AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION, dated as of August 25, 2004 (the
"Agreement"), by and between Xxxx Xxxxxxx Variable Series Trust I, a
Massachusetts business trust ("JHVST"), acting on behalf of its Fundamental
Growth, Large Cap Growth B, Fundamental Value B, Mid Cap Value, Small Cap
Growth, Overseas Equity, and Overseas Equity C Funds (each an "Acquired Fund")
and its Large Cap Growth, Fundamental Value, Mid Cap Value B, Small Cap Emerging
Growth, and Overseas Equity B Funds (each an "Acquiring Fund"), and Xxxx Xxxxxxx
Life Insurance Company ("Xxxx Xxxxxxx" or "Adviser"), a Massachusetts
corporation,
WITNESSETH:
WHEREAS, JHVST is an investment company registered with the SEC under the
Investment Company Act that offers separate series of its shares representing
interests in separate investment portfolios for sale to separate accounts of
life insurance companies to support investments under variable annuities and
variable life insurance contracts issued by such companies; and
WHEREAS, Xxxx Xxxxxxx provides investment advisory services to JHVST; and
WHEREAS, Xxxx Xxxxxxx and certain of its affiliates hold record ownership of all
outstanding JHVST shares, either directly or through "separate accounts"
established under applicable insurance law; and
WHEREAS, Xxxx Xxxxxxx and JHVST desire to provide for a reorganization through
the transfer of all of each Acquired Fund's assets to a corresponding Acquiring
Fund, with which it will combine in exchange for the issuance by JHVST of shares
of such Acquiring Fund in the manner set forth in this Agreement and the
assumption by the Acquiring Fund of all of the liabilities of the Acquired Fund;
and
WHEREAS, this Agreement is intended to be and is adopted by the parties hereto
as a Plan of Reorganization within the meaning of Section 368(a) of the Internal
Revenue Code of 1986, as amended (the "Code"); and
NOW, THEREFORE, in consideration of the foregoing premises and the agreements
and undertakings contained in this Agreement, JHVST and Xxxx Xxxxxxx agree as
follows:
ARTICLE 1 DEFINITIONS
SECTION 1.1 Definitions.
For all purposes in this Agreement, the following terms shall have the
respective meanings set forth in this Section 1.1 (such definitions to be
equally applicable to both the singular and plural forms of the terms herein
defined):
"Acquired Fund" refers to each Acquired Fund named above,
"Acquired Fund Shareholders" means the holders of record as of the
Effective Time of the issued and outstanding shares of beneficial interest in an
Acquired Fund.
"Acquired Fund Shareholders Meeting" means a meeting of the shareholders of
an Acquired Fund convened in accordance with applicable law and the Agreement
and Declaration of Trust of JHVST to consider and vote upon the approval of the
Reorganization for that Acquired Fund contemplated by this Agreement.
"Acquired Fund Shares" means the issued and outstanding shares of
beneficial interest in an Acquired Fund.
"Acquiring Fund" refers to each Acquiring Fund named above.
"Acquiring Fund Shares" means shares of the capital stock of an Acquiring
Fund issued pursuant to Section 2.6 of this Agreement.
"Advisers Act" means the Investment Advisers Act of 1940, as amended, and
all rules and regulations of the SEC adopted pursuant thereto.
"Affiliated Person" means an affiliated person as defined in Section
2(a)(3) of the Investment Company Act.
"Agreement" means this Agreement and Plan of Reorganization, together with
any schedules and exhibits attached hereto and all amendments hereto and
thereof.
"Benefit Plan" means any material "employee benefit plan" (as defined in
Section 3(3) of ERISA) and any material bonus, deferred compensation, incentive
compensation, stock ownership, stock purchase, stock option, phantom stock,
vacation, retirement, profit sharing, welfare plans or other plan, arrangement
or understanding maintained or contributed to by JHVST on behalf of an Acquired
Fund, or otherwise providing benefits to any current or former employee, officer
or trustee of JHVST.
"Closing" means the transfer of the assets of an Acquired Fund to an
Acquiring Fund, the assumption of all of the Acquired Fund's liabilities by the
Acquiring Fund and the issuance of the Acquiring Fund Shares directly to the
Acquired Fund Shareholders as described in Section 2.1 of this Agreement.
"Closing Date" means November 1, 2004, or such other date as JHVST's
Chairman shall determine for any Reorganization.
"Code" means the Internal Revenue Code of 1986, as amended, and all rules
and regulations adopted pursuant thereto.
"Custodian" means State Street Bank & Trust Company, acting in its capacity
as custodian for the assets of an Acquiring Fund and the corresponding Acquired
Fund.
2
"Effective Time" means 4:00 p.m. Eastern Time on the Closing Date or
such other time or times as JHVST's Chairman shall determine.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and all rules or regulations adopted pursuant thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and all rules and regulations adopted pursuant thereto.
"Fund Financial Statements" shall have the meaning set forth in Section 3.3
of this Agreement.
"Governmental Authority" means any foreign, United States or state
government, government agency, department, board, commission (including the SEC)
or instrumentality, and any court, tribunal or arbitrator of competent
jurisdiction, and any governmental or non-governmental self-regulatory
organization, agency or authority (including the National Association of
Securities Dealers, Inc., the Commodity Futures Trading Commission, the National
Futures Association, the Investment Management Regulatory Organization Limited
and the Office of Fair Trading).
"Investment Company Act" means the Investment Company Act of 1940, as
amended, and all rules and regulations adopted pursuant thereto.
"JHVST" means Xxxx Xxxxxxx Variable Series Trust I, a Massachusetts
business trust.
"JHVST Registration Statement" means the registration statement on Form
N-1A, as amended, of JHVST (File Nos. 33-2081 and 811-04490).
"Lien" means any pledge, lien, security interest, charge, claim or
encumbrance of any kind.
"Material Adverse Effect" means an effect that would cause a change in the
condition (financial or otherwise), properties, assets or prospects of an entity
having an adverse monetary effect in an amount equal to or greater than $50,000.
"Person" means an individual or a corporation, partnership, joint venture,
association, trust, unincorporated organization or other entity.
"Reorganization" means the acquisition of the assets of an Acquired Fund by
an Acquiring Fund in consideration of the assumption by the Acquiring Fund of
all of the liabilities of the Acquired Fund and the issuance by JHVST of
Acquiring Fund Shares directly to Acquired Fund Shareholders as described in
this Agreement, and the termination of the Acquired Fund's status as a
designated series of shares of JHVST.
"Required Shareholder Vote" shall have the meaning set forth in Section
3.17 of this Agreement.
3
"Return" means any return, report or form or any attachment thereto
required to be filed with any taxing authority.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and all
rules and regulations adopted pursuant thereto.
"Tax" means any tax or similar governmental charge, impost or levy
(including income taxes, alternative minimum tax and estimated tax, franchise
taxes, transfer taxes or fees, sales taxes, use taxes, gross receipts taxes,
value added taxes, employment taxes, excise taxes, ad valorem taxes, property
taxes, withholding taxes, payroll taxes, minimum taxes, or windfall profit
taxes), together with any related penalties, fines, additions to tax or
interest, imposed by the United States or any state, county, local or foreign
government or subdivision or agency thereof.
