of the Form N-14
Registration Statement, and any amendment thereof or supplement thereto and only
insofar as they relate to information with respect to the Selling Corporation
and the Selling Fund, the Form N-14 Registration Statement or any amendment
thereof or supplement thereto contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or necessary
to make the statements therein not misleading; (ii) shall state that such
counsel does not express any opinion or belief as to the financial statements,
other financial data, statistical data, or any information relating to the
Selling Corporation or the Selling Fund contained or incorporated by reference
in the Form N-14 Registration Statement; and (iii) shall state that such opinion
is solely for the benefit of the Acquiring Corporation and its Board and
officers.
In giving such opinion, counsel may rely upon officers' certificates
and certificates of public officials.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLING FUND. The
obligations of the Selling Fund under this Agreement shall be subject to the
following conditions:
(a) all representations and warranties of the Acquiring Fund contained
in this Agreement shall be true and correct in all material respects as of the
date of this Agreement and, except as they may be affected by the transactions
contemplated by this Agreement, as of the Effective Time, with the same force
and effect as if made on and as of the Effective Time.
(b) the Selling Corporation shall have received an opinion of counsel
to both Funds, regarding the transaction, in form reasonably satisfactory to the
Selling Corporation, and dated as of the Effective Time, to the effect that:
(1) the Acquiring Corporation is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Wisconsin;
(2) the shares of the Acquiring Fund issued and outstanding at
the Effective Time are duly authorized and validly issued, fully paid, and
non-assessable by the Acquiring Corporation except to the extent provided in
Section 180.0622(2)(b) of the Wisconsin Statutes, including any judicial
interpretations thereof and any successor statute, and the Acquiring Fund Shares
to be delivered to the Selling Fund, as provided for by this Agreement, are duly
authorized and upon delivery pursuant to the terms of this Agreement, will be
validly issued, fully paid, and non-assessable by the Acquiring Corporation
except to the extent provided in Section 180.0622(2)(b) of the Wisconsin
Statutes, including any judicial interpretations thereof and any successor
statute, and no shareholder of the Acquiring Fund has any option, warrant, or
preemptive right to subscription or purchase in respect thereof based on a
review of the Acquiring Corporation's Amended and Restated Articles of
Incorporation and Bylaws and otherwise to such counsel's knowledge;
(3) the Board of the Acquiring Corporation has duly authorized
the Acquiring Fund as a class of common stock of the Acquiring Corporation
pursuant to the terms of the Amended and Restated Articles of Incorporation of
the Acquiring Corporation;
(4) this Agreement has been duly authorized, executed, and
delivered by the Acquiring Corporation and represents a valid and binding
contract of the Acquiring Corporation, enforceable in accordance with its terms,
subject to the effect of bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and transfer, and other similar laws of general
applicability related to or affecting creditors' rights and to general equity
principles; provided, however, that no opinion need be expressed with respect to
provisions of this Agreement relating to indemnification nor with respect to
provisions of this Agreement intended to limit liability for particular matters
to the Acquiring Fund and its assets;
(5) the execution and delivery of this Agreement did not, and
the consummation of the transactions contemplated by this Agreement will not,
violate the Amended and Restated Articles of Incorporation or Bylaws of the
Acquiring Corporation or any material agreement known to such counsel to which
the Acquiring Corporation is a party or by which it is bound;
(6) to the knowledge of such counsel, no consent, approval,
authorization, or order of any court or governmental authority is required for
the consummation by Acquiring Fund of the transactions contemplated by this
Agreement, except such as have been obtained under the 0000 Xxx, xxxxx
securities laws, the 1940 Act, as amended, and, the rules and regulations under
those statutes; and
(7) the Acquiring Corporation is registered as an investment
company under the 1940 Act and such registration with the SEC as an investment
company under the 1940 Act is in full force and effect.
Such opinion: (i) shall state that while such counsel has not verified,
and is not passing upon and does not assume responsibility for, the accuracy,
completeness, or fairness of any portion of the Form N-14 Registration Statement
relating to the Reorganization or any amendment thereof or supplement thereto,
it has generally reviewed and discussed certain information included therein
with respect to the Acquiring Fund and the Acquiring Corporation with certain
officers of the Acquiring Corporation and that in the course of such review and
discussion no facts came to the attention of such counsel which caused it to
believe that, on the respective effective or clearance dates of the Form N-14
Registration Statement and any amendment thereof or supplement thereto and only
insofar as they relate to information with respect to the Acquiring Corporation
and the Acquiring Fund, the Form N-14 Registration Statement or any amendment
thereof or supplement thereto contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; (ii) shall state that such
counsel does not express any opinion or belief as to the financial statements,
other financial data, statistical data, or information relating to the Acquiring
Corporation or the Acquiring Fund contained or incorporated by reference in the
Form N-14 Registration Statement; and (iii) shall state that such opinion is
solely for the benefit of the Selling Corporation and its Board and officers.
