Exhibit 4
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as
of this 21st day of January, 2003, by and among Hartford Series Fund, Inc. (the
"Acquiring Corporation"), a Maryland corporation, on behalf of each of Hartford
International Opportunities HLS Fund, Hartford Global Leaders HLS Fund, Hartford
Growth and Income HLS Fund and Hartford Stock HLS Fund (each an "Acquiring Fund"
and collectively, the "Acquiring Funds"), each a separate series of the
Acquiring Corporation, and Hartford HLS Series Fund II, Inc. (the "Target
Corporation" and, together with the Acquiring Corporation, each a "Corporation"
and collectively the "Corporations"), a Maryland corporation, on behalf of each
of Hartford International Stock II HLS Fund, Hartford Global Equity HLS Fund,
Hartford Blue Chip Stock II HLS Fund, Hartford Investors Growth HLS Fund and
Hartford American Leaders HLS Fund (each, a "Target Fund" and collectively, the
"Target Funds" and, together with an Acquiring Fund, each a "Fund" and
collectively the "Funds"), each a separate series of the Target Corporation, and
HL Investment Advisors, LLC ("HL Advisors"), investment adviser to the Funds
(for purposes of Paragraph 10.2 of the Agreement only). The principal place of
business of each Corporation is ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
This Agreement is intended to be and is adopted as a plan of
reorganization and liquidation within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"). The reorganizations
(each a "Reorganization" and collectively, the "Reorganizations") will consist
of the transfer of all or substantially all of the assets of each Target Fund to
its corresponding Acquiring Fund in exchange solely for Class IA voting shares
of capital stock ($0.001 par value per share) of its corresponding Acquiring
Fund (the "Acquiring Fund Shares") as set forth on Schedule A attached hereto,
the assumption by each Acquiring Fund of all of the liabilities of its
corresponding Target Fund and the distribution of the Acquiring Fund Shares to
the Class IA shareholders of each Target Fund in complete liquidation of each
Target Fund as provided herein, all upon the terms and conditions hereinafter
set forth in this Agreement. Notwithstanding anything to the contrary in this
Agreement, the rights and obligations of each Target Fund, and the Target
Corporation with respect to that Target Fund, and each Acquiring Fund, and the
Acquiring Corporation with respect to that Acquiring Fund, are not contingent
upon the satisfaction by any other Target Fund or Acquiring Fund, as applicable,
of its obligations under this Agreement.
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 EACH TARGET FUND TO ITS CORRESPONDING ACQUIRING
FUND IN EXCHANGE FOR ACQUIRING FUND SHARES, THE ASSUMPTION OF ALL
TARGET FUND LIABILITIES AND THE LIQUIDATION OF EACH TARGET FUND
1.1. Subject to the terms and conditions set forth herein and on the
basis of the representations and warranties contained herein, each Target Fund
agrees to transfer to its corresponding Acquiring Fund all or substantially all
of the Target Fund's assets as set forth in section 1.2, and each Acquiring Fund
agrees in exchange therefor (i) to deliver to its corresponding Target Fund that
number of full and fractional Class IA Acquiring Fund Shares determined by
dividing the value of its corresponding Target Fund's assets net of any
liabilities of the Target Fund with respect to the Class IA shares of the Target
Fund, computed in the manner and as of the time and date set forth in section
2.1, by the net asset value of one Acquiring Fund Share, computed in the manner
and as of the time and date set forth in section 2.2; and (ii) to assume all of
the liabilities of its corresponding Target Fund. All Acquiring Fund Shares
delivered to the Target Funds shall be delivered at net asset value without a
sales load, commission or other similar fee being imposed. Such transactions
shall take place at the closing provided for in section 3.1 (the "Closing").
1.2. The assets of each Target Fund to be acquired by its
corresponding Acquiring Fund (the "Assets") shall consist of all assets,
including, without limitation, all cash, cash equivalents, securities,
commodities and futures interests and dividends or interest or other receivables
that are owned by the Target Fund and any deferred or prepaid expenses shown on
the unaudited statement of assets and liabilities of such Target Fund prepared
as of the effective time of the Closing in accordance with generally accepted
accounting principles ("GAAP") applied consistently with those of the Target
Fund's most recent audited balance sheet. The Assets 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 each Target Fund immediately before
the Closing (excluding for these purposes assets used to pay the dividends and
other distributions paid pursuant to section 1.4).
1.3. Each Target Fund will endeavor to discharge all of its known
liabilities and obligations prior to the Closing Date as defined in section 3.6.
1.4. On or as soon as practicable prior to the Closing Date as defined
in section 3.1, each Target 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 (and in no event less than 98%) of its investment
company taxable income (computed without regard to any deduction for dividends
paid) and realized net capital gain, if any, for the current taxable year
through the Closing Date.
1.5. Immediately after the transfer of Assets provided for in section
1.1, each Target Fund will distribute to the Target Fund's shareholders of
record (the "Target Fund Shareholders"), determined as of the Valuation Time (as
defined in section 2.1), on a pro rata basis, the Acquiring Fund Shares received
by the Target Fund pursuant to section 1.1 and will completely liquidate. Such
distribution and liquidation will be accomplished with respect to each Target
Fund by the transfer of the Acquiring Fund Shares then credited to the account
of the Target Fund on the books of the Acquiring Fund to open accounts on the
share records of the Acquiring Fund in the names of the Target Fund
Shareholders. Each Acquiring Fund shall have no obligation to inquire as to the
validity, propriety or correctness of such records, but shall assume that such
transaction is valid, proper and correct. The aggregate net asset value of the
Class IA Acquiring Fund Shares to be so credited to the Class IA Target Fund
Shareholders shall be equal to the aggregate net asset value of the applicable
Target Fund shares owned by such shareholders as of the Valuation Time. All
issued and outstanding shares of each Target Fund will simultaneously be
cancelled on the books of the Target Fund, although share certificates
representing interests in Class IA shares of each Target Fund will represent a
number of Acquiring Fund Shares after the Closing Date as determined in
accordance with section 2.3. The Acquiring Funds will not issue certificates
representing Acquiring Fund Shares in connection with such exchange.
1.6. Ownership of Acquiring Fund Shares will be shown on the books of
each Acquiring Fund. Shares of each Acquiring Fund will be issued in the manner
described in the Acquiring Funds' then-current prospectus and statement of
additional information.