ARTICLE 2 TRANSFER OF ASSETS
SECTION 2.1 Reorganizations.
At the Effective Time, all of the assets of each Acquired Fund shall be
delivered to the Custodian for, or transferred on JHVST's books and records to,
the account of a corresponding Acquiring Fund, as follows:
Acquired Fund Corresponding Acquiring Fund
Fundamental Growth Large Cap Growth
Large Cap Growth B Large Cap Growth
Fundamental Value B Fundamental Value
Mid Cap Value Mid Cap Value B
Small Cap Growth Small Cap Emerging Growth
Overseas Equity Overseas Equity B
Overseas Equity C Overseas Equity B
Such transfer shall be in exchange for the assumption by the Acquiring Fund of
all of the liabilities of any kind of the Acquired Fund and delivery by JHVST
directly to the holders of record as of the Effective Time of the issued and
outstanding shares of the Acquired Fund (including, if applicable, fractional
shares rounded to the nearest thousandth) of a number of Acquiring Fund shares
(including, if applicable, fractional shares rounded to the nearest thousandth),
having an aggregate net asset value equal to the net value of the assets of the
Acquired Fund so transferred, assigned and delivered, all determined and
adjusted as provided in Section 2.2 below. The obligation to deliver and
transfer assets as set forth in this Section 2.1 shall be satisfied only if the
Acquiring Fund receives good and marketable title to such assets free and clear
of all Liens.
4
SECTION 2.2 Computation of Net Asset Value.
(a) The net asset value of Acquiring Fund Shares, and the net value of the
assets of the corresponding Acquired Fund, shall be determined as of the
Effective Time.
(b) The net asset value of an Acquiring Fund's Shares shall be computed in
accordance with the policies and procedures of the Acquiring Fund as described
in the JHVST Registration Statement.
(c) The net value of the assets of an Acquired Fund to be transferred to an
Acquiring Fund pursuant to this Agreement shall be computed in accordance with
the policies and procedures of the Acquired Fund as described in the JHVST
Registration Statement.
(d) All computations of value regarding the net assets of an Acquired Fund
and the net asset value of the corresponding Acquiring Fund Shares to be issued
pursuant to this Agreement shall be made by JHVST and its service providers in
the customary manner used in computing those Funds' net asset values each day.
JHVST agrees to use commercially reasonable efforts to resolve any material
differences, as between the Funds, in the prices of portfolio securities
determined in accordance with their respective pricing policies and procedures.
SECTION 2.3 Valuation.
The net assets of each Acquired Fund and the net asset value per share of the
Acquiring Fund's Shares shall be valued as of the Effective Time. The share
transfer books of each Acquired Fund will be permanently closed as of the
Effective Time, and only requests for the redemption of shares of the Acquired
Fund received in proper form prior to the Effective Time shall be accepted by
the Acquired Fund. Purchase and redemption requests thereafter received by the
Acquired Fund shall be deemed to be purchase and redemption requests for the
corresponding Acquiring Fund Shares, as applicable (assuming that the
transaction contemplated by this Agreement is consummated).
SECTION 2.4 Delivery and Transfer.
(a) Assets held by an Acquired Fund that are not already held by the
Custodian shall be delivered by JHVST to the Custodian on the Closing Date. No
later than three (3) business days preceding the Closing Date, JHVST shall
instruct the Custodian to transfer these and all other Acquired Fund assets to
the account of the corresponding Acquiring Fund as of the Effective Time. The
assets so delivered shall be duly endorsed or in other proper form for transfer
in such condition as to constitute a good delivery thereof, and shall be
accompanied by all necessary state stock transfer stamps, if any, or a check for
the appropriate purchase price thereof. An Acquired Fund's cash that is not
already held by the Custodian shall be delivered to the Custodian for the
account of the Acquiring Fund on the Closing Date and shall be in the form of
currency or wire transfer in Federal funds, payable to the order of the account
of the Acquiring Fund at the Custodian.
(b) If, on the Closing Date, an Acquired Fund is unable to make delivery in
the manner contemplated by Section 2.4(a) of securities held by the Acquired
Fund for the reason that any of such securities purchased prior to the Closing
Date have not yet been delivered to the Acquired
5
Fund or its broker, then JHVST shall waive the delivery requirements of Section
2.4(a) with respect to said undelivered securities if the Acquired Fund has
delivered to the Custodian by or on the Closing Date, and with respect to said
undelivered securities, executed copies of an agreement of assignment and escrow
agreement and due bills executed on behalf of said broker or brokers, together
with such other documents as may be required by JHVST or the Custodian,
including brokers' confirmation slips.
SECTION 2.5 Termination of Series.
As soon as reasonably practicable after the Closing Date, the status of an
Acquired Fund as a designated series of shares of JHVST shall be terminated;
provided, however, that the termination of the status of the Acquired Fund as a
series of shares of JHVST shall not be required if the Reorganization as to that
Acquired Fund shall not have been consummated.
SECTION 2.6 Issuance of Acquiring Fund Shares.
At the Effective Time, the Acquired Fund Shareholders of record as of the
Effective Time holding Acquired Fund Shares shall be issued that number of full
and fractional shares of the corresponding Acquiring Fund having a net asset
value equal to the net asset value of the Acquired Fund Shares held by the
Acquired Fund Shareholders at the Effective Time. All issued and outstanding
shares of beneficial interest in the Acquired Fund shall thereupon be canceled
on the books of JHVST. JHVST shall provide instructions to Xxxx Xxxxxxx, as the
transfer agent of JHVST, with respect to the Acquiring Fund Shares to be issued
to the corresponding Acquired Fund Shareholders. Xxxx Xxxxxxx shall record on
JHVST's books the ownership of Acquiring Fund Shares by the corresponding
Acquired Fund Shareholders and shall forward a confirmation of such ownership to
the Acquired Fund Shareholders. No redemption or repurchase of such shares
credited to former Acquired Fund Shareholders in respect of the corresponding
Acquired Fund Shares represented by any unsurrendered share certificates shall
be permitted until such certificates have been surrendered to JHVST for
cancellation, or if such certificates are lost or misplaced, until lost
certificate affidavits have been executed and delivered to JHVST.
SECTION 2.7 Investment Securities.
On or prior to the Closing Date, the Acquired Fund shall deliver a list setting
forth the securities the Acquired Fund then owns, together with the respective
Federal income tax bases thereof. The Acquired Fund shall provide, on or before
the Closing Date, detailed tax basis accounting records for each security to be
transferred to the corresponding Acquiring Fund pursuant to this Agreement. Such
records shall be prepared in accordance with the requirements for specific
identification tax lot accounting and clearly reflect the bases used for
determination of gain and loss realized on the sale of any security transferred
to the Acquiring Fund hereunder. Such records shall be made available by the
Acquired Fund prior to the Closing Date for inspection by the Treasurer (or his
designee) or the auditors of the Acquiring Fund upon reasonable request.
