Exhibit 99.B(4)
FORM OF AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as of
this 7th day of June, 2006, by and between ING Variable Portfolios, Inc., a
Maryland corporation with its principal place of business at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("IVPI"), on behalf of its
series, ING VP Growth Portfolio (the "Acquiring Portfolio"), and ING Partners,
Inc., a Maryland corporation with its principal place of business at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("IPI"), on behalf of its
series, ING ▇▇▇▇▇▇▇ ▇▇▇▇▇(R) Capital Growth Portfolio (the "Acquired
Portfolio").
This Agreement is intended to be and is adopted as a plan of reorganization
and liquidation within the meaning of Section 368(a)(1) of the United States
Internal Revenue Code of 1986, as amended (the "Code"). The reorganization (the
"Reorganization") will consist of the transfer of all of the assets of the
Acquired Portfolio to the Acquiring Portfolio in exchange solely for I Class, S
Class and ADV Class voting shares of common stock of the Acquiring Portfolio
(the "Acquiring Portfolio Shares"), the assumption by the Acquiring Portfolio of
the liabilities of the Acquired Portfolio described in paragraph 1.3, and the
distribution of the Acquiring Portfolio Shares to the shareholders of the
Acquired Portfolio in complete liquidation of the Acquired Portfolio as provided
herein, all upon the terms and conditions hereinafter set forth in this
Agreement.
WHEREAS, the Acquired Portfolio and the Acquiring Portfolio are series of
open-end, registered investment companies of the management type, and the
Acquired Portfolio owns securities which generally are assets of the character
in which the Acquiring Portfolio is permitted to invest; and
WHEREAS, the Board of Directors of IVPI has determined that the exchange of
all of the assets of the Acquired Portfolio for Acquiring Portfolio Shares and
the assumption of the liabilities of the Acquired Portfolio described in
paragraph 1.3 by the Acquiring Portfolio is in the best interests of the
Acquiring Portfolio and its shareholders and that the interests of the existing
shareholders of the Acquiring Portfolio would not be diluted as a result of this
transaction; and
WHEREAS, the Board of Directors of IPI has determined that the exchange of
all of the assets of the Acquired Portfolio for Acquiring Portfolio Shares and
the assumption of the liabilities described in paragraph 1.3 of the Acquired
Portfolio by the Acquiring Portfolio is in the best interests of the Acquired
Portfolio and its shareholders and that the interests of the existing
shareholders of the Acquired Portfolio would 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 PORTFOLIO TO THE ACQUIRING PORTFOLIO IN
EXCHANGE FOR THE ACQUIRING PORTFOLIO SHARES, THE ASSUMPTION OF ALL KNOWN
ACQUIRED PORTFOLIO LIABILITIES AND THE LIQUIDATION OF THE ACQUIRED
PORTFOLIO
1.1. Subject to the requisite approval of the Acquired Portfolio
shareholders and the other terms and conditions herein set forth and on the
basis of the representations and warranties contained herein, the Acquired
Portfolio agrees to transfer all of the Acquired Portfolio's assets, as set
forth in paragraph 1.2, to the Acquiring Portfolio, and the Acquiring Portfolio
agrees in exchange therefor: (i) to deliver to the Acquired Portfolio the number
of full and fractional I Class, S Class and ADV Class Acquiring Portfolio Shares
determined by dividing the value of the Acquired Portfolio's net assets,
computed in the manner and as of the time and date set forth in paragraph 2.1,
by the net asset value of one Acquiring Portfolio Share of the same class,
computed in the manner and as of the time and date set forth in paragraph 2.2;
and (ii) to assume the liabilities of the Acquired Portfolio, as set forth in
paragraph 1.3. Such transactions shall take place at the closing provided for in
paragraph 3.1 (the "Closing").
1.2. The assets of the Acquired Portfolio to be acquired by the Acquiring
Portfolio shall consist of all assets and property, including, without
limitation, all cash, securities, commodities and futures interests and
dividends or interests receivable that are owned by the Acquired Portfolio and
any deferred or prepaid expenses shown as an asset on the books of the Acquired
Portfolio on the closing date provided for in paragraph 3.1 (the "Closing Date")
(collectively, "Assets").