1.7. Any reporting responsibility of a Target Fund including, without
limitation, the responsibility for filing of regulatory reports, tax returns, or
other documents with the Securities and Exchange Commission (the "Commission"),
any state securities commission, and any federal, state or local tax authorities
or any other relevant regulatory authority, is and shall remain the
responsibility of the applicable Target Fund.
1.8. All books and records of each Target Fund, including all books
and records required to be maintained under the Investment Company Act of 1940,
as amended (the "1940 Act"), and the rules and regulations thereunder, shall be
available to its corresponding Acquiring Fund from and after the Closing Date
and shall be turned over to its corresponding Acquiring Fund as soon as
practicable following the Closing Date.
2. VALUATION
2.1. The value of the Assets shall be computed as of the close of
business on the Closing Date, as defined in section 3.1 (the "Valuation Time")
after the declaration and payment of any dividends and/or other distributions on
that date, using the valuation procedures set forth in the Acquiring
Corporation's Charter, as amended, and then-current prospectus or statement of
additional information, copies of which have been delivered to each Target Fund.
2.2. The net asset value of a Class IA Acquiring Fund Share shall be
the net asset value per share computed as of the Valuation Time using the
valuation procedures referred to in section 2.1.
2.3. The number of Class IA Acquiring Fund Shares to be issued
(including fractional shares, if any) in exchange for the Assets shall be
determined by dividing the value of the Assets with respect to Class IA shares
of the applicable Target Fund determined in accordance with section 2.1 by the
net asset value of an Acquiring Fund Share determined in accordance with section
2.2.
2.4. All computations of value hereunder shall be made by or under the
direction of each Fund's respective accounting agent, if applicable, in
accordance with its regular practice and the requirements of the 1940 Act and
shall be subject to confirmation by each Fund's respective independent
accountants upon the reasonable request of the other Fund.
3. CLOSING AND CLOSING DATE
3.1. The Closing of the transactions contemplated by this Agreement
shall be January 24, 2003, or such later date as the parties may agree in
writing (the "Closing Date"). All acts taking place at the 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 Closing shall be held at
the offices of Dechert, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ -- ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, or at such other place and time as the parties may agree.
3.2. Each Target Fund shall deliver to its corresponding Acquiring
Fund on the Closing Date a schedule of Assets.
3.3. State Street Bank and Trust Company ("State Street"), custodian
for each Target Fund, shall deliver at the Closing a certificate of an
authorized officer stating that (a) the Assets shall have been delivered in
proper form to State Street, custodian for each Acquiring Fund, prior to or on
the Closing Date and (b) all necessary taxes in connection with the delivery of
the Assets, including all applicable federal and state stock transfer stamps, if
any, have been paid or provision for payment has been made. Each Target Fund's
portfolio securities represented by a certificate or other written instrument
shall be presented by the custodian for each Target Fund to the custodian for
each Acquiring Fund for examination no later than five business days preceding
the Closing Date and transferred and delivered by each Target Fund as of the
Closing Date by each Target Fund for the account of its corresponding Acquiring
Fund duly endorsed in proper form for transfer in such condition as to
constitute good delivery thereof. Each Target Fund's portfolio securities and
instruments deposited with a securities depository, as defined in Rule 17f-4
under the 1940 Act, shall be delivered as of the Closing Date by book entry in
accordance with the customary practices of such depositories and the custodian
for its corresponding Acquiring Fund. The cash to be transferred by each Target
Fund shall be delivered by wire transfer of federal funds on the Closing Date.
3.4. Hartford Investor Services Company, as transfer agent for each
Target Fund, on behalf of each Target Fund, shall deliver at the Closing a
certificate of an authorized officer stating that its records contain the names
and addresses of the Target Fund Shareholders and the number and percentage
ownership (to three decimal places) of outstanding Class IA Target Fund shares
owned by each such shareholder immediately prior to the Closing. Each Acquiring
Fund shall issue and deliver a confirmation evidencing the Acquiring Fund Shares
to be credited on the Closing Date to its corresponding Target Fund or provide
evidence satisfactory to its corresponding Target Fund that such Acquiring Fund
Shares have been credited to that Target Fund's account on the books of the
Acquiring Fund. At the Closing, each party shall deliver to the other such bills
of sale, checks, assignments, share certificates, if any, receipts or other
documents as such other party or its counsel may reasonably request to effect
the transactions contemplated by this Agreement.
3.5. In the event that immediately prior to the Valuation Time (a) the
NYSE or another primary trading market for portfolio securities of an Acquiring
Fund or a Target Fund 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 members of
either party to this Agreement, accurate appraisal of the value of the net
assets with respect to the Class IA shares of an Acquiring Fund or a Target Fund
is impracticable, the Closing Date shall be postponed until the first business
day after the day when trading shall have been fully resumed and reporting shall
have been restored.
3.6. The liabilities of each Target Fund shall include all of such
Target Fund's liabilities, debts, obligations, and duties of whatever kind or
nature, whether absolute, accrued, contingent, or otherwise, whether or not
arising in the ordinary course of business, whether or not determinable at the
Closing Date, and whether or not specifically referred to in this Agreement
including but not limited to any deferred compensation to such Target Fund's
board members.
4. REPRESENTATIONS AND WARRANTIES
4.1. The Target Corporation, on behalf of each Target Fund, represents
and warrants to the respective Acquiring Fund as follows:
(a) The Target Corporation is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Maryland with power under the Target Corporation's Charter, as
amended, to own all of its properties and assets and to carry on its
business as it is now being conducted and, subject to approval of
shareholders of the Target Fund, to carry out the Agreement. The
Target Fund is a separate series of the Target Corporation duly
designated in accordance with the applicable provisions of the Target
Corporation's Charter. The Target Corporation and Target Fund are
qualified to do business in all jurisdictions in which they are
required to be so qualified, except jurisdictions in which the failure
to so qualify would not have material adverse effect on the Target
Corporation or Target Fund. The Target Fund has all material federal,
state and local authorizations necessary to own all of the properties
and assets and to carry on its business as now being conducted, except
authorizations that the failure to so obtain would not have a material
adverse effect on the Target Fund;
(b) The Target Corporation is registered with the Commission as
an open-end management investment company under the 1940 Act, and such
registration is in full force and effect and the Target Fund is in
compliance in all material respects with the 1940 Act and the rules
and regulations thereunder;
(c) No consent, approval, authorization, or order of any court or
governmental authority is required for the consummation by the Target
Fund of the transactions contemplated herein, except such as have been
obtained under the Securities Act of 1933, as amended (the "1933
Act"), the Securities Exchange Act of 1934, as amended (the "1934
Act") and the 1940 Act and such as may be required by state securities
laws;
(d) Other than with respect to contracts entered into in
connection with the portfolio management of the Target Fund which
shall terminate on or prior to the Closing Date, the Target
Corporation is not, and the execution, delivery and performance of
this Agreement by the Target Corporation will not result in (i) a
violation of Maryland law or of the Target Corporation's Charter, as
amended, or By-Laws, (ii) a violation or breach of, or constitute a
default under, any material agreement, indenture, instrument,
contract, lease or other undertaking to which the Target Fund is a
party or by which it is bound, and the execution, delivery and
performance of this Agreement by the Target Fund will not result in
the acceleration of any obligation, or the imposition of any penalty,
under any agreement, indenture, instrument, contract, lease, judgment
or decree to which the Target Fund is a party or by which it is bound,
or (iii) the creation or imposition of any lien, charge or encumbrance
on any property or assets of the Target Fund;
(e) No material litigation or administrative proceeding or
investigation of or before any court or governmental body is presently
pending or to its knowledge threatened against the Target Fund or any
properties or assets held by it. The Target Fund knows of no facts
that might form the basis for the institution of such proceedings that
would materially and adversely affect its business and is not a party
to or subject to the provisions of any order, decree or judgment of
any court or governmental body which materially and adversely affects
its business or its ability to consummate the transactions herein
contemplated;
(f) The Statements of Assets and Liabilities, Operations, and
Changes in Net Assets, the Financial Highlights, and the Investment
Portfolio of the Target Fund at and for the fiscal year ended December
31, 2001, have been audited by KPMG LLP, independent auditors, and are
in accordance with GAAP consistently applied, and such statements (a
copy of each of which has been furnished to the Acquiring Fund)
present fairly, in all material respects, the financial position of
the Target Fund as of such date in accordance with GAAP, and there are
no known contingent liabilities of the Target Fund required to be
reflected on a balance sheet (including the notes thereto) in
accordance with GAAP as of such date not disclosed therein;
(g) Since December 31, 2001, there has not been any material
adverse change in the Target Fund's financial condition, assets,
liabilities or business other than changes occurring in the ordinary
course of business, or any incurrence by the Target Fund of
indebtedness maturing more than one year from the date such
indebtedness was incurred except as otherwise disclosed to and
accepted in writing by the Acquiring Fund. For purposes of this
subsection (g), a decline in net asset value per share of the Target
Fund due to declines in market values of securities in the Target
Fund's portfolio, the discharge of Target Fund liabilities, or the
redemption of Target Fund shares by Target Fund Shareholders shall not
constitute a material adverse change;
(h) At the date hereof and at the Closing Date, all federal and
other tax returns and reports of the Target Fund required by law to
have been filed by such dates (including any extensions) shall have
been filed and are or will be correct in all material respects, and
all federal and other taxes shown as due or required to be shown as
due on said returns and reports shall have been paid or provision
shall have been made for the payment thereof, and, to the best of the
Target Fund's knowledge, no such return is currently under audit and
no assessment has been asserted with respect to such returns;
(i) For each taxable year of its operation (including the taxable
year ending on the Closing Date), the Target Fund has met the
requirements of Subchapter M of the Code for qualification and
treatment as a regulated investment company and has elected to be
treated as such, has been eligible to and has computed its federal
income tax under Section 852 of the Code, and will have distributed
all of its investment company taxable income and net capital gain (as
defined in the Code) that has accrued through the Closing Date;
(j) All issued and outstanding shares of the Target Fund (i) have
been offered and sold in every state and the District of Columbia in
compliance in all material respects with applicable registration
requirements of the 1933 Act and state securities laws, (ii) are, and
on the Closing Date will be, duly and validly issued and outstanding,
fully paid and non-assessable and not subject to preemptive or
dissenter's rights, and (iii) will be held at the time of the Closing
by the persons and in the amounts set forth in the records of Hartford
Investor Services Company, as provided in section 3.4. The Target Fund
does not have outstanding any options, warrants or other rights to
subscribe for or purchase any of the Target Fund shares, nor is there
outstanding any security convertible into any of the Target Fund
shares;
(k) At the Closing Date, the Target Fund will have good and
marketable title to the Target Fund's assets to be transferred to the
Acquiring Fund pursuant to section 1.2 and full right, power and
authority to sell, assign, transfer and deliver such assets hereunder
free of any liens or other encumbrances, except those liens or
encumbrances as to which the Acquiring Fund has received notice at or
prior to the Closing, and upon delivery and payment for such assets,
the Acquiring Fund will acquire good and marketable title thereto,
subject to no restrictions on the full transfer thereof, including
such restrictions as might arise under the 1933 Act and the 1940 Act,
except those restrictions as to which the Acquiring Fund has received
notice and necessary documentation at or prior to the Closing;
(l) The execution, delivery and performance of this Agreement
will have been duly authorized prior to the Closing Date by all
necessary action on the part of the Board members of the Target
Corporation, (including the determinations required by Rule 17a-8(a)
under the 1940 Act), and, subject to the approval of the Target Fund
Shareholders, this Agreement constitutes a valid and binding
obligation of the Target Corporation, on behalf of the Target Fund,
enforceable in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws relating to or affecting creditors' rights
and to general equity principles;
(m) The information to be furnished by the Target Fund for use in
applications for orders, registration statements or proxy materials or
for use in any other document filed or to be filed with any federal,
state or local regulatory authority (including the National
Association of Securities Dealers, Inc. (the "NASD")), which may be
necessary in connection with the transactions contemplated hereby,
shall be accurate and complete in all material respects and shall
comply in all material respects with federal securities and other laws
and regulations applicable thereto;
(n) The current prospectus and statement of additional
information of the Target Fund conform in all material respects to the
applicable requirements of the 1933 Act and the 1940 Act and the rules
and regulations of the Commission thereunder and do 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; and
(o) The proxy statement of the Target Fund to be included in the
Registration Statement referred to in section 5.7 (the "Proxy
Statement"), insofar as it relates to the Target Fund, will, on the
effective date of the Registration Statement and on the Closing Date,
(i) comply in all material respects with the provisions and
Regulations of the 1933 Act, 1934 Act and 1940 Act, as applicable, and
(ii) not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
such statements are made, not materially misleading; provided,
however, that the representations and warranties in this section shall
not apply to statements in or omissions from the Proxy Statement and
the Registration Statement made in reliance upon and in conformity
with information that was furnished or should have been furnished by
the Acquiring Fund for use therein.