SECTION 2.8 Liabilities.
The Acquired Fund shall use reasonable best efforts to ensure that it has no
liabilities outstanding as of the Effective Time, other than such liabilities as
are ordinary and customary in connection with its day-to-day operations and are
properly reflected on its books and records.
6
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF JHVST ON BEHALF OF THE ACQUIRED
FUNDS AND THE ACQUIRING FUNDS
JHVST, on behalf of the Acquired Funds and the Acquiring Funds (the "Funds")
represents and warrants that:
SECTION 3.1 Organization; Authority.
JHVST is duly organized, validly existing and in good standing as a business
trust under Massachusetts law, with all requisite trust power and authority to
enter into this Agreement and perform its obligations hereunder.
SECTION 3.2 Registration and Regulation of JHVST; Compliance.
JHVST is duly registered with the SEC as an investment company under the
Investment Company Act, and, to the extent legally required, all Fund Shares
which have been or are being offered for sale have been duly registered under
the Securities Act and have been duly registered or qualified under the
securities laws of each state or other jurisdiction in which such shares have
been or are being offered for sale, and no action has been taken by JHVST to
revoke or rescind any such registration or qualification. The Funds are in
compliance in all material respects with all applicable laws, rules and
regulations, including, without limitation, the Investment Company Act, the
Securities Act, the Exchange Act and all applicable state securities laws. The
Funds are in compliance in all material respects with the investment policies
and restrictions applicable to them set forth in the JHVST Registration
Statement currently in effect. The values of the net assets of the Funds are
determined using portfolio valuation methods that comply in all material
respects with the requirements of the Investment Company Act and the policies of
the Funds, and all purchases and redemptions of Fund Shares have been effected
at the net asset value per share calculated in such manner.
SECTION 3.3 Books, Records and Financial Statements.
The books of account and related records of each Fund fairly reflect in
reasonable detail its assets, liabilities and transactions in accordance with
generally accepted accounting principles applied on a consistent basis. The
audited financial statements for the fiscal year ended December 31, 2003 and
prior years of each Fund contained in the JHVST Registration Statement (the
"Fund Financial Statements") present fairly in all material respects the
financial position of the respective Funds as of the dates indicated and the
results of operations and changes in net assets for those periods in accordance
with generally accepted accounting principles applied on a consistent basis for
those periods.
SECTION 3.4 No Material Adverse Changes; Contingent Liabilities.
Since December 31, 2003, no material adverse change has occurred in the
financial condition, results of operations, business, assets or liabilities of
any Fund or the status of any Fund as a regulated investment company under the
Code, other than changes resulting from any change in general conditions in the
financial or securities markets, from the performance of any investments made by
the Fund, from a Fund's efforts to align its investment portfolio with that of
7
the other Fund with which it is reorganizing, or occurring in the ordinary
course of business of the Fund or JHVST. There are no contingent liabilities of
either Fund not disclosed in the Fund Financial Statements which are required to
be therein disclosed in accordance with generally accepted accounting
principles.
SECTION 3.5 Fund Shares; Business Operations.
(a) All Fund Shares that have been (or are being) offered have been (or
will be) duly authorized and validly issued and are fully paid and
non-assessable.
(b) No Fund has outstanding any warrants, options, convertible
securities or any other type of right pursuant to which any Person could acquire
Fund Shares, except for any right of investors to acquire Fund Shares at net
asset value in the normal course of JHVST's business as a series of an open-end
management investment company operating under the Investment Company Act.
(c) Each Acquired Fund has conducted its historic business within the
meaning of Section 1.368-1(d)(2) of the Income Tax Regulations under the Code.
In anticipation of its Reorganization, an Acquired Fund will not dispose of
assets that, in the aggregate, will result in less than fifty percent (50%) of
its historic business assets (within the meaning of Section 1.368-1(d) of those
regulations) being transferred to the Acquiring Fund.
SECTION 3.6 Accountants.
Ernst & Young, LLP, which has reported upon the Fund Financial Statements, are
independent public accountants as required under applicable SEC accounting
requirements.
SECTION 3.7 Binding Obligation.
Assuming this Agreement has been duly executed and delivered by Xxxx Xxxxxxx, it
constitutes the legal, valid and binding obligation of JHVST in accordance with
its terms, except as the enforceability hereof may be limited by bankruptcy,
insolvency, reorganization or similar laws relating to or affecting creditors'
rights generally, or by general equity principles (whether applied in a court of
law or a court of equity and including limitations on the availability of
specific performance or other equitable remedies).
SECTION 3.8 Due Authorizations; No Breaches or Defaults.
The execution and delivery of this Agreement by JHVST on behalf of the Funds and
the performance by JHVST of its obligations hereunder has been duly authorized,
by all necessary corporate action on the part of JHVST, subject to the Acquired
Fund Shareholders' approval of each Reorganization, and (i) will not, result in
any violation of the Agreement and Declaration of Trust or by-laws of JHVST and
(ii) will not result in a breach of any of the terms or provisions of, or
constitute (with or without the giving of notice or the lapse of time or both) a
default under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to the loss of a material benefit under, or
result in the creation or imposition of any Lien upon any property or assets of
the any Fund (except for such breaches or defaults or Liens that would not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect)
8
under (A) any indenture, mortgage or loan agreement or any other material
agreement or instrument to which JHVST is a party or by which it may be bound
and which relates to the assets of either Fund or to which any property of
either Fund may be subject; (B) any Permit (as defined below); or (C) any
existing applicable law, rule, regulation, judgment, order or decree of any
Governmental Authority having jurisdiction over JHVST or any property of any
Fund.
SECTION 3.9 Governmental Authorizations.
Other than those which shall have been obtained or made on or prior to the
Closing Date and those that must be made after the Closing Date to comply with
Section 2.5 of this Agreement, no authorization or approval or other action by,
and no notice to or filing with, any Governmental Authority will be required to
be obtained or made by JHVST, on behalf of any Fund, in connection with the due
execution and delivery by JHVST of this Agreement and the consummation by JHVST
of the transactions contemplated hereby.
SECTION 3.10 Permits.
JHVST has in full force and effect all approvals, consents, authorizations,
certificates, filings, franchises, licenses, notices, permits and rights of
Governmental Authorities (collectively, "Permits") necessary for it to conduct
its business as presently conducted as it relates to either Fund, and there has
occurred no default under any Permit, except for the absence of Permits and for
defaults under Permits the absence or default of which would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
To the knowledge of JHVST, there are no proceedings relating to the suspension,
revocation or modification of any Permit, except for such that would not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.
SECTION 3.11 No Actions, Suits or Proceedings.
(a) There is no pending action, litigation or proceeding, nor, to the
knowledge of JHVST, has any litigation been overtly threatened in writing or, if
probable of assertion, orally, against JHVST, or any Fund, before any
Governmental Authority which questions the validity or legality of this
Agreement or of the actions contemplated hereby or which seeks to prevent the
consummation of the transactions contemplated hereby, including the
Reorganization.