1.3. The Acquired Portfolio will endeavor to discharge all of its known
liabilities and obligations prior to the Closing Date. The Acquiring Portfolio
shall assume the liabilities of the Acquired Portfolio set forth in the Acquired
Portfolio's statement of assets and liabilities as of the Closing Date delivered
by IPI, on behalf of the Acquired Portfolio, to IVPI, on behalf of the Acquiring
Portfolio, pursuant to paragraph 7.2 hereof. On or as soon as practicable prior
to the Closing Date, the Acquired Portfolio 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.
1.4. Immediately after the transfer of assets provided for in paragraph
1.1, the Acquired Portfolio will distribute to the Acquired Portfolio's
shareholders of record of its I Class, S Class and ADV Class shares, determined
as of immediately after the close of business on the Closing Date (the "Acquired
Portfolio Shareholders"), on a PRO RATA basis, the Acquiring Portfolio Shares of
the corresponding class received by the Acquired Portfolio pursuant to paragraph
1.1, and will completely liquidate. Such distribution and liquidation will be
accomplished, with respect to the Acquired Portfolio's shares, by the transfer
of the Acquiring Portfolio Shares then credited to the account of the Acquired
Portfolio on the books of the Acquiring Portfolio to open accounts on the share
records of the Acquiring Portfolio in the names of the Acquired Portfolio
Shareholders. The aggregate net asset value of I Class, S Class and ADV Class
shares of Acquiring Portfolio to be so credited to the corresponding class of
Acquired Portfolio Shareholders shall be equal to the aggregate net asset value
of the Acquired Portfolio shares owned by such shareholders on the Closing Date.
All issued and outstanding shares of the Acquired Portfolio will simultaneously
be canceled on the books of the Acquired Portfolio, although share certificates
representing interests in I Class, S Class and ADV Class shares of the Acquired
Portfolio will represent a number of the corresponding class of Acquiring
Portfolio Shares after the Closing Date, as determined in accordance with
Section 2.3. The Acquiring Portfolio shall not issue certificates representing
the I Class, S Class and ADV Class Acquiring Portfolio Shares in connection with
such exchange.
1.5. Ownership of Acquiring Portfolio Shares will be shown on the books
of the Acquiring Portfolio's transfer agent, as defined in paragraph 3.3.
1.6. Any reporting responsibility of the Acquired Portfolio including,
but not limited to, the responsibility for filing of regulatory reports, tax
returns, or other documents with the U.S. Securities and Exchange Commission
(the "Commission"), any state securities commission, and any federal, state or
local tax authorities or any other relevant regulatory authority, is and shall
remain the responsibility of the Acquired Portfolio.
2. VALUATION
2.1. The value of the Assets shall be the value computed as of
immediately after the close of business of the New York Stock Exchange and after
the declaration of any dividends on the Closing Date (such time and date being
hereinafter called the "Valuation Date"), using the valuation procedures in the
then-current prospectus and statement of additional information with respect to
the Acquiring Portfolio, and valuation procedures established by the Acquiring
Portfolio's Board of Directors.
2.2. The net asset value of a I Class, S Class and ADV Class Acquiring
Portfolio Share shall be the net asset value per share computed with respect to
that class as of the Valuation Date, using the valuation procedures set forth in
the Acquiring Portfolio's then-current prospectus and statement of additional
information and valuation procedures established by the Acquiring Portfolio's
Board of Directors.
2.3. The number of the I Class, S Class and ADV Class Acquiring Portfolio
Shares to be issued (including fractional shares, if any) in exchange for the
Acquired Portfolio's assets shall be determined by dividing the value of the net
assets with respect to the I Class, S Class and ADV Class shares of the Acquired
Portfolio, determined using the same valuation procedures referred to in
paragraph 2.1, by the net asset value of an Acquiring Portfolio Share,
determined in accordance with paragraph 2.2.
2.4. All computations of value shall be made by the Acquired Portfolio's
designated record keeping agent and shall be subject to review by Acquiring
Portfolio's record keeping agent and by each Portfolio's respective independent
accountants.
3. CLOSING AND CLOSING DATE
3.1. The Closing Date shall be November 4, 2006, or such other date as
the parties may agree. All acts taking place at the Closing shall be deemed to
take place simultaneously as of immediately after the close of business on the
Closing Date unless otherwise agreed to by the parties. The close of business on
the Closing Date shall be as of 4:00 p.m., Eastern Time. The Closing shall be
held at the offices of the Acquiring Portfolio or at such other time and/or
place as the parties may agree.
3.2. The Acquired Portfolio shall direct The Bank of New York, as
custodian for the Acquired