4.2. The Acquiring Corporation, on behalf of each Acquiring Fund,
represents and warrants to the respective Target Fund as follows:
(a) The Acquiring Corporation is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Maryland with power under the Acquiring Corporation's Charter, as
amended, to own all of its properties and assets and to carry on its
business as it is now being conducted and, subject to the approval of
shareholders of the Target Fund, to carry out the Agreement. The
Acquiring Fund is a separate series of the Acquiring Corporation duly
designated in accordance with the applicable provisions of the
Acquiring Corporation's Charter. The Acquiring Corporation and
Acquiring Fund are qualified to do business in all jurisdictions in
which they are required to be so qualified, except jurisdictions in
which the failure to so qualify would not have material adverse effect
on the Acquiring Corporation or Acquiring Fund. The Acquiring Fund has
all material federal, state and local authorizations necessary to own
all of the properties and assets and to carry on its business as now
being conducted, except authorizations that the failure to so obtain
would not have a material adverse effect on the Acquiring Fund;
(b) The Acquiring Corporation is registered with the Commission
as an open-end management investment company under the 1940 Act, and
such registration is in full force and effect and the Acquiring Fund
is in compliance in all material respects with the 1940 Act and the
rules and regulations thereunder;
(c) No consent, approval, authorization, or order of any court or
governmental authority is required for the consummation by the
Acquiring Fund of the transactions contemplated herein, except such as
have been obtained under the 1933 Act, the 1934 Act and the 1940 Act
and such as may be required by state securities laws;
(d) The Acquiring Corporation is not, and the execution, delivery
and performance of this Agreement by the Acquiring Corporation will
not result in (i) a violation of Maryland law or of the Acquiring
Corporation's Charter, as amended, or By-Laws, (ii) a violation or
breach of, or constitute a default under, any material agreement,
indenture, instrument, contract, lease or other undertaking known to
counsel to which the Acquiring Fund is a party or by which it is
bound, and the execution, delivery and performance of this Agreement
by the Acquiring Fund will not result in the acceleration of any
obligation, or the imposition of any penalty, under any agreement,
indenture, instrument, contract, lease, judgment or decree to which
the Acquiring Fund is a party or by which it is bound, or (iii) the
creation or imposition of any lien, charge or encumbrance on any
property or assets of the Acquiring Fund;
(e) No material litigation or administrative proceeding or
investigation of or before any court or governmental body is presently
pending or to its knowledge threatened against the Acquiring Fund or
any properties or assets held by it. The Acquiring Fund knows of no
facts that might form the basis for the institution of such
proceedings that would materially and adversely affect its business
and is not a party to or subject to the provisions of any order,
decree or judgment of any court or governmental body which materially
and adversely affects its business or its ability to consummate the
transactions herein contemplated;
(f) The Statements of Assets and Liabilities, Operations, and
Changes in Net Assets, the Financial Highlights, and the Investment
Portfolio of the Acquiring Fund at and for the fiscal year ended
December 31, 2001, have been audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
independent public accountants, and are in accordance with GAAP
consistently applied, and such statements (a copy of each of which has
been furnished to the Target Fund) present fairly, in all material
respects, the financial position of the Acquiring Fund as of such date
in accordance with GAAP, and there are no known contingent liabilities
of the Acquiring Fund required to be reflected on a balance sheet
(including the notes thereto) in accordance with GAAP as of such date
not disclosed therein;
(g) Since December 31, 2001, there has not been any material
adverse change in the Acquiring Fund's financial condition, assets,
liabilities or business other than changes occurring in the ordinary
course of business, or any incurrence by the Acquiring Fund of
indebtedness maturing more than one year from the date such
indebtedness was incurred except as otherwise disclosed to and
accepted in writing by the Target Fund. For purposes of this
subsection (g), a decline in net asset value per share of the
Acquiring Fund due to declines in market values of securities in the
Acquiring Fund's portfolio, the discharge of Acquiring Fund
liabilities, or the redemption of Acquiring Fund shares by Acquiring
Fund shareholders shall not constitute a material adverse change;
(h) At the date hereof and at the Closing Date, all federal and
other tax returns and reports of the Acquiring Fund required by law to
have been filed by such dates (including any extensions) shall have
been filed and are or will be correct in all material respects, and
all federal and other taxes shown as due or required to be shown as
due on said returns and reports shall have been paid or provision
shall have been made for the payment thereof, and, to the best of the
Acquiring Fund's knowledge, no such return is currently under audit
and no assessment has been asserted with respect to such returns;
(i) For each taxable year of its operation, the Acquiring Fund
has met the requirements of Subchapter M of the Code for qualification
and treatment as a regulated investment company and has elected to be
treated as such, has been eligible to and has computed its federal
income tax under Section 852 of the Code, and will do so for the
taxable year including the Closing Date;
(j) All issued and outstanding shares of the Acquiring Fund (i)
have been offered and sold in every state and the District of Columbia
in compliance in all material respects with applicable registration
requirements of the 1933 Act and state securities laws and (ii) are,
and on the Closing Date will be, duly and validly issued and
outstanding, fully paid and non-assessable, and not subject to
preemptive or dissenter's rights. The Acquiring Fund does not have
outstanding any options, warrants or other rights to subscribe for or
purchase any of the Acquiring Fund shares, nor is there outstanding
any security convertible into any of the Acquiring Fund shares;
(k) The Acquiring Fund Shares to be issued and delivered to the
Target Fund, for the account of the Target Fund Shareholders, pursuant
to the terms of this Agreement, will at the Closing Date have been
duly authorized and, when so issued and delivered, will be duly and
validly issued and outstanding Acquiring Fund Shares, and will be
fully paid and non-assessable;
(l) At the Closing Date, the Acquiring Fund will have good and
marketable title to the Acquiring Fund's assets, free of any liens or
other encumbrances, except those liens or encumbrances as to which the
Target Fund has received notice at or prior to the Closing;
(m) The execution, delivery and performance of this Agreement
will have been duly authorized prior to the Closing Date by all
necessary action on the part of the Board members of the Acquiring
Corporation (including the determinations required by Rule 17a-8(a)
under the 1940 Act), and this Agreement will constitute a valid and
binding obligation of the Acquiring Corporation, on behalf of the
Acquiring Fund, enforceable in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws relating to or affecting
creditors' rights and to general equity principles;
(n) The information to be furnished by the Acquiring Fund for use
in applications for orders, registration statements or proxy materials
or for use in any other document filed or to be filed with any
federal, state or local regulatory authority (including the NASD),
which may be necessary in connection with the transactions
contemplated hereby, shall be accurate and complete in all material
respects and shall comply in all material respects with federal
securities and other laws and regulations applicable thereto;
(o) The current prospectus and statement of additional
information of the Acquiring Fund conform in all material respects to
the applicable requirements of the 1933 Act and the 1940 Act and the
rules and regulations of the Commission thereunder and do 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;
(p) The Proxy Statement to be included in the Registration
Statement, only insofar as it relates to the Acquiring Fund, will, on
the effective date of the Registration Statement and on the Closing
Date, (i) comply in all material respects with the provisions and
Regulations of the 1933 Act, 1934 Act, and 1940 Act and (ii) not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which such
statements were made, not materially misleading; provided, however,
that the representations and warranties in this section shall not
apply to statements in or omissions from the Proxy Statement and the
Registration Statement made in reliance upon and in conformity with
information that was furnished or should have been furnished by the
Target Fund for use therein; and
(q) The Acquiring Fund agrees to use all reasonable efforts to
obtain the approvals and authorizations required by the 1933 Act, the
1940 Act and such of the state securities laws as may be necessary in
order to continue its operations after the Closing Date.
5. COVENANTS OF EACH ACQUIRING FUND AND EACH TARGET FUND
5.1. Each Fund covenants to operate its business in the ordinary
course between the date hereof and the Closing Date, it being understood that
(a) such ordinary course of business will include (i) the declaration and
payment of customary dividends and other distributions and (ii) such changes as
are contemplated by the Fund's normal operations; and (b) each Fund shall retain
exclusive control of the composition of its portfolio until the Closing Date. No
party shall take any action that would, or reasonably would be expected to,
result in any of its representations and warranties set forth in this Agreement
being or becoming untrue in any material respect. Each Fund covenants and agrees
to coordinate the respective portfolios of each Acquiring Fund and each Target
Fund from the date of the Agreement up to and including the Closing Date in
order that at Closing, when the Assets are added to each Acquiring Fund's
portfolio, the resulting portfolio will meet the applicable Acquiring Fund's
investment objective, policies and restrictions, as set forth in the Acquiring
Funds' Prospectus, a copy of which has been delivered to each Target Fund.
5.2. Upon reasonable notice, each Acquiring Fund's officers and agents
shall have reasonable access to its corresponding Target Fund's books and
records necessary to maintain current knowledge of its corresponding Target Fund
and to ensure that the representations and warranties made by its corresponding
Target Fund are accurate.
5.3. Each Target Fund covenants to call a meeting of the Target Fund
Shareholders entitled to vote thereon to consider and act upon this Agreement
and to take all other reasonable action necessary to obtain approval of the
transactions contemplated herein. Such meeting shall be scheduled for no later
than January 15, 2003.
5.4. Each Target Fund covenants that the Acquiring Fund Shares to be
issued hereunder are not being acquired for the purpose of making any
distribution thereof other than in accordance with the terms of this Agreement.
5.5. Each Target Fund covenants that it will assist its corresponding
Acquiring Fund in obtaining such information as the Acquiring Fund reasonably
requests concerning the beneficial ownership of the Target Fund shares.
5.6. Subject to the provisions of this Agreement, each Fund will take,
or cause to be taken, all actions, and do or cause to be done, all things
reasonably necessary, proper and/or advisable to consummate and make effective
the transactions contemplated by this Agreement.
5.7. Each Fund covenants to prepare in compliance with the 1933 Act,
the 1934 Act and the 1940 Act the Registration Statement on Form N-14 (the
"Registration Statement") in connection with the meeting of the Target Fund
Shareholders to consider approval of this Agreement and the transactions
contemplated herein. Each Acquiring Fund will file the Registration Statement,
including the Proxy Statement, with the Commission. Each Target Fund will
provide its corresponding Acquiring Fund with information reasonably necessary
for the preparation of a prospectus, which will include the Proxy Statement
referred to in section 4.1(o), all to be included in the Registration Statement,
in compliance in all material respects with the 1933 Act, the 1934 Act and the
1940 Act.
5.8. Each Target Fund covenants that it will, from time to time, as
and when reasonably requested by its corresponding Acquiring Fund, execute and
deliver or cause to be executed and delivered all such assignments and other
instruments, and will take or cause to be taken such further action as the
Acquiring Fund may reasonably deem necessary or desirable in order to vest in
and confirm the Acquiring Fund's title to and possession of all the assets and
otherwise to carry out the intent and purpose of this Agreement.
5.9. Each Acquiring Fund covenants to use all reasonable efforts to
obtain the approvals and authorizations required by the 1933 Act and 1940 Act,
and such of the state securities laws as it deems appropriate in order to
continue its operations after the Closing Date and to consummate the
transactions contemplated herein; provided, however, that each Acquiring Fund
may take such actions it reasonably deems advisable after the Closing Date as
circumstances change.
5.10. Each Acquiring Fund covenants that it will, from time to time,
as and when reasonably requested by its corresponding Target Fund, execute and
deliver or cause to be executed and delivered all such assignments, assumption
agreements, releases, and other instruments, and will take or cause to be taken
such further action, as its corresponding Target Fund may reasonably deem
necessary or desirable in order to (i) vest and confirm to the Target Fund title
to and possession of all Acquiring Fund shares to be transferred to the Target
Fund pursuant to this Agreement and (ii) assume the liabilities from the Target
Fund.
5.11. As soon as reasonably practicable after the Closing, each Target
Fund shall make a liquidating distribution to its shareholders consisting of the
Acquiring Fund Shares received at the Closing.
5.12. Each Fund shall use its reasonable best efforts to fulfill or
obtain the fulfillment of the conditions precedent to effect the transactions
contemplated by this Agreement as promptly as practicable.
5.13. The intention of the parties is that each transaction will
qualify as a reorganization within the meaning of Section 368(a) of the Code.
Neither the Corporations nor the Funds shall take any action, or cause any
action to be taken (including, without limitation, the filing of any tax return)
that is inconsistent with such treatment or results in the failure of a
transaction to qualify as a reorganization within the meaning of Section 368(a)
of the Code. At or prior to the Closing Date, each Corporation and each Fund
will take such action, or cause such action to be taken, as is reasonably
necessary to enable Dechert to render the tax opinion contemplated herein in
section 8.5.
5.14. At or immediately prior to the Closing, each Target Fund may
declare and pay to its stockholders a dividend or other distribution in an
amount large enough so that it will have distributed substantially all (and in
any event not less than 98%) of its investment company taxable income (computed
without regard to any deduction for dividends paid) and realized net capital
gain, if any, for the current taxable year through the Closing Date.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH TARGET FUND
With respect to each Reorganization, the obligations of a Target Fund
to consummate the transactions provided for herein shall be subject, at its
election, to the performance by its corresponding Acquiring Fund of all the
obligations to be performed by it hereunder on or before the Closing Date, and,
in addition thereto, the following further conditions:
6.1. All representations and warranties of the Acquiring Corporation,
on behalf of each Acquiring Fund, contained in this Agreement shall be true and
correct in all material respects as of the date hereof and, except as they may
be affected by the transactions contemplated by this Agreement, as of the
Closing Date, with the same force and effect as if made on and as of the Closing
Date; and there shall be (i) no pending or threatened litigation brought by any
person (other than a Target Fund, its adviser or any of their affiliates)
against an Acquiring Fund or its investment adviser(s), Board members or
officers arising out of this Agreement and (ii) no facts known to any Acquiring
Fund which an Acquiring Fund reasonably believes might result in such
litigation.
6.2. Each Acquiring Fund shall have delivered to its corresponding
Target Fund on the Closing Date a certificate executed in its name by its
President or a Vice President, in a form reasonably satisfactory to the Target
Corporation, on behalf of the Target Fund, and dated as of the Closing Date, to
the effect that the representations and warranties of the Acquiring Corporation
with respect to the Acquiring Fund made in this Agreement are true and correct
on and as of the Closing Date, except as they may be affected by the
transactions contemplated by this Agreement, and as to such other matters as the
Target Fund shall reasonably request.
6.3. Each Target Fund shall have received on the Closing Date an
opinion of counsel, in a form reasonably satisfactory to the Target Fund, and
dated as of the Closing Date, to the effect that:
(a) The Acquiring Corporation is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Maryland; (b) the Acquiring Fund has the power to carry on its
business as presently conducted in accordance with the description
thereof in the Acquiring Corporation's registration statement under
the 1940 Act; (c) the Agreement has been duly authorized, executed and
delivered by the Acquiring Corporation, on behalf of the Acquiring
Fund, and constitutes a valid and legally binding obligation of the
Acquiring Corporation, on behalf of the Acquiring Fund, enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; (d) the execution and delivery of the
Agreement did not, and the exchange of the Target Fund's assets for
Acquiring Fund Shares pursuant to the Agreement will not, violate the
Acquiring Corporation's Charter, as amended, or By-laws; and (e) to
the knowledge of such counsel, and without any independent
investigation, (i) the Acquiring Corporation is not subject to any
litigation or other proceedings that might have a materially adverse
effect on the operations of the Acquiring Corporation, (ii) the
Acquiring Corporation is duly registered as an investment company with
the Commission and is not subject to any stop order; and (iii) all
regulatory consents, authorizations, approvals or filings required to
be obtained or made by the Acquiring Fund under the federal laws of
the United States or the laws of the State of Maryland for the
exchange of the Target Fund's assets for Acquiring Fund Shares,
pursuant to the Agreement have been obtained or made.
In rendering such opinion, such counsel may (1) rely, as to matters
governed by the laws of the State of Maryland, on an opinion of competent
Maryland counsel, (2) make assumptions regarding the authenticity, genuineness,
and/or conformity of documents and copies thereof without independent
verification thereof, (3) limit such opinion to applicable federal and state
law, and (4) define the word "knowledge" and related terms to mean the knowledge
of attorneys then with such counsel who have devoted substantive attention to
matters directly related to this Agreement and the Reorganization.
The delivery of such opinion is conditioned upon receipt by counsel of
customary representations it shall reasonably request of each of the Acquiring
Corporation and the Target Corporation, on behalf of each of the Acquiring Funds
and the Target Funds, respectively.
6.4. Each Acquiring Fund shall have performed all of the covenants and
complied with all of the provisions required by this Agreement to be performed
or complied with by each Acquiring Fund on or before the Closing Date.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH ACQUIRING FUND
With respect to each Reorganization, the obligations of an Acquiring
Fund to consummate the transactions provided for herein shall be subject, at its
election, to the performance by its corresponding Target Fund of all of the
obligations to be performed by it hereunder on or before the Closing Date and,
in addition thereto, the following further conditions:
7.1. All representations and warranties of the Target Corporation, on
behalf of each Target Fund, contained in this Agreement shall be true and
correct in all material respects as of the date hereof and, except as they may
be affected by the transactions contemplated by this Agreement, as of the
Closing Date, with the same force and effect as if made on and as of the Closing
Date; and there shall be (i) no pending or threatened litigation brought by any
person (other than an Acquiring Fund, its adviser or any of their affiliates)
against a Target Fund or its investment adviser(s), Board members or officers
arising out of this Agreement and (ii) no facts known to any Target Fund which a
Target Fund reasonably believes might result in such litigation.
7.2. Each Target Fund shall have delivered to its corresponding
Acquiring Fund a statement of the Target Fund's assets and liabilities as of the
Closing Date, certified by the Treasurer of the Target Fund.
7.3. Each Target Fund shall have delivered to its corresponding
Acquiring Fund on the Closing Date a certificate executed in its name by its
President or a Vice President, in a form reasonably satisfactory to the
Acquiring Corporation, on behalf of the Acquiring Fund, and dated as of the
Closing Date, to the effect that the representations and warranties of the
Target Corporation with respect to the Target Fund made in this Agreement are
true and correct on and as of the Closing Date, except as they may be affected
by the transactions contemplated by this Agreement, and as to such other matters
as the Acquiring Fund shall reasonably request.
7.4. Each Acquiring Fund shall have received on the Closing Date an
opinion of counsel, in a form reasonably satisfactory to the Acquiring Fund, and
dated as of the Closing Date, to the effect that:
(a) The Target Corporation is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Maryland; (b) the Target Fund has the power to carry on its business
as presently conducted in accordance with the description thereof in
the Target Corporation's registration statement under the 1940 Act;
(c) the Agreement has been duly authorized, executed and delivered by
the Target Corporation, on behalf of the Target Fund, and constitutes
a valid and legally binding obligation of the Target Corporation, on
behalf of the Target Fund, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and laws of general applicability relating
to or affecting creditors' rights and to general equity principles;
(d) the execution and delivery of the Agreement did not, and the
exchange of the Target Fund's assets for Acquiring Fund Shares
pursuant to the Agreement will not, violate the Target Corporation's
Charter, as amended, or By-laws; and (e) to the knowledge of such
counsel, and without any independent investigation, (i) the Target
Corporation is not subject to any litigation or other proceedings that
might have a materially adverse effect on the operations of the Target
Corporation, (ii) the Target Corporation is duly registered as an
investment company with the Commission and is not subject to any stop
order, and (iii) all regulatory consents, authorizations, approvals or
filings required to be obtained or made by the Target Fund under the
federal laws of the United States or the laws of the State of Maryland
for the exchange of the Target Fund's assets for Acquiring Fund
Shares, pursuant to the Agreement have been obtained or made.
In rendering such opinion, such counsel may (1) rely, as to matters
governed by the laws of the State of Maryland, on an opinion of competent
Maryland counsel, (2) make assumptions regarding the authenticity, genuineness,
and/or conformity of documents and copies thereof without independent
verification thereof, (3) limit such opinion to applicable federal and state
law, and (4) define the word "knowledge" and related terms to mean the knowledge
of attorneys then with such counsel who have devoted substantive attention to
matters directly related to this Agreement and the Reorganization.
The delivery of such opinion is conditioned upon receipt by counsel of
customary representations it shall reasonably request of each of the Acquiring
Corporation and the Target Corporation, on behalf of each of the Acquiring Funds
and the Target Funds, respectively.
7.5. Each Target Fund shall have performed all of the covenants and
complied with all of the provisions required by this Agreement to be performed
or complied with by each Target Fund on or before the Closing Date.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH ACQUIRING FUND AND
EACH TARGET FUND
If any of the conditions set forth below have not been met on or before
the Closing Date with respect to each Target Fund or its corresponding Acquiring
Fund, the other party to this Agreement shall, at its option, not be required to
consummate the transactions contemplated by this Agreement:
8.1. This Agreement and the transactions contemplated herein, with
respect to each Target Fund, shall have been approved by the requisite vote of
the holders of the outstanding shares of the Target Fund in accordance with the
provisions of the Target Corporation's Charter, as amended, and By-Laws,
applicable Maryland law and the 1940 Act, and certified copies of the
resolutions evidencing such approval shall have been delivered to its
corresponding Acquiring Fund. Notwithstanding anything herein to the contrary,
neither the Acquiring Funds nor the Target Funds may waive the conditions set
forth in this section 8.1.
8.2. On the Closing Date, no action, suit or other proceeding shall be
pending or to its knowledge threatened before any court or governmental agency
in which it is sought to restrain or prohibit, or obtain material damages or
other relief in connection with, this Agreement or the transactions contemplated
herein.
8.3. All consents of other parties and all other consents, orders and
permits of federal, state and local regulatory authorities deemed necessary by
an Acquiring Fund or a Target Fund to permit consummation, in all material
respects, of the transactions contemplated hereby shall have been obtained,
except where failure to obtain any such consent, order or permit would not
involve a risk of a material adverse effect on the assets or properties of an
Acquiring Fund or a Target Fund, provided that either party hereto may for
itself waive any of such conditions.
8.4. 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, threatened
or contemplated under the ▇▇▇▇ ▇▇▇.
8.5. The parties shall have received an opinion of Dechert addressed
to each of the Acquiring Funds and the Target Funds, in a form reasonably
satisfactory to each such party to this Agreement, substantially to the effect
that, based upon certain facts, assumptions and representations of the parties,
for federal income tax purposes: (i) the transfer to the Acquiring Fund of all
or substantially all of the assets of the Target Fund in exchange solely for
Acquiring Fund Shares and the assumption by the Acquiring Fund of all of the
liabilities of the Target Fund, followed by the distribution of such shares to
the Target Fund Shareholders in exchange for their shares of the Target Fund in
complete liquidation of the Target Fund, will constitute a "reorganization"
within the meaning of Section 368(a)(1) of the Code, and the Acquiring Fund and
the Target Fund will each be "a party to a reorganization" within the meaning of
Section 368(b) of the Code; (ii) no gain or loss will be recognized by the
Target Fund upon the transfer of all or substantially all of its assets to the
Acquiring Fund in exchange solely for Acquiring Fund Shares and the assumption
by the Acquiring Fund of all of the liabilities of the Target Fund; (iii) the
basis of the assets of the Target Fund in the hands of the Acquiring Fund will
be the same as the basis of such assets of the Target Fund immediately prior to
the transfer; (iv) the holding period of the assets of the Target Fund in the
hands of the Acquiring Fund will include the period during which such assets
were held by the Target Fund; (v) no gain or loss will be recognized by the
Acquiring Fund upon the receipt of the assets of the Target Fund in exchange for
Acquiring Fund Shares and the assumption by the Acquiring Fund of all of the
liabilities of the Target Fund; (vi) no gain or loss will be recognized by
Target Fund Shareholders upon the receipt of the Acquiring Fund Shares solely in
exchange for their shares of the Target Fund as part of the transaction; (vii)
the basis of the Acquiring Fund Shares received by Target Fund Shareholders will
be the same as the basis of the shares of the Target Fund exchanged therefor;
and (viii) the holding period of Acquiring Fund Shares received by Target Fund
Shareholders will include the holding period during which the shares of the
Target Fund exchanged therefor were held, provided that at the time of the
exchange the shares of the Target Fund were held as capital assets in the hands
of Target Fund Shareholders. The delivery of such opinion is conditioned upon
receipt by Dechert of representations it shall request of each of the Acquiring
Corporation and the Target Corporation. Notwithstanding anything herein to the
contrary, neither the Acquiring Funds nor the Target Funds may waive the
condition set forth in this section 8.5. No opinion will be expressed by
Dechert, however, as to whether any gain or loss will be recognized (i) by a
Target Fund in connection with the transfer from the Target Fund to an Acquiring
Fund of any section 1256 contracts (as defined in Section 1256 of the Code) or
(ii) by a Target Fund or an Acquiring Fund in connection with any dispositions
of assets by such Fund prior to or following its respective Reorganization.
9. INDEMNIFICATION
9.1. Each Acquiring Fund agrees to indemnify and hold harmless its
corresponding Target Fund and each of such Target Fund's Board members and
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 jointly and severally, the
Target Fund or any of its Board members or officers may become subject, insofar
as any such loss, claim, damage, liability or expense (or actions with respect
thereto) arises out of or is based on any breach by the Acquiring Fund of any of
its representations, warranties, covenants or agreements set forth in this
Agreement.
9.2. Each Target Fund agrees to indemnify and hold harmless its
corresponding Acquiring Fund and each of such Acquiring Fund's Board members and
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 jointly and severally, the
Acquiring Fund or any of its Board members or officers may become subject,
insofar as any such loss, claim, damage, liability or expense (or actions with
respect thereto) arises out of or is based on any breach by the Target Fund of
any of its representations, warranties, covenants or agreements set forth in
this Agreement.
10. FEES AND EXPENSES
10.1. Each of the Acquiring Corporation, on behalf of the Acquiring
Funds, and the Target Corporation, on behalf of the Target Funds, represents and
warrants to the other that it has no obligations to pay any brokers or finders
fees in connection with the transactions provided for herein.
10.2. HL Advisors, or affiliates thereof, will bear all the expenses
associated with the Reorganization. Any such expenses so borne by HL Advisors,
or affiliates thereof, will be solely and directly related to the
Reorganization, within the meaning of Revenue Ruling 73-54, 1973-1 C.B. 187.
Target Fund Shareholders will pay their own expenses, if any, incurred in
connection with the Reorganization.
11. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
11.1. Each Fund agrees that no party has made any representation,
warranty or covenant not set forth herein and that this Agreement constitutes
the entire agreement between the parties.
11.2. Except as specified in the next sentence set forth in this
section 11.2, the 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.
The covenants to be performed after the Closing and the obligations of each of
the Acquiring Funds and the Target Funds in sections 9.1 and 9.2 shall survive
the Closing.
12. TERMINATION
12.1. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned by any party as it relates to the
transaction applicable to such party (i) by the mutual agreement of the parties,
or (ii) by either party if the Closing shall not have occurred on or before
April 1, 2003, unless such date is extended by mutual agreement of the parties,
or (iii) by either party if the other party shall have materially breached its
obligations under this Agreement or made a material and intentional
misrepresentation herein or in connection herewith. In the event of any such
termination, this Agreement shall become void and there shall be no liability
hereunder on the part of any party or their respective Board members or
officers, except for any such material breach or intentional misrepresentation,
as to each of which all remedies at law or in equity of the party adversely
affected shall survive.
13. AMENDMENTS
This Agreement may be amended, modified or supplemented in such manner
as may be mutually agreed upon in writing by any authorized officer of the
Target Funds and any authorized officer of the Acquiring Funds; provided,
however, that following each meeting of the Target Fund Shareholders called by
the Target Funds pursuant to section 5.3 of this Agreement, no such amendment
may have the effect of changing the provisions for determining the number of the
Acquiring Fund Shares to be issued to the Target Fund Shareholders under this
Agreement to the detriment of such shareholders without their further approval.
14. NOTICES
Any notice, report, statement or demand required or permitted by any
provisions of this Agreement shall be in writing and shall be deemed duly given
if delivered by hand (including by Federal Express or similar express courier)
or transmitted by facsimile or three days after being mailed by prepaid
registered or certified mail, return receipt requested, addressed to the
applicable Target Fund, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with
a copy to Dechert, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ -- ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇'▇▇▇▇▇▇, Esq., or to the applicable Acquiring
Fund, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to Dechert,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ -- ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
▇▇▇▇ ▇. ▇'▇▇▇▇▇▇, Esq., or to any other address that the Target Funds or the
Acquiring Funds shall have last designated by notice to the other party.
15. HEADINGS; COUNTERPARTS; ASSIGNMENT; LIMITATION OF LIABILITY
15.1. The Article and section headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15.2. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original.
15.3. This Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns, but no assignment or
transfer hereof or of any rights or obligations hereunder shall be made by any
party without the written consent of the other party. Nothing herein expressed
or implied is intended or shall be construed to confer upon or give any person,
firm or corporation, other than the parties hereto and the shareholders of each
Acquiring Fund and each Target Fund and their respective successors and assigns,
any rights or remedies under or by reason of this Agreement.
15.4. Notwithstanding anything to the contrary contained in this
Agreement, the obligations, agreements, representations and warranties with
respect to each Fund shall constitute the obligations, agreements,
representations and warranties of that Fund only (the "Obligated Fund"), and in
no event shall any other series of the Corporations or the assets of any such
series be held liable with respect to the breach or other default by the
Obligated Fund of its obligations, agreements, representations and warranties as
set forth herein.
15.5. This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Maryland, without regard to its
principles of conflicts of laws.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by an authorized officer and its seal to be affixed
thereto and attested by its Secretary or Assistant Secretary.
HARTFORD SERIES FUND, INC.
on behalf of Hartford International
Opportunities HLS Fund, Hartford Global
Leaders HLS Fund, Hartford Growth and
Income HLS Fund and Hartford Stock HLS
Fund
Attest:
/s/▇▇▇▇▇ ▇. ▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ---------------------------------------
--------------------------- By: ▇▇▇▇▇ ▇. ▇▇▇▇
Asstistant Secretary ------------------------------------
Its: Vice President
-----------------------------------
HARTFORD HLS SERIES FUND II, INC.
on behalf of Hartford International
Stock II HLS Fund, Hartford Global
Equity HLS Fund, Hartford Blue Chip
Stock II HLS Fund, Hartford Investors
Growth HLS Fund and Hartford American
Leaders HLS Fund
Attest:
/s/▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------- -----------------------------------
Assistant Secretary Its: Vice President
-----------------------------------
AGREED TO AND ACKNOWLEDGED
ONLY WITH RESPECT TO
PARAGRAPH 10.2 HERETO
HL INVESTMENT ADVISORS, LLC /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Its: Senior Vice President
------------------------------------
SCHEDULE A
TARGET FUND ACQUIRING FUND
Hartford International Stock II Hartford International Opportunities
HLS Fund HLS Fund
Hartford Global Equity HLS Fund Hartford Global Leaders HLS Fund
Hartford Blue Chip Stock II HLS Fund Hartford Growth and Income HLS Fund
Hartford Investors Growth HLS Fund Hartford Growth and Income HLS Fund
Hartford American Leaders HLS Fund Hartford Stock HLS Fund