(b) There are no judicial, administrative or arbitration actions,
suits, or proceedings instituted or pending or, to the knowledge of JHVST,
threatened in writing or, if probable of assertion, orally, against JHVST
affecting any property, asset, interest or right of any Fund, that could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect with respect to that Fund. There are not in existence on the date
hereof any plea agreements, judgments, injunctions, consents, decrees,
exceptions or orders that were entered by, filed with or issued by Governmental
Authority relating to JHVST's conduct of the business of any Fund affecting in
any significant respect the conduct of such business. JHVST is not, and has not
been, to the knowledge of JHVST, the target of any investigation by the SEC or
any state securities administrator with respect to its conduct of the business
of any Fund.
9
SECTION 3.12 Contracts.
Neither JHVST nor any Fund is in default under any contract, agreement,
commitment, arrangement, lease, insurance policy or other instrument to which it
is a party and which involves or affects the assets of any Fund, by which the
assets, business, or operations of a Fund may be bound or affected, or under
which it or the assets, business or operations of a Fund receives benefits, and
which default could reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect, and, to the knowledge of JHVST, there has not
occurred any event that, with the lapse of time or the giving of notice or both,
would constitute such a default.
SECTION 3.13 Properties and Assets.
Each Fund had good and marketable title to all properties and assets reflected
in the Fund Financial Statements as owned by it, free and clear of all Liens,
except as described in the Fund Financial Statements. None of any Fund's assets
are subject to any impairment of title or lien that has not been incurred in the
regular course of the Fund's investment operations or that is not of a type
described in the Fund Financial Statements.
SECTION 3.14 Taxes.
(a) Each Fund has elected to be a regulated investment company under
Subchapter M of the Code and has qualified as such for each taxable year since
inception and has at all times since inception satisfied the requirements of
Part I of Subchapter M of the Code to maintain such qualification. No Fund has
earnings and profits accumulated in any taxable year in which the provisions of
Subchapter M of the Code did not apply to it. In order to (i) ensure continued
qualification of the Acquired Fund as a "regulated investment company" for tax
purposes and (ii) eliminate any tax liability of an Acquired Fund arising by
reason of undistributed investment company taxable income or net capital gain,
JHVST will declare on or prior to the Closing Date to the shareholders of the
Acquired Fund a dividend or dividends that, together with all previous such
dividends, shall have the effect of distributing (A) all of the Acquired Fund's
investment company taxable income (determined without regard to any deductions
for dividends paid) for the taxable year ended December 31, 2003 and for the
short taxable year beginning on January 1, 2004 and ending on the Closing Date
and (B) all of the Acquired Fund's net capital gain recognized in its taxable
year ended December 31, 2004 and in such short taxable year (after reduction for
any capital loss carryover).
(b) Each Fund has timely filed all Returns required to be filed by it
and all Taxes with respect thereto have been paid, except where the failure so
to file or so to pay would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect. Adequate provision has been made
in the Fund Financial Statements for all Taxes in respect of all periods ended
on or before the date of such financial statements, except where the failure to
make such provision would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect. No deficiencies for any Taxes have
been proposed, assessed or asserted in writing by any taxing authority against
any Fund, and no deficiency has been proposed, assessed or asserted, in writing,
where such deficiency would reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect. No waivers of the time to assess
any such Taxes are outstanding; nor are any written requests for such waivers
pending,
10
and no Returns of any Fund are currently being or have been audited with respect
to income taxes or other Taxes by any Federal, state, local or foreign Tax
authority.
(c) The fiscal year of no Fund has been changed for tax purposes since
the date on which it commenced operations.
(d) There is no intercorporate indebtedness existing between an
Acquiring Fund and the corresponding Acquired Fund that was issued, acquired, or
will be settled at a discount.
(e) The fair market value of the assets of each Acquired Fund
transferred to the corresponding Acquiring Fund will equal or exceed the sum of
the liabilities assumed by the Acquiring Fund, plus the amount of liabilities,
if any, to which the transferred assets are subject.
(f) Neither any Acquired Fund nor any Acquiring Fund is under the
jurisdiction of a court in a United States Code Title 11 or similar case within
the meaning of Section 368(a)(3)(A) of the Code.
(g) Immediately before the Reorganization, not more than 25 percent of
the value of the total assets of each Acquired Fund will be invested in the
stock or securities of any one issuer, and not more than 50 percent of the value
of the Acquired Fund will be invested in the stock or securities of five or
fewer issuers.
SECTION 3.15 Benefit and Employment Obligations.
No Fund has any obligation to provide any post-retirement or post-employment
benefit to any Person, including but not limited to under any Benefit Plan, and
no Fund has any obligation to provide unfunded deferred compensation or other
unfunded or self-funded benefits to any person.
SECTION 3.16 Brokers.
No broker, finder or similar intermediary has acted for or on behalf of JHVST in
connection with this Agreement or the transactions contemplated hereby, and no
broker, finder, agent or similar intermediary is entitled to any broker's,
finder's or similar fee or other commission in connection therewith based on any
agreement, arrangement or understanding with JHVST or any action taken by it.
SECTION 3.17 Voting Requirements.
The vote of a majority of the shares of each Acquired Fund cast at a meeting at
which a quorum is present (the "Required Shareholder Vote") is the only vote of
the holders of any class or series of shares of beneficial interest in the
Acquired Fund necessary to approve the Reorganization for that Fund.
SECTION 3.18 State Takeover Statutes.
No state takeover statute or similar statute or regulation applies or purports
to apply to the Reorganization, this Agreement or any of the transactions
contemplated by this Agreement.
11
SECTION 3.19 Books and Records.
The books and records of JHVST relating to the Funds, reflecting, among other
things, the purchase and sale of Acquired Fund Shares, the number of issued and
outstanding shares owned by the Acquired Fund Shareholders, and the state or
other jurisdiction in which such shares were offered and sold, are complete and
accurate in all material respects.
SECTION 3.20 Prospectus and Statement of Additional Information.
The current prospectus and statement of additional information for each Fund as
of the date on which it was issued did not contain, and as supplemented by any
supplement thereto that has been duly filed with the SEC, do not contain, any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.
SECTION 3.21 No Distribution.
No Acquiring Fund Shares are being acquired for the purpose of any distribution
thereof, other than in accordance with the terms of this Agreement.
SECTION 3.22 Liabilities of the Acquired Fund.
The liabilities of each Acquired Fund that are to be assumed by the
corresponding Acquiring Fund in connection with the Reorganization, or to which
the assets of the Acquired Fund to be transferred in the Reorganization are
subject, were incurred by the Acquired Fund in the ordinary course of its
business. The fair market value of the assets of each Acquired Fund to be
transferred to the corresponding Acquiring Fund in the Reorganization will equal
or exceed the sum of the liabilities to be assumed by the Acquiring Fund plus
the amount of liabilities, if any, to which such transferred assets will be
subject.
SECTION 3.23 Value of Shares.
The fair market value of Acquiring Fund Shares received by Acquired Fund
Shareholders in each Reorganization will be approximately equal to the fair
market value of the Acquired Fund Shares constructively surrendered in exchange
therefor.
SECTION 3.24 Expenses.
Each Acquiring Fund will pay all of JHVST's expenses of any Reorganization to
which that Acquiring Fund is a party.
SECTION 3.25 Consideration for Shares.
No consideration other than the Acquiring Fund Shares (and an Acquiring Fund's
assumption of the corresponding Acquired Fund's liabilities, including for this
purpose all liabilities to which the assets of the Acquired Fund are subject)
will be issued in exchange for the assets of the Acquired Fund acquired by the
Acquiring Fund in connection with the Reorganization.
12
SECTION 3.26 Representations Concerning the Reorganizations.
(a) JHVST has no plan or intention to reacquire any of the Acquiring
Fund Shares issued in a Reorganization, except to the extent that the Acquiring
Fund is required by the Investment Company Act to redeem any of its shares
presented for redemption at net asset value in the ordinary of its business as
an open-end, management investment company.
(b) No Acquiring Fund has any plan or intention to sell or otherwise
dispose of any of the assets of the Acquired Fund acquired in the
Reorganization, other than in the ordinary course of its business and to the
extent necessary to maintain its status as a "regulated investment company"
under the Code.
(c) Following a Reorganization, the Acquiring Fund will continue the
"historic business" (within the meaning of Section 1.368-1(d) of the Income Tax
Regulations under the Code) of the Acquired Fund from which the Acquiring Fund
acquired assets in the Reorganization or use a significant portion of the
Acquired Fund's historic business assets in its business.
(d) Immediately before a Reorganization, not more than 25 percent of
the value of the total assets of the Acquiring Fund will be invested in the
stock or securities of any one issuer, and not more than 50 percent of the value
of the total assets of the Acquiring Fund will be invested in the stock or
securities of five or fewer issuers.
SECTION 3.27 Registration of Acquiring Fund Shares.
(a) On the date hereof, the shares of beneficial interest of JHVST are
divided into 31 portfolios, including the Acquiring and the Acquired Funds.
Under its Declaration of Trust, JHVST is authorized to issue an unlimited number
of Shares and, from time to time, combine Shares without thereby changing the
proportionate beneficial interests in JHVST.
(b) The Acquiring Fund Shares to be issued pursuant to Section 2.6 will
on the Closing Date be duly registered under the Securities Act by a
Registration Statement on Form N-14 of JHVST then in effect.
(c) The Acquiring Fund Shares to be issued pursuant to Section 2.6 are
duly authorized and on the Closing Date will be validly issued and fully paid
and non-assessable and will conform to the description thereof contained in the
Registration Statement on Form N-14 then in effect.
(d) The combined proxy statement/prospectus (the "Combined Proxy
Statement/Prospectus") forming a part of JHVST's Registration Statement on Form
N-14 shall be furnished to Acquired Fund Shareholders entitled to vote at any
Acquired Fund Shareholders Meeting. The Combined Proxy Statement/Prospectus and
related Statement of Additional Information of each Acquiring Fund, when they
become effective, shall conform to the applicable requirements of the Securities
Act and the Investment Company Act and shall not 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.
13
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF XXXX XXXXXXX
Xxxx Xxxxxxx represents and warrants as follows:
SECTION 4.1 Organization; Authority.
Xxxx Xxxxxxx is a corporation duly organized, validly existing and in good
standing under Massachusetts law, with all requisite corporate power and
authority to enter into this Agreement and perform its obligations hereunder.
SECTION 4.2 Continuity of Ownership.
There is no plan or intention by the shareholders of any Acquired Fund to redeem
or otherwise dispose of a number of the Acquiring Fund Shares received by it in
connection with a Reorganization that would reduce the Acquired Fund
Shareholders' ownership of voting stock of the Acquiring Fund to a number of
shares having a value, as of the Closing Date, of less than fifty percent (50%)
of the value of all of the formerly outstanding shares of the Acquired Fund as
of the same date. For purposes of this representation, any Acquired Fund Shares
exchanged for cash or other property or exchanged for cash in lieu of fractional
shares of the Acquiring Fund will be treated as outstanding Acquired Fund Shares
on the date of the Reorganization. Moreover, Acquired Fund Shares and Acquiring
Fund Shares held by Acquired Fund Shareholders and otherwise sold, redeemed or
disposed of prior or subsequent to the Reorganization will be considered in
making this representation, except for Acquired Fund Shares or Acquiring Fund
Shares which have been, or will be, redeemed by the Acquired Fund or the
Acquiring Fund in the ordinary course of its business as a series of an
open-end, management investment company under the Investment Company Act.
SECTION 4.3 Binding Obligation.
Assuming this Agreement has been duly executed and delivered by JHVST, it
constitutes the legal, valid and binding obligation of Xxxx Xxxxxxx, in
accordance with its terms, except as the enforceability hereof may be limited by
bankruptcy, insolvency, reorganization or similar laws relating to or affecting
creditors' rights generally, or by general equity principles (whether applied in
a court or law or a court of equity and including limitations on the
availability of specific performance or other equitable remedies).
SECTION 4.4 Due Authorization; No Breaches or Defaults.
The execution and delivery of this Agreement by Xxxx Xxxxxxx and performance by
Xxxx Xxxxxxx of its obligations hereunder have been duly authorized by all
necessary corporate action on the part of Xxxx Xxxxxxx and (i) do not, and on
the Closing Date will not, result in any violation of the Certificate of
Incorporation or by-laws of Xxxx Xxxxxxx and (ii) do not, and on the Closing
Date will not, result in a breach of any of the terms or provisions of, or
constitute (with or without the giving of notice or the lapse of time or both) a
default under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to the loss of a material benefit under, or
result in the creation or imposition of any Lien upon any property or assets of
Xxxx Xxxxxxx (except for such breaches or defaults or Liens that would not
reasonably be
14
expected, individually or in the aggregate, to have a Material Adverse Effect)
under (A) any indenture, mortgage or loan agreement or any other material
agreement or instrument to which JHVST is a party or by which it may be bound
and which relates to the assets of Xxxx Xxxxxxx or to which any properties of
Xxxx Xxxxxxx may be subject; (B) any Permit; or (C) any existing applicable law,
rule, regulation, judgment, order or decree of any Governmental Authority having
jurisdiction over Xxxx Xxxxxxx or any of its property.
SECTION 4.5 Governmental Authorizations.
Other than those which shall have been obtained or made on or prior to the
Closing Date, no authorization or approval or other action by, and no notice to,
or filing with, any Governmental Authority will be required to be obtained or
made by Xxxx Xxxxxxx in connection with the due execution and delivery by Xxxx
Xxxxxxx of this Agreement and the consummation by Xxxx Xxxxxxx of the
transactions contemplated hereby.
SECTION 4.6 Permits.
Xxxx Xxxxxxx has in full force and effect all Permits necessary for it to
conduct its business as presently conducted as it relates to the
Reorganizations, and there has occurred no default under any Permit, except for
the absence of Permits and for defaults under Permits the absence or default of
which would not reasonably be expected, individually or in the aggregate, to
adversely affect the interest of any other party to a Reorganization. To the
knowledge of Xxxx Xxxxxxx there are no proceedings relating to the suspension,
revocation or modification of any Permit, except for such that would not
reasonably be expected, individually or in the aggregate, to adversely affect
the interest of any other party to a Reorganization.
SECTION 4.7 No Actions, Suits or Proceedings.
(a) There is no pending action, suit or proceeding, nor, to the
knowledge of Xxxx Xxxxxxx, has any litigation been threatened in writing or, if
probable of assertion, orally, against Xxxx Xxxxxxx before any Governmental
Authority which questions the validity or legality of this Agreement or of the
transactions contemplated hereby, or which seeks to prevent the consummation of
the transactions contemplated hereby, including the Reorganizations.
(b) There are no judicial, administrative or arbitration actions,
suits, or proceedings instituted or pending or, to the knowledge of Xxxx
Xxxxxxx, threatened in writing or, if probable of assertion, orally, against
Xxxx Xxxxxxx, affecting any property, asset, interest or right of Xxxx Xxxxxxx
that could reasonably be expected, individually or in the aggregate, to
adversely affect the interests of any other party to the Reorganizations. There
are not in existence on the date hereof any plea agreements, judgments,
injunctions, consents, decrees, exceptions or orders that were entered by, filed
with or issued by any Governmental Authority relating to Xxxx Xxxxxxx'x conduct
of its business that could reasonably be expected, individually or in the
aggregate, to adversely affect the interests of any other party to any
Reorganization. Xxxx Xxxxxxx is not, and has not been, to the knowledge of Xxxx
Xxxxxxx, the target of any investigation by the SEC or any state securities
administrator with respect to its conduct of the business of JHVST.
15
SECTION 4.8 Brokers.
No broker, finder or similar intermediary has acted for or on behalf of Xxxx
Xxxxxxx in connection with this Agreement or the transactions contemplated
hereby, and no broker, finder, agent or similar intermediary is entitled to any
broker's, finder's or similar fee or other commission in connection therewith
based on any agreement, arrangement or understanding with Xxxx Xxxxxxx or any
action taken by it.
ARTICLE 5 COVENANTS
SECTION 5.1 Conduct of Business.
(a) From the date of this Agreement up to and including the Closing
Date (or, if earlier, the date upon which this Agreement is terminated pursuant
to Article 7), JHVST shall conduct the business of each Acquired Fund only in
the ordinary course and substantially in accordance with past practices, and
shall use its reasonable best efforts to preserve intact its business
organization and material assets and maintain the rights, franchises and
business and customer relations necessary to conduct the business of the
Acquired Fund in the ordinary course in all material respects.
(b) From the date of this Agreement up to and including the Closing
Date (or, if earlier, the date upon which this Agreement is terminated pursuant
to Article 7), JHVST shall conduct the business of each Acquiring Fund only in
the ordinary course and substantially in accordance with past practices, and
shall use its reasonable best efforts to preserve intact its business
organization and material assets and maintain the rights, franchises and
business relations necessary to conduct the business operations of the Acquiring
Fund in the ordinary course in all material respects.
SECTION 5.2 Expenses.
Xxxx Xxxxxxx shall bear, or arrange for another person other than JHVST or any
Fund to bear, any expenses incurred in connection with this Agreement and the
Reorganization and other transactions contemplated hereby that are not properly
allocable expenses of JHVST.
SECTION 5.3 Further Assurances.
Each of the parties hereto shall execute such documents and other papers and
perform such further acts as may be reasonably required to carry out the
provisions hereof and the transactions contemplated hereby. Each such party
shall, on or prior to the Closing Date, use its reasonable best efforts to
fulfill or obtain the fulfillment of the conditions precedent to the
consummation of each Reorganization, including the execution and delivery of any
documents, certificates, instruments or other papers that are reasonably
required for the consummation of the Reorganization.
SECTION 5.4 Notice of Events.
Each of JHVST and Xxxx Xxxxxxx shall give prompt notice to the other of (a) the
occurrence or nonoccurrence of any event of which it obtains knowledge and which
would be likely to result in
16
any of the conditions specified in (i) in the case of an Acquired Fund, Sections
6.1 and 6.2 or (ii) in the case of an Acquiring Fund, Sections 6.2 and 6.3, not
being satisfied so as to permit the consummation of the Reorganization and (b)
any material failure or expected material failure on its part to comply with or
satisfy any covenant, condition or agreement to be complied with or satisfied by
it hereunder; provided, however, that the delivery of any notice pursuant to
this Section 5.4 shall not limit or otherwise affect the remedies available
hereunder to any party.
SECTION 5.5 Access to Information.
(a) Each Acquired Fund will, during regular business hours and on
reasonable prior notice, allow the corresponding Acquiring Fund and its
authorized representatives reasonable access to the books and records of the
Acquired Fund pertaining to the assets of the Acquired Fund and to officers of
the Acquired Fund knowledgeable thereof; provided, however, that any such access
shall not significantly interfere with the business or operations of JHVST.
(b) Each Acquiring Fund will, during regular business hours and on
reasonable prior notice, allow the corresponding Acquired Fund and its
authorized representatives reasonable access to the books and records of the
Acquiring Fund pertaining to the assets of the Acquiring Fund and to officers of
JHVST knowledgeable thereof; provided, however, that any such access shall not
significantly interfere with the business or operations of JHVST.
SECTION 5.6 Consents, Approvals and Filings.
Each of JHVST and Xxxx Xxxxxxx shall make all filings required of it, as soon as
reasonably practicable, including those required under the Securities Act, the
Exchange Act, the Investment Company Act and the Advisers Act, in order to
facilitate prompt consummation of the Reorganizations and any other actions
contemplated by this Agreement. In addition, each of JHVST and Xxxx Xxxxxxx
shall use its reasonable best efforts (i) to comply as promptly as reasonably
practicable with all requirements of Governmental Authorities applicable to it
in relation to the Reorganizations and any other actions contemplated herein and
(ii) to obtain as promptly as reasonably practicable all necessary permits,
orders or other consents of Governmental Authorities and consents of all third
parties required of it for the consummation of the Reorganizations and any other
actions contemplated herein.
SECTION 5.7 Submission of Reorganizations to Shareholders.
JHVST shall take all action necessary in accordance with applicable law and its
Agreement and Declaration of Trust and by-laws to convene an Acquired Fund
Shareholders Meeting to consider approval of each Reorganization. JHVST shall
use its reasonable best efforts to hold the Acquired Fund Shareholders Meeting
or Meetings as soon as practicable after the date hereof. Xxxx Xxxxxxx shall
take all action necessary to offer holders of variable annuity contracts and
variable life insurance policies appropriate opportunity to give voting
instructions concerning approval of the Reorganizations.
17
ARTICLE 6 CONDITIONS PRECEDENT TO THE REORGANIZATIONS
SECTION 6.1 Conditions Precedent to JHVST's Obligations With Respect to the
Acquired Funds
The obligation of JHVST to consummate a Reorganization on behalf of an Acquired
Fund is subject to the satisfaction, at or prior to the Closing Date, of the
following conditions, any of which may be waived in writing by JHVST and Xxxx
Xxxxxxx.
(a) The representations and warranties of JHVST on behalf of the Acquiring
Fund participating in the Reorganization set forth in this Agreement shall be
true and correct in all material respects as of the date of this Agreement and
as of the Closing Date as though all such representations and warranties had
been made as of the Closing Date.
(b) JHVST shall have complied with and satisfied in all material respects
all agreements and conditions that this Agreement requires JHVST, on behalf of
the Acquiring Fund, to comply with or satisfy at or prior to the Closing Date.
SECTION 6.2 Conditions Precedent to JHVST's Obligations With Respect to Both
Funds.
The obligations of JHVST on behalf of the Acquired Fund or the Acquiring Fund to
consummate any Reorganization are subject to the satisfaction, at or prior to
the Closing Date, of the following conditions (in addition to any other
conditions applicable to a Fund as set forth in Section 6.1 or 6.3), any of
which may be waived in writing by JHVST and (except for (b) and (d) below) Xxxx
Xxxxxxx, but only if and to the extent that such waiver is made with respect to
both an Acquired Fund and the Acquiring Fund:
(a) All representations and warranties of JHVST (other than those referred
to in Section 6.1(a) above or Section 6.3(a) below) shall be true and correct in
all material respects as of the date of this Agreement and as of the Closing
Date as though all such representations and warranties had been made as of the
Closing Date.
(b) The representations and warranties of Xxxx Xxxxxxx set forth in this
Agreement shall be true and correct in all material respects as of the date of
this Agreement and as of the Closing Date as though all such representations and
warranties had been made as of the Closing Date.
(c) JHVST shall have complied with and satisfied in all material respects
all agreements and conditions that this Agreement requires JHVST to comply with
or satisfy (other than those referred to in Section 6.1(b) above or Section
6.3(b) below) at or prior to the Closing Date.
(d) Xxxx Xxxxxxx shall have complied with and satisfied in all material
respects all agreements and conditions that this Agreement requires Xxxx Xxxxxxx
to comply with or satisfy at or prior to the Closing Date.
(e) The Reorganization shall have been approved by the shareholders of the
Acquired Fund on the record date by the Required Shareholder Vote.
18
(f) The assets of the Acquired Fund to be acquired by the Acquiring Fund
shall constitute at least 90% of the fair market value of the net assets and at
least 70% of the fair market value of the gross assets held by the Acquired Fund
immediately prior to the Reorganization. For purposes of this Section 6.2(f),
assets used by the Acquired Fund to pay the expenses it incurs in connection
with this Agreement and the Reorganization and to effect all shareholder
redemptions and distributions (other than regular, normal dividends and regular,
normal redemptions pursuant to the Investment Company Act, and not in excess of
the requirements of Section 852 of the Code, occurring in the ordinary course of
the Acquired Fund's business as a series of an open-end management investment
company) after the date of this Agreement shall be included as assets of the
Acquired Fund held immediately prior to the Reorganization.
(g) The Registration Statement on Form N-14 filed by JHVST with respect to
the Acquiring Fund Shares to be issued to Acquired Fund Shareholders in
connection with the Reorganization shall have become effective under the
Securities Act, and no stop order 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 Securities Act.
(h) The Acquiring Fund and the Acquired Fund each will have satisfied the
investment diversification requirements of Section 817(h) of the Code for all
taxable quarters since its inception, including the last short taxable period of
the Acquired Fund ending on the Closing Date and the taxable quarter of the
Acquiring Fund that includes the Closing Date.
(i) JHVST shall have received a certificate from Xxxx Xxxxxxx, in
substantially the form attached hereto as Exhibit I.
(j) JHVST, on behalf of both each Acquired Fund and the corresponding
Acquiring Fund in a Reorganization shall have received the opinion of Xxxxx &
Lardner LLP, dated on or before the Effective Time of the Reorganization,
addressed to and in form and substance satisfactory to JHVST, as to certain of
the federal income tax consequences under the Code of the Reorganization insofar
as it relates to the Acquired Fund and the Acquiring Fund. For purposes of
rendering its opinion, Xxxxx & Xxxxxxx LLP may rely exclusively and without
independent verification, as to factual matters, on the statements made in this
Agreement, the Combined Proxy Statement/Prospectus and the related Statement of
Additional Information, and on such other written representations as,
respectively, the Chairman or Treasurer of JHVST, will have verified as of the
Effective Time. The opinion will be to the effect that, based on the facts and
assumptions stated therein, for federal income tax purposes: (1) the
Reorganization will constitute a reorganization within the meaning of Section
368(a)(1) of the Code with respect to the Acquired Fund and the Acquiring Fund;
(2) no gain or loss will be recognized by the Acquired Fund or the Acquiring
fund upon the transfer of all of the assets and liabilities, if any, of the
Acquired Fund to the Acquiring Fund solely in exchange for shares of the
Acquiring Fund; (3) no gain or loss will be recognized by shareholders of the
Acquired Fund upon the exchange of such Fund's shares solely for shares of the
Corresponding Acquiring Fund; (4) the holding period and tax basis of the shares
of the Acquiring Fund received by each holder of shares of the Acquired Fund
pursuant to the Reorganization will be the same as the holding period and tax
basis of the shares of the Acquired Fund held by the shareholder (provided the
shares of the Acquired Fund were held as a capital asset on the date of the
Reorganization) immediately prior to the Reorganization; and (5) the holding
period and tax basis of the assets of the Acquired Fund
19
acquired by the Acquiring Fund will be the same as the holding period and tax
basis of those assets in the hands of the Acquired Fund immediately prior to the
Reorganization.
SECTION 6.3 Conditions Precedent to JHVST's Obligations With Respect to the
Acquiring Funds.
The obligation of JHVST to consummate a Reorganization on behalf of an Acquiring
Fund is subject to the satisfaction, at or prior to the Closing Date, of the
following conditions, any of which may be waived in writing by JHVST and Xxxx
Xxxxxxx.
(a) The representations and warranties of JHVST on behalf of the
Acquired Fund participating in the Reorganization set forth in this Agreement
shall be true and correct in all material respects as of the date of this
Agreement and as of the Closing Date with the same effect as though all such
representations and warranties had been made as of the Closing Date.
(b) JHVST shall have complied with and satisfied in all material respects
all agreements and conditions that this Agreement requires JHVST, on behalf of
the Acquired Fund, to comply with or satisfy at or prior to the Closing Date.
ARTICLE 7 TERMINATION OF AGREEMENT
SECTION 7.1 Termination.
(a) This Agreement may be terminated as to any Reorganization on or prior
to the Closing Date for that Reorganization at the election of any party:
(i) if the applicable Closing Date shall not be on or before the date set
out under "Closing Date" in Section 1.1, or such later date as the parties
hereto may agree upon, unless the failure to consummate the Reorganization is
the result of a willful and material breach of this Agreement by the party
seeking to terminate it; or
(ii) by written agreement of each party to this Agreement.
(b) a termination pursuant to Section 7.1(a)(i) above shall be effectuated
by the delivery by the terminating party to the other party of a written notice
of such termination.
SECTION 7.2 Survival After Termination.
If this Agreement is terminated in accordance with Section 7.1 hereof as to any
Reorganization and the Reorganization is not consummated, this Agreement shall
become void and of no further force and effect except for the provisions of
Section 5.3.
20
ARTICLE 8 MISCELLANEOUS
SECTION 8.1 Survival of Warranties and Covenants.
The warranties and covenants in this Agreement or in any certificate or
instrument delivered pursuant to this Agreement shall survive the consummation
of the transactions contemplated hereunder.
SECTION 8.2 Governing Law.
This Agreement shall be construed and interpreted according to the laws of the
Commonwealth of Massachusetts applicable to contracts made and to be performed
wholly within such commonwealth.
SECTION 8.3 Binding Effect, Persons Benefiting, No Assignment.
This Agreement shall inure to the benefit of and be binding upon the parties
hereto and the respective successors and assigns of the parties. Nothing in this
Agreement is intended or shall be construed to confer upon any Person other than
the parties hereto and their respective successors and permitted assigns any
right, remedy or claim under or by reason of this Agreement or any part hereof.
Without the prior written consent of the parties hereto, this Agreement may not
be assigned by any of the parties hereto.
SECTION 8.4 Obligations of JHVST (with respect to the Acquiring Funds and the
Acquired Funds).
(a) JHVST and Xxxx Xxxxxxx hereby acknowledge and agree that each Acquiring
Fund is a separate investment portfolio of JHVST, that JHVST is executing this
Agreement on behalf of the Acquiring Funds and that any amounts payable by JHVST
under or in connection with this Agreement and that arise out of an Acquiring
Fund's obligations or performance of its obligations hereunder shall be payable
solely from the revenues and assets of that Acquiring Fund. JHVST and Xxxx
Xxxxxxx further acknowledge and agree that (with respect to each Acquiring Fund)
this Agreement has been executed by a duly authorized officer of JHVST in his or
her capacity as an officer of JHVST intending to bind JHVST as provided herein,
and that no officer, trustee or shareholder of JHVST shall be personally liable
for the liabilities or obligations of JHVST incurred hereunder.
(b) JHVST and Xxxx Xxxxxxx hereby acknowledge and agree that each Acquired
Fund is a separate investment portfolio of JHVST, that JHVST is executing this
Agreement on behalf of the Acquired Funds and that any amounts payable by JHVST
under or in connection with this Agreement and that arise out of an Acquired
Fund's obligations or performance of its obligations hereunder shall be payable
solely from the revenues and assets of that Acquired Fund. JHVST and Xxxx
Xxxxxxx further acknowledge and agree that (with respect to each Acquired Fund)
this Agreement has been executed by a duly authorized officer of JHVST in his or
her capacity as an officer of JHVST intending to bind JHVST as provided herein,
and that no officer, trustee or shareholder of JHVST shall be personally liable
for the liabilities of JHVST incurred hereunder.
21
SECTION 8.5 Amendments.
This Agreement may not be amended, altered or modified except by a written
instrument executed by the parties.
SECTION 8.6 Enforcement.
The parties agree that irreparable damage would occur in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any court of the United States or any state having jurisdiction, in
addition to any other remedy to which they are entitled at law or in equity.
SECTION 8.7 Interpretation.
When a reference is made in this Agreement to any Section, Exhibit or Schedule,
such reference shall be to a Section of, an Exhibit of or a Schedule to, this
Agreement unless otherwise indicated. Any table of contents or headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. Whenever the words
"include", "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation." Each representation and
warranty contained in Article 3 or 4 that relates to a general category of a
subject matter shall be deemed superseded by a specific representation and
warranty relating to a subcategory thereof to the extent of such specific
representation or warranty.
SECTION 8.8 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an
original and each of which shall constitute one and the same instrument.
SECTION 8.9 Entire Agreement; Schedules.
This Agreement, including any Schedules, Exhibits and certificates referred to
herein, and any documents executed by the parties simultaneously herewith or
pursuant thereto, constitute the entire understanding and agreement of the
parties with respect to the subject matter hereof and supersedes all other prior
agreements and understandings, written or oral, between the parties with respect
to such subject matter.
SECTION 8.10 Notices.
All notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given when delivered by hand or by
overnight courier, two days after being sent by registered mail, return receipt
requested, or when sent by telecopier (with receipt confirmed), provided that,
in the case of a telecopied notice, a copy is also sent by registered mail,
return receipt requested, or by courier, addressed as follows (or to such other
address as a party may designate by notice to the other):
22
(a) If to JHVST:
Xxxx Xxxxxxx Variable Series Trust I
Xxxx Xxxxxxx Place
P.O. Box 111 000 Xxxxxxxxx Xxxxxx Xxxxxx, XX 00000
Attention: Xx. Xxxxxxx X Xxxxx
Fax: 000-000-0000
(b) If to Xxxx Xxxxxxx:
Xxxx Xxxxxxx Life Insurance Company
Xxxx Xxxxxxx Place
P.O. Box 111 000 Xxxxxxxxx Xxxxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax: 000-000-0000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
XXXX XXXXXXX VARIABLE SERIES TRUST I
acting on behalf of its Acquired Funds and its Acquiring Funds
By:
Xxxxxxx X. Xxx Xxxx
Name: Xxxxxxx X. Xxx Xxxx
Title: Chairman of the Board of Trustees
XXXX XXXXXXX LIFE INSURANCE COMPANY
By:
Xxxxxxx X. Xxx Xxxx
Name: Xxxxxxx X. Xxx Xxxx
Title: Senior Vice President
23
Exhibit I to Plan and Agreement of Reorganization
CERTIFICATE OF XXXX XXXXXXX LIFE INSURANCE COMPANY
Terms used in this Certificate have the same meaning as in the Agreement that
prescribes its delivery.
As to the Reorganization of [insert name of Acquired Fund] into [insert name of
Acquiring Fund] [add reference to additional Reorganizations as appropriate],
Xxxx Xxxxxxx hereby certifies that
a. Qualified officers of Xxxx Xxxxxxx have considered whether each of the
conditions precedent to consummating the Reorganization that are set forth in
Sections 6.1, 6.2, and 6.3 of the Agreement have been satisfied; and
b. John Xxxxxxx hereby certifies that all such conditions have been and are
satisfied.
XXXX XXXXXXX LIFE INSURANCE COMPANY
Date: November __, 2004 By:
---------------------------------------
Name:
Title:
24