In giving such opinion, counsel may rely upon officers' certificates
and certificates of public officials.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLING FUND AND
THE ACQUIRING FUND. The obligations of the Selling Fund and the Acquiring Fund
to effectuate this Agreement shall be subject to the satisfaction of each of the
following conditions as of the Effective Time:
(a) Any authority from the SEC as may be necessary to permit the
parties to carry out the transactions contemplated by this Agreement shall have
been received.
(b) The Registration Statement on Form N-1A of the Acquiring Fund shall
be effective under the 1933 Act, and, to the best knowledge of the Acquiring
Fund, no investigation or proceeding for that purpose shall have been instituted
or be pending, threatened or contemplated under the 1933 Act.
(c) The Acquiring Fund has filed all documents and paid all fees
required to permit its shares to be offered to the public in all states of the
United States, the Commonwealth of Puerto Rico, and the District of Columbia
(except where such qualifications are not required) so as to permit the transfer
contemplated by this Agreement to be consummated.
(d) The Selling Fund and Acquiring Fund shall have received on or
before the Effective Time an opinion of counsel satisfactory to the Selling Fund
and the Acquiring Fund substantially to the effect that the Reorganization, as a
tax-free reorganization within the meaning of Section 368(a) of the Code, will
have the following U.S. federal income tax consequences for Selling Fund
shareholders, the Selling Fund, and the Acquiring Fund:
(1) No gain or loss will be recognized by the Selling Fund
upon the transfer of its assets in exchange solely for Acquiring Fund Shares and
the assumption by the Acquiring Fund of the Selling Fund's liabilities (except
those, if any, for which specific reserves have been set aside);
(2) No gain or loss will be recognized by the Acquiring Fund
on its receipt of the Selling Fund's assets in exchange for Acquiring Fund
Shares and the assumption by the Acquiring Fund of the Selling Fund's
liabilities (except those, if any, for which specific reserves have been set
aside);
(3) The basis of the Selling Fund's assets in the Acquiring
Fund's hands will be the same as the basis of those assets in the Selling Fund's
hands immediately before the Reorganization;
(4) The Acquiring Fund's holding period for the assets
transferred to the Acquiring Fund by the Selling Fund will include the holding
period of those assets in the Selling Fund's hands immediately before the
Reorganization;
(5) No gain or loss will be recognized by the Selling Fund on
the distribution of Acquiring Fund Shares to the Selling Fund's shareholders in
exchange for Selling Fund Shares;
(6) No gain or loss will be recognized by the Selling Fund's
shareholders as a result of the Selling Fund's distribution of Acquiring Fund
Shares to the Selling Fund's shareholders in exchange for the Selling Fund's
shareholders' Selling Fund Shares;
(7) The basis of the Acquiring Fund Shares received by the
Selling Fund's shareholders will be the same as the basis of that Selling Fund's
shareholders' Selling Fund Shares surrendered in exchange therefor; and
(8) The holding period of the Acquiring Fund Shares received
by the Selling Fund's shareholders will include the Selling Fund's shareholders'
holding period for the Selling Fund's shareholders' Selling Fund Shares
surrendered in exchange for the Acquiring Fund Shares, provided that the Selling
Fund Shares were held as capital assets on the date of the Reorganization.
(e) This Agreement, the Reorganization, and the Articles Amendment
contemplated by this Agreement shall have been approved by the shareholders of
the Selling Fund in the manner required under the Wisconsin Statutes.
(f) The Board of the Acquiring Corporation, at a meeting duly called
for such purpose, shall have authorized the issuance by the Acquiring Fund of
Acquiring Fund Shares as of the Effective Time in exchange for the assets of the
Selling Fund pursuant to the terms and provisions of this Agreement.
(g) Neither the Selling Fund nor the Acquiring Fund (nor the
Corporations) will take any action or cause any action to be taken that is
inconsistent with the treatment of the Reorganization as a reorganization within
the meaning of Section 368(a) of the Code or results in the failure of the
transaction to qualify as a reorganization with the meaning of Section 368(a) of
the Code. At or prior to the Effective Time, the parties will take such action,
or cause such action to be taken, as is reasonably necessary to enable counsel
to deliver the tax opinion contemplated in this Agreement.
9. EFFECTIVE TIME OF THE REORGANIZATION. The exchange of the Selling
Fund's assets for corresponding Acquiring Fund Shares shall be effective as of
the close of market on November 7, 2003, or at such other time and date as fixed
by the mutual consent of the parties (the "Effective Time").
10. TERMINATION. This Agreement and the transactions contemplated by
this Agreement may be terminated and abandoned with respect to the Acquiring
Fund and/or the Selling Fund, without penalty, by resolution of the Board of the
Acquiring Corporation or the Selling Corporation, respectively, or at the
discretion of any duly authorized officer of such Corporations, at any time
prior to the Effective Time, if circumstances should develop that, in the
opinion of such Board or officer, make proceeding with the Agreement
inadvisable. In the event of any such termination, there shall be no liability
for damages on the part of the Acquiring Fund, the Selling Fund, or the
Corporations, or their respective Board or officers.
11. AMENDMENT AND WAIVER. This Agreement may be amended, modified, or
supplemented in such manner as may be mutually agreed upon in writing by the
parties; PROVIDED, THAT no amendment may have the effect of changing the
provisions for determining the number or value of Acquiring Fund Shares to be
paid to the Selling Fund's shareholders under this Agreement to the detriment of
the Selling Fund's shareholders without their further approval. Furthermore,
either party may waive any breach by the other party or the failure to satisfy
any of the conditions to its obligations (this waiver must be in writing and
authorized by any officer of the waiving party with or without the approval of
the party's shareholders).
12. INDEMNIFICATION.
(a) The Acquiring Fund shall indemnify, defend, and hold harmless the
Selling Fund, its directors, officers, employees, and agents against all losses,
claims, demands, liabilities, and expenses, including reasonable legal and other
expenses incurred in defending third-party claims, actions, suits, or
proceedings, arising from any of its representations, warranties, covenants, or
agreements set forth in this Agreement.
(b) The Selling Fund, with respect to any claim asserted prior to the
Effective Time, shall indemnify, defend, and hold harmless the Acquiring Fund,
its directors, officers, employees, and agents against all losses, claims,
demands, liabilities, and expenses, including reasonable legal and other
expenses incurred in defending third-party claims, actions, suits, or
proceedings, arising from any of its representations, warranties, covenants, or
agreements set forth in this Agreement.
13. FEES AND EXPENSES. The Advisor shall be solely liable for its own
expenses incurred in connection with entering into and carrying out the
transactions contemplated by this Agreement, whether or not the transactions
contemplated hereby are consummated.
14. HEADINGS, COUNTERPARTS, ASSIGNMENT.
(a) The article and paragraph headings contained in this Agreement are
for reference purposes only and shall not effect in any way the meaning or
interpretation of this Agreement.
(b) This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original.
(c) This Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors and assigns, but no assignment or
transfer of any rights or obligations shall be made by any party without the
written consent of the other party. Nothing in this Agreement expressed or
implied is intended nor shall be construed to confer upon or give any person,
firm, or corporation (other than the parties and their respective successors and
assigns) any rights or remedies under or by reason of this Agreement.
15. ENTIRE AGREEMENT. The Acquiring Fund and Selling Fund agree that
neither party has made any representation, warranty, or covenant not set forth
in this Agreement and that this Agreement constitutes the entire agreement
between the parties. The representations, warranties, and covenants contained in
this Agreement or in any document delivered pursuant to this Agreement or in
connection with this Agreement shall survive the consummation of the
transactions contemplated under this Agreement.
16. FURTHER ASSURANCES. The Acquiring Fund and Selling Fund shall take
such further action as may be necessary or desirable and proper to consummate
the transactions contemplated by this Agreement.
17. BINDING NATURE OF AGREEMENT. As provided in the Corporations'
Bylaws, as amended and supplemented to date, this Agreement was executed by the
undersigned officers of the respective Corporations, on behalf of the Selling
Fund and the Acquiring Fund, as officers and not individually. The obligations
of this Agreement are not binding upon the undersigned officers individually,
but are binding only upon the assets and property of the respective
Corporations. Moreover, no class or series of either Corporation shall be liable
for the obligations of any other classes or series of the Corporation,
respectively.
18. GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Wisconsin.
[ ]
on behalf of [ ]
Name:
Title:
[ ]
on behalf of [ ]
Name:
Title:
ANNEX 1 TO THE FORM OF AGREEMENT AND PLAN OF REORGANIZATION
TO BE EFFECTIVE UPON FILING WITH THE DEPARTMENT OF FINANCIAL INSTITUTIONS
AMENDMENT TO ARTICLES OF INCORPORATION
OF
STRONG EQUITY FUNDS, INC.
The undersigned ________________ of Strong Equity Funds, Inc. (the
"Corporation"), hereby certifies that in accordance with Section 180.1003 of the
Wisconsin Statutes, the following Amendment was duly adopted by the Board of
Directors of the Corporation on August 1, 2003 and (1) subsequently approved by
the shareholders of the class designated as the Strong Large Cap Core Fund at a
meeting held on October 31, 2003 in order to terminate the class designated as
the Strong Large Cap Core Fund in connection with a reorganization effected
pursuant to the Agreement and Plan of Reorganization between the Corporation and
Strong Conservative Equity Funds, Inc. attached hereto as Exhibit A, and (2)
subsequently approved by the shareholders of the class designated as the Strong
Advisor Mid Cap Growth Fund at a meeting held on October 31, 2003 in order to
terminate the class designated as the Strong Advisor Mid Cap Growth Fund in
connection with a reorganization effected pursuant to a Plan of Reorganization
attached hereto as Exhibit B.
1. Paragraph A of Article IV is hereby amended by deleting Paragraph A
thereof and inserting the following as a new paragraph:
"A. The Corporation shall have the authority to issue an
indefinite number of shares of Common Stock with a par value of $.00001
per share. Subject to the following paragraph the authorized shares are
classified as follows:
CLASS SERIES AUTHORIZED NUMBER
OF SHARES
Strong Advisor Large Company Core Fund Class A Indefinite
Class B Indefinite
Class C Indefinite
Class K Indefinite
Strong Advisor Small Cap Value Fund Class A Indefinite
Class B Indefinite
Class C Indefinite
Class Z Indefinite
Strong Advisor Utilities and Energy Fund Class A Indefinite
Class B Indefinite
Class C Indefinite
Strong Dow 30 Value Fund Investor Class Indefinite
Strong Enterprise Fund Investor Class Indefinite
Advisor Class Indefinite
Institutional Class Indefinite
Class K Indefinite
Strong Growth Fund Investor Class Indefinite
Advisor Class Indefinite
Institutional Class Indefinite
Class C Indefinite
Class K Indefinite
Strong Growth 20 Fund Investor Class Indefinite
Advisor Class Indefinite
Strong Index 500 Fund Investor Class Indefinite
Strong Large Company Growth Fund Investor Class Indefinite
Class K Indefinite
Strong Mid Cap Disciplined Fund Investor Class Indefinite
Strong Technology 100 Fund Investor Class Indefinite
Strong U.S. Emerging Growth Fund Investor Class Indefinite
Strong Value Fund Investor Class Indefinite"
2. Article IV is hereby amended by adding new paragraphs, labeled
Paragraph K and Paragraph L, and inserting the following language:
"K. As of the Effective Time, as defined in the Agreement and
Plan of Reorganization for the reorganization of the Strong Large
Cap Core Fund into the Strong Growth and Income Fund
("Agreement"), each outstanding share of Common Stock of the
Strong Large Cap Core Fund shall be exchanged for Acquiring Fund
Shares (as defined in the Agreement) in accordance with the terms
of the Agreement. Certificates representing shares of the Strong
Large Cap Core Fund shall be surrendered at the time and in the
manner set forth in the Agreement. Any such certificates that
remain outstanding after the Effective Time shall be deemed to be
automatically canceled, and shares represented by such
certificates shall be restored to the status of authorized but
unissued shares and shall be automatically exchanged as noted
above."
"L. As of the Effective Time, as defined in the Plan of
Reorganization for the reorganization of the Strong Advisor Mid
Cap Growth Fund into the Strong Growth Fund ("Plan"), each
outstanding share of Common Stock of the Strong Advisor Mid Cap
Growth Fund shall be exchanged for Acquiring Fund Shares (as
defined in the Plan) in accordance with the terms of the Plan.
Certificates representing shares of the Strong Advisor Mid Cap
Growth Fund shall be surrendered at the time and in the manner set
forth in the Plan. Any such certificates that remain outstanding
after the Effective Time shall be deemed to be automatically
canceled, and shares represented by such certificates shall be
restored to the status of authorized but unissued shares and shall
be automatically exchanged as noted above."
Executed in duplicate this day of , 2003.
STRONG EQUITY FUNDS, INC.
BY: ___________________________
[Name]
[Title]
This instrument was drafted by:
