AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") is
adopted as of this 11th day of September, 2006, by ▇▇▇▇ ▇▇▇▇▇
Partners Variable Portfolios II, a Massachusetts business
trust (the "Trust"), with its principal place of business at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on behalf of its
series ▇▇▇▇ ▇▇▇▇▇ Partners Variable Appreciation Portfolio
(the "Acquiring Fund") and ▇▇▇▇ ▇▇▇▇▇ Partners Variable Growth
and Income Portfolio (the "Acquired Fund"), and, solely for
purposes of paragraph 7.2 hereof, ▇▇▇▇ ▇▇▇▇▇ Partners Fund
Advisor, LLC.
WHEREAS, each of the Acquired Fund and the Acquiring Fund
is a series of the Trust, which is an open-end management
investment company registered pursuant to the Investment
Company Act of 1940, as amended (the "1940 Act");
WHEREAS, it is intended that, for United States federal
income tax purposes (i) the transactions contemplated by this
Agreement shall qualify as a "reorganization" within the
meaning of Section 368(a) of the Internal Revenue Code of
1986, as amended (the "Code") and (ii) this Agreement shall
constitute a plan of reorganization within the meaning of
Treasury Regulation Section 1.368-2(g);
WHEREAS, the reorganization will consist of (1) the sale,
assignment, conveyance, transfer and delivery of all of the
property and assets of the Acquired Fund to the Acquiring Fund
in exchange solely for classes of shares of beneficial
interest of the Acquiring Fund (the "Acquiring Fund Shares")
corresponding to the classes of outstanding shares of
beneficial interest of the Acquired Fund (the "Acquired Fund
Shares"), as described herein, (2) the assumption by the
Acquiring Fund of all liabilities of the Acquired Fund, and
(3) the distribution of the Acquiring Fund Shares to the
shareholders of the Acquired Fund and liquidation of the
Acquired Fund, as provided herein (the "Reorganization"), all
upon the terms and conditions hereinafter set forth in this
Agreement;
WHEREAS, the Acquired Fund currently owns securities that
are generally assets of the character in which the Acquiring
Fund is permitted to invest;
WHEREAS, the Board of Trustees of the Trust (the "Board")
has determined, with respect to the Acquiring Fund, that the
sale, assignment, conveyance, transfer and delivery of all of
the property and assets of the Acquired Fund for Acquiring
Fund Shares and the assumption of all liabilities of the
Acquired Fund by the Acquiring Fund is in the best interests
of the Acquiring Fund and its shareholders and that the
interests of the existing shareholders of the Acquiring Fund
will not be diluted as a result of this transaction;
WHEREAS, the Board has determined, with respect to the
Acquired Fund, that the sale, assignment, conveyance, transfer
and delivery of all of the property and assets of the Acquired
Fund for Acquiring Fund Shares and the assumption of all
liabilities of the Acquired Fund by the Acquiring Fund is in
the best interests of the Acquired Fund and its shareholders
and that the interests of the existing shareholders of the
Acquired Fund will not be diluted as a result of this
transaction;
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements hereinafter set forth, the parties
hereto covenant and agree as follows:
1
..
TRANSFER OF ASSETS OF THE ACQUIRED FUND TO THE ACQUIRING
FUND IN EXCHANGE FOR ACQUIRING FUND SHARES, THE ASSUMPTION
OF ALL ACQUIRED FUND LIABILITIES AND THE LIQUIDATION OF THE
ACQUIRED FUND
1.1 The Acquired Fund will sell, assign, convey, transfer
and deliver all of its property and assets, as set forth in
paragraph 1.2, to the Acquiring Fund; will deliver to the
Acquired Fund the number of full and fractional Acquiring Fund
Shares corresponding to each class of the Acquired Fund Shares
as of the time and date set forth in paragraph 3.1, determined
by dividing the value of the Acquired Fund's net assets with
respect to each class of the Acquired Fund (computed in the
manner and as of the time and date set forth in paragraph 2.1)
by the net asset value of one share of the corresponding class
of Acquiring Fund Shares (computed in the manner and as of the
time and date set forth in paragraph 2.2); and will assume all
liabilities of the Acquired Fund. Such transactions shall take
place on a closing date as provided for in paragraph 3.1 (the
"Closing Date").
1.2 The property and assets of the Acquired Fund, to be
sold, assigned, conveyed, transferred and delivered to and
acquired by the Acquiring Fund, shall consist of all assets
and property of every kind and nature of the Acquired Fund,
including, without limitation, all rights, receivables
(including dividend, interest and other receivables), cash,
cash equivalents, claims (whether absolute or contingent,
known or unknown), securities, commodities and futures
interests, good will and other intangible property, any
deferred or prepaid expenses and all interests, rights,
privileges and powers, the Acquired Fund owns at the Valuation
Date (as defined in paragraph 2.1) (collectively, "Assets").
The Acquiring Fund shall assume all of the liabilities and
obligations of the Acquired Fund, including, without
limitation, all indemnification obligations of the Acquired
Fund with respect to the current and former members of the
Board and officers of the Trust, whether accrued or
contingent, known or unknown, existing at the Valuation Date
(collectively, "Liabilities"). The Acquired Fund will sell,
assign, convey, transfer and deliver to the Acquiring Fund any
rights, stock dividends, or other securities received by the
Acquired Fund after the Closing Date as stock dividends or
other distributions on or with respect to the property and
assets transferred, which rights, stock dividends, and other
securities shall be deemed included in the property and assets
transferred to the Acquiring Fund at the Closing Date and
shall not be separately valued, in which case any such
distribution that remains unpaid as of the Closing Date shall
be included in the determination of the value of the assets of
the Acquired Fund acquired by the Acquiring Fund.
1.3 The Acquired Fund will make reasonable efforts to
discharge all of its known Liabilities prior to the Valuation
Date.
1.4 On or as soon as practicable prior to the Closing Date,
the Acquired Fund will declare and pay to its shareholders of
record one or more dividends and/or other distributions so
that it will have distributed substantially all of its
investment company taxable income as defined in the Code
(computed without regard to any deduction for dividends paid)
and realized net capital gain as defined in the Code (after
deduction for any available capital loss carryover), if any,
for all tax periods ending on or before the Closing Date (and
treating the current taxable year as ending on the Closing
Date) such that the Acquired Fund will have no tax liability
under Section 852 or Section 4982 for the current and any
prior tax periods.
1.5 Immediately following the actions contemplated by
paragraph 1.1, the Acquired Fund shall (a) distribute to its
shareholders of record with respect to each class of Acquired
Fund Shares as of the Closing Date ("Acquired Fund
Shareholders"), on a pro rata basis within that class, the
Acquiring Fund Shares of the corresponding class received by
the Acquired Fund, pursuant to paragraph 1.1 and
(b) completely liquidate and dissolve in accordance with
Massachusetts law. Such distribution and liquidation shall be
accomplished, with respect to each class of Acquired Fund
Shares, by the transfer of the corresponding Acquiring Fund
Shares then credited to the account of the Acquired Fund on
the books of the Acquiring Fund to open accounts on the share
records of the Acquiring Fund in the names of the Acquired
Fund Shareholders. The aggregate net asset value of each class
of Acquiring Fund Shares to be so credited to each
corresponding class of Acquired Fund Shareholders shall, with
respect to each class, be equal to the aggregate net asset
value of the Acquired Fund Shares of each corresponding class
owned by Acquired Fund Shareholders on the Closing Date. All
issued and outstanding Acquired Fund Shares will be canceled
on the books of the Acquired Fund. The Acquiring Fund shall
not issue certificates representing any class of Acquiring
Fund Shares in connection with such exchange.
1.6 Ownership of Acquiring Fund Shares will be shown on the
books of the Acquiring Fund's transfer agent.
1.7 Any reporting responsibility of the Acquired Fund,
including, but not limited to, the responsibility for filing
regulatory reports, tax returns, or other documents with the
Securities and Exchange Commission ("Commission"), any state
securities commission, and any federal, state or local tax
authorities or any other relevant regulatory authority, is and
shall remain the responsibility of the Trust.
2. VALUATION
2.1 The value of the Assets and the amount of the
Liabilities shall be determined as of the time for calculation
of net asset value as set forth in the then-current prospectus
for the Acquired Fund, and after the declaration of any
dividends by the Acquired Fund, on the Closing Date (such time
and date being hereinafter called the "Valuation Date"),
computed using the valuation procedures established by the
Board. All computations of value and amounts shall be made by
(a) State Street Bank and Trust Company, in its capacity as
accounting agent for the Acquired Fund, or (b) in the case of
securities subject to fair valuation, in accordance with the
valuation procedures of the Trust adopted in good faith by the
Board. All computations of value and amounts pursuant to this
paragraph 2.1 shall be subject to confirmation by the
Acquiring Fund's independent registered public accounting
firm.
2.2. The net asset value per share of each class of
Acquiring Fund Shares shall be determined to the nearest full
cent on the Valuation Date, using the valuation procedures
established by the Board. All computations of value shall be
made by (a) State Street Bank and Trust Company, in its
capacity as accounting agent for the Acquiring Fund, or (b) in
the case of securities subject to fair valuation, in
accordance with the valuation procedures of the Trust adopted
in good faith by the Board. All computations of value pursuant
to this paragraph 2.2 shall be subject to confirmation by the
Acquired Fund's independent registered public accounting firm.
2.3 The number of Acquiring Fund Shares of each class to be
issued in exchange for the Assets shall be determined with
respect to each such class by dividing the value of the net
assets with respect to each class of Acquired Fund Shares,
determined using the same valuation procedures referred to in
paragraph 2.1, by the net asset value of an Acquiring Fund
Share of the corresponding class, determined using the same
valuation procedures referred to in paragraph 2.2.
3. CLOSING AND CLOSING DATE
3.1 Subject to the terms and conditions set forth herein,
the Closing Date shall be April 27, 2007, or such other date
as the parties may agree. All acts taking place at the closing
of the transactions provided for in this Agreement ("Closing")
shall be deemed to take place simultaneously as of the "close
of business" on the Closing Date unless otherwise agreed to by
the parties. The close of business on the Closing Date shall
be as of 4:00 p.m., Eastern Time or such later time on that
date as the Acquired Fund's net asset value and/or the net
asset value per share of each class of shares of the Acquiring
Fund is calculated in accordance with paragraph 2.2 and after
the declaration of any dividends. The Closing shall be held at
the offices of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP or at such other
time and/or place as the parties may agree.
3.2 The Trust shall direct State Street Bank and Trust
Company (the "Custodian") to transfer ownership of the Assets
from the accounts of the Acquired Fund that the Custodian
maintains as custodian for the Acquired Fund to the accounts
of the Acquiring Fund that the Custodian maintains as
custodian for the Acquiring Fund and to deliver to the Trust,
at the Closing, a certificate of an authorized officer stating
that (i) the Assets of the Acquired Fund have been so
transferred as of the Closing Date, and (ii) all necessary
taxes in connection with the delivery of the Assets of the
Acquired Fund, including all applicable federal and state
stock transfer stamps, if any, have been paid or provision for
payment has been made.
3.3 The Trust shall direct PFPC Inc., in its capacity as
transfer agent for the Acquired Fund ("Transfer Agent"), to
deliver to the Trust at the Closing a certificate of an
authorized officer stating that its records contain the name
and address of each Acquired Fund Shareholder and the number
and percentage ownership of each outstanding class of Acquired
Fund Shares owned by each such shareholder immediately prior
to the Closing. The Acquiring Fund shall provide a
confirmation evidencing that (a) the appropriate number of
Acquiring Fund Shares have been credited to the Acquired
Fund's account on the books of the Acquiring Fund pursuant to
paragraph 1.1 prior to the actions contemplated by paragraph
1.4 and (b) the appropriate number of Acquiring Fund Shares
have been credited to the accounts of the Acquired Fund
Shareholders on the books of the Acquiring Fund pursuant to
paragraph 1.4.
3.4 In the event that on the Valuation Date (a) the New
York Stock Exchange or another primary trading market for
portfolio securities of the Acquiring Fund or the Acquired
Fund (each, an "Exchange") shall be closed to trading or
trading thereupon shall be restricted, or (b) trading or the
reporting of trading on such Exchange or elsewhere shall be
disrupted so that, in the judgment of the Board, accurate
appraisal of the value of the net assets of the Acquired Fund
or the Acquiring Fund is impracticable, the Closing Date shall
be postponed until the first Friday (that is also a business
day) after the day when trading shall have been fully resumed
and reporting shall have been restored.
4. CONDITIONS TO THE REORGANIZATION
Except as has been fully disclosed in Schedule 4.1 of this
Agreement, the Trust, on behalf of the Acquired Fund and the
Acquiring Fund, represents and warrants as follows:
4.1 The Acquired Fund and the Acquiring Fund each will
operate its business in the ordinary course and shall comply
in all material respects with all applicable laws, rules and
regulations between the date hereof and the Closing Date, it
being understood that such ordinary course of business will
include the declaration and payment of customary dividends and
other distributions, and any other distribution that may be
advisable.
4.2 The Trust will call and hold a meeting of the
shareholders of the Acquired Fund to consider and act upon
this Agreement and to take all other action necessary to
obtain approval of the transactions contemplated herein.
4.3 The Acquired Fund represents that the Acquiring Fund
Shares to be acquired by the Acquired Fund hereunder are not
being acquired for the purpose of making any distribution
thereof, other than in accordance with the terms of this
Agreement.
4.4 Subject to the provisions of this Agreement, the Trust
will take, or cause to be taken, all action, and do or cause
to be done, all things reasonably necessary, proper or
advisable to consummate and make effective the transactions
contemplated by this Agreement.
4.5 The Trust shall prepare and file a Registration
Statement on Form N-14 in compliance with the 1933 Act, the
1934 Act and the 1940 Act and the rules and regulations
thereunder with respect to the Reorganization (the
"Registration Statement").
4.6 The Trust will use all reasonable efforts to obtain the
approvals and authorizations required by the 1933 Act, the
1940 Act and such of the state blue sky or securities laws as
may be necessary in order to continue its operations after the
Closing Date.
4.7 The Trust shall not change the Trust Declaration,
prospectus or statement of additional information so as to
restrict permitted investments for the Acquiring Fund, except
as required by the Commission prior to the Closing.
4.8 The Acquiring Fund shall have executed and delivered an
assumption of the Liabilities and all such other agreements
and instruments in order to vest in and confirm (a) the
Acquired Fund's title to and possession of the Acquiring Fund
Shares to be delivered hereunder and (b) the Acquiring Fund's
assumption of all of the Liabilities and to otherwise to carry
out the intent and purpose of this Plan.
4.9 The Acquired Fund shall have delivered to the Acquiring
Fund a Statement of Assets and Liabilities of the Acquired
Fund as of the Closing Date, including a schedule of
investments, certified by the Treasurer of the Trust. The
Acquired Fund shall have executed and delivered all such
assignments and other instruments of transfer in order to vest
in and confirm (a) the Acquired Fund's title to and possession
of the Acquiring Fund Shares to be delivered hereunder and
(b) the Acquiring Fund's title to and possession of all the
Assets and to otherwise to carry out the intent and purpose of
this Plan.
4.10 The Acquiring Fund and the Acquired Fund shall have
determined the number of full and fractional Acquiring Fund
Shares to be issued in connection with the Reorganization
after such number has been calculated in accordance with
paragraph 1.1.
4.11 Neither the Acquiring Fund nor the Acquired Fund is
subject to any litigation or administrative proceeding that
could reasonably be expected to have a materially adverse
effect on the operations of the Acquiring Fund or the Acquired
Fund.
5
..
FURTHER CONDITIONS PRECEDENT TO THE REORGANIZATION
5.1 This Agreement and the transactions contemplated herein
shall have been approved by the requisite vote of the holders
of the outstanding shares of the Acquired Fund, in accordance
with the provisions of the Trust Declaration, the by-laws of
the Trust, and Massachusetts law. This condition may not be
waived.
5.2 On the Closing Date, no court or governmental agency of
competent jurisdiction shall have issued any order that
remains in effect and that restrains or enjoins the Trust from
completing the transactions contemplated by this Agreement.
5.3 All consents of other parties and all other consents,
orders and permits of federal, state and local regulatory
authorities deemed necessary by the Trust to permit
consummation, in all material respects, of the transactions
contemplated hereby shall have been obtained, except where
failure to obtain any such consent, order or permit would not
involve a risk of a material adverse effect on the assets or
properties of the Acquiring Fund or the Acquired Fund.
5.4 The Registration Statement shall have become effective
under the 1933 Act and no stop orders suspending the
effectiveness thereof shall have been issued and, to the best
knowledge of the parties hereto, no investigation or
proceeding for that purpose shall have been instituted or be
pending.
5.5 The Trust shall have received the opinion of Dechert
LLP, dated the Closing Date, substantially to the effect that,
based upon certain facts, assumptions and representations made
by the Trust, on behalf of the Acquired Fund and the Acquiring
Fund, and its authorized officers, (i) the transactions
contemplated by this Agreement will constitute a
reorganization within the meaning of Section 368(a) of the
Code; (ii) no gain or loss will be recognized by the Acquiring
Fund upon receipt of the Assets in exchange for the Acquiring
Fund Shares and the assumption by the Acquiring Fund of the
Acquired Fund Liabilities; (iii) the basis in the hands of the
Acquiring Fund in the Assets will be the same as the basis of
the Acquired Fund in the Assets immediately prior to the
transfer thereof; (iv) the holding periods of the Assets in
the hands of the Acquiring Fund will include the periods
during which the Assets were held by the Acquired Fund (except
where investment activities of the Acquiring Fund have the
effect of reducing or eliminating the holding period with
respect to an asset); (v) no gain or loss will be recognized
by the Acquired Fund upon the transfer of the Assets to the
Acquiring Fund in exchange for the Acquiring Fund Shares and
the assumption by the Acquiring Fund of the Acquired Fund
Liabilities, or upon the distribution of the Acquiring Fund
Shares by the Acquired Fund to its shareholders except for
gain or loss that may be recognized with respect to contracts
subject to Section 1256 of the Code and/or stock in a "passive
foreign investment company" as defined in Section 1297(a) of
the Code; (vi) no gain or loss will be recognized by the
Acquired Fund shareholders upon the exchange of their Acquired
Fund Shares for the Acquiring Fund Shares; (vii) the aggregate
basis of the Acquiring Fund Shares that each Acquired Fund
shareholder receives in connection with the transaction will
be the same as the aggregate basis of his or her Acquired Fund
Shares exchanged therefor; and (viii) an Acquired Fund
shareholder's holding period for his or her Acquiring Fund
Shares will be determined by including the period for which he
or she held the Acquired Fund Shares exchanged therefor,
provided that he or she held the Acquired Fund Shares as
capital assets. The delivery of such opinion is conditioned
upon the receipt by Dechert LLP of representations it shall
request of the Trust and the Trust. Notwithstanding anything
herein to the contrary, this condition may not be waived.
5.6 The Trust shall have received on the Closing Date an
opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, in a form reasonably
satisfactory to the Trust, and dated as of the Closing Date,
substantially to the effect that, based upon certain facts and
certifications made by the Trust and its authorized officers:
(a) the Trust is a business trust existing under the laws of
the Commonwealth of Massachusetts; (b) the Trust, with respect
to the Acquired Fund and the Acquiring Fund, has the power as
a business trust to carry on its business as an open-end
investment company registered under the 1940 Act; (c) this
Agreement has been duly authorized, executed and, so far as
known to such counsel, delivered by the Trust, on behalf of
the Acquired Fund and the Acquiring Fund, and assuming due
authorization, execution and delivery of this Agreement by the
Trust, on behalf of the Acquiring Fund and the Acquired Fund,
constitutes a valid and legally binding obligation of the
Trust, on behalf of the Acquired Fund and the Acquiring Fund,
enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and laws of general applicability
relating to or affecting creditors' rights and to general
equity principles (whether in a proceeding under equity or at
law); provided that such counsel shall be entitled to state
that it expresses no opinion with respect to the validity,
binding effect or enforceability of any contractual provisions
purporting to provide indemnification of any person for any
claims, damages, liabilities or expenses which may be limited
by any applicable federal or state securities laws or as a
matter of public policy; (d) the execution and delivery of
this Agreement did not, and the transfer of the Assets for
Acquiring Fund Shares and the assumption by the Acquiring Fund
of the Liabilities pursuant to this Agreement will not,
violate the Trust Declaration or the by-laws of the Trust or
any contracts or other documents known to ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ LLP which can affect the rights or obligations of
the Trust; (e) to the knowledge of such counsel, all
regulatory or court consents, authorizations, approvals,
orders or filings required to be obtained or made by the
Trust, on behalf of the Acquired Fund and the Acquiring Fund,
under the federal laws of the United States or the laws of the
Commonwealth of Massachusetts for the transfer of the Assets
for Acquiring Fund Shares and the assumption by the Acquiring
Fund of the Liabilities pursuant to this Agreement have been
obtained or made, except such as may be required under state
securities or blue sky laws as to which such counsel need
express no opinion; and (f) to the knowledge of such counsel,
and without any independent investigation, other than as
disclosed on the schedule provided by the Trust pursuant to
paragraph 4.1 of this Agreement, the Acquired Fund and the
Acquiring Fund are not subject to any litigation or
administrative proceeding that could reasonably be expected to
have a materially adverse effect on the operations of the
Acquired Fund or the Acquiring Fund. Such opinion may state
that it is solely for the benefit of the Trust and the Board.
Such opinion may contain such assumptions and limitations as
shall be in the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
appropriate to render the opinions expressed therein. Such
opinion also shall include such other matters incident to the
transactions contemplated hereby as the Trust, on behalf of
the Acquiring Fund and the Acquiring Fund, may reasonably
request. With respect to all matters of Massachusetts law,
such counsel shall be entitled to state that, with the
approval of the Trust, they have relied on the opinion of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP and that their opinion is subject to the
same assumptions, qualifications and limitations with respect
to such matters as are contained in the opinion of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ LLP.
5.7 The Assets will include no assets which the Acquiring
Fund, by reason of limitations contained in the Trust
Declaration or in investment restrictions in effect on the
Closing Date, may not properly acquire.
6. INDEMNIFICATION
6.1 The Trust, out of the Acquiring Fund's assets and
property (including any amounts paid to the Acquiring Fund
pursuant to any applicable liability insurance policies or
indemnification agreements) agrees to indemnify and hold
harmless the members of the Board and its officers from and
against any and all losses, claims, damages, liabilities or
expenses (including, without limitation, the payment of
reasonable legal fees and reasonable costs of investigation)
to which those board members and officers may become subject,
insofar as such loss, claim, damage, liability or expense (or
actions with respect thereto) arises out of or is based on
(a) any breach by the Trust, on behalf of the Acquiring Fund,
of any of its obligations set forth in this Agreement or
(b) any act, error, omission, neglect, misstatement,
materially misleading statement, breach of duty or other act
wrongfully done or attempted to be committed by the Trust or
the members of the Board or its officers prior to the Closing
Date, provided that such indemnification by the Trust is not
(i) in violation of any applicable law or (ii) otherwise
prohibited as a result of any applicable order or decree
issued by any governing regulatory authority or court of
competent jurisdiction.
6.2 The Trust, out of the Acquired Fund's assets and
property (including any amounts paid to the Acquired Fund
pursuant to any applicable liability insurance policies or
indemnification agreements) agrees to indemnify and hold
harmless the members of the Board and its officers from and
against any and all losses, claims, damages, liabilities or
expenses (including, without limitation, the payment of
reasonable legal fees and reasonable costs of investigation)
to which those board members and officers may become subject,
insofar as such loss, claim, damage, liability or expense (or
actions with respect thereto) arises out of or is based on
(a) any breach by the Trust, on behalf of the Acquired Fund,
of any of its obligations set forth in this Agreement or
(b) any act, error, omission, neglect, misstatement,
materially misleading statement, breach of duty or other act
wrongfully done or attempted to be committed by the Trust or
the members of the Board or its officers prior to the Closing
Date, provided that such indemnification by the Trust is not
(i) in violation of any applicable law or (ii) otherwise
prohibited as a result of any applicable order or decree
issued by any governing regulatory authority or court of
competent jurisdiction.
7. BROKER FEES AND EXPENSES
7.1 The Trust represents and warrants that there are no
brokers or finders entitled to receive any payments in
connection with the transactions provided for herein.
7.2 ▇▇▇▇ ▇▇▇▇▇ Partners Fund Advisor, LLC will pay the
printing, proxy solicitation, mailing and postage costs of the
Reorganization. Additional costs, including expenses related
to the preparation and filing of the Registration Statement,
legal fees and auditor fees, shall be divided equally between
▇▇▇▇ ▇▇▇▇▇ Partners Fund Advisor, LLC, on the one hand, and
the Trust, on the other hand. Notwithstanding any of the
foregoing, expenses will in any event be paid by the party
directly incurring such expenses if and to the extent that the
payment by another person of such expenses would result in the
disqualification of such party as a "regulated investment
company" within the meaning of Section 851 of the Code or
would prevent the Reorganization from qualifying as a tax-free
reorganization.
8. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
The covenants to be performed after the Closing and the
obligations of the Acquiring Fund in Article 6, shall survive
the Closing. All other representations, warranties and
covenants contained in this Agreement or in any document
delivered pursuant hereto or in connection herewith shall not
survive the consummation of the transactions contemplated
hereunder and shall terminate on the Closing.
9. TERMINATION
This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the
Closing Date by resolution of the Board, if circumstances
should develop that, in the opinion of that Board, make
proceeding with the Agreement inadvisable with respect to the
Acquiring Fund or the Acquired Fund. Any such termination
resolution to be effective shall be adopted prior to the
Closing Date.
10. AMENDMENTS
This Agreement may be amended, modified or supplemented in
such manner as may be deemed necessary or advisable by the
authorized officers of the Trust; provided, however, that
following the meeting of the Acquired Fund shareholders called
by the Acquired Fund pursuant to paragraph 4.2 of this
Agreement, no such amendment may have the effect of changing
the provisions for determining the number of Acquiring Fund
Shares to be issued to Acquired Fund shareholders under this
Agreement to the detriment of such shareholders without their
further approval.
11
..
HEADINGS; COUNTERPARTS; GOVERNING LAW; SEVERABILITY;
ASSIGNMENT; LIMITATION OF LIABILITY
11.1 The Article headings contained in this Agreement are
for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
11.2 This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
11.3 This Agreement shall be governed by and construed and
interpreted in accordance with the internal laws of the State
of New York.
11.4 This Agreement shall bind and inure to the benefit of
the parties hereto and their respective successors and
assigns, but no assignment or transfer hereof or of any rights
or obligations hereunder shall be made by any party without
the written consent of the other parties. Nothing herein
expressed or implied is intended or shall be construed to
confer upon or give any person, firm or corporation, other
than the parties hereto and their respective successors and
assigns, any rights or remedies under or by reason of this
Agreement.
11.5 The Trust Declaration is on file with the Secretary of
State of the Commonwealth of Massachusetts. Consistent with
the Trust Declaration, the obligations of the Trust with
respect to the Acquired Fund and the Acquiring Fund entered
into in the name or on behalf of the Trust by any of its
Trustees, officers, employees or agents are made not
individually, but in such capacities, and are not binding upon
any of the Trustees, officers, employees, agents or
shareholders of the Trust, personally, but bind only the
assets of the Trust belonging to the Acquired Fund and the
Acquiring Fund, and all persons dealing with any series or
funds of the Trust must look solely to the assets of the Trust
belonging to such series or fund for the enforcement of any
claims against the Trust.
IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be executed by its duly authorized officer.
▇▇▇▇ ▇▇▇▇▇ PARTNERS ▇▇▇▇ ▇▇▇▇▇ PARTNERS
VARIABLE PORTFOLIOS II, VARIABLE PORTFOLIOS II,
on behalf of its series ▇▇▇▇ ▇▇▇▇▇ on behalf of its
series ▇▇▇▇ ▇▇▇▇▇
PARTNERS VARIABLE APPRECIATION PARTNERS VARIABLE GROWTH
PORTFOLIO AND INCOME PORTFOLIO
By: _______________________________ By:
________________________________
Name: R. ▇▇▇ ▇▇▇▇▇▇ Name: R. ▇▇▇
▇▇▇▇▇▇
Title: Chairman, President and Chief Title:
Chairman, President and Chief
Executive Officer Executive Officer
Solely for purposes of paragraph 7.2 of this Agreement:
▇▇▇▇ ▇▇▇▇▇ PARTNERS FUND ADVISOR, LLC
By
:
______________________________________________________
__
Name: R. ▇▇▇ ▇▇▇▇▇▇
Title: President and Chief Executive Officer
SCHEDULE 4.1
NONE
- 7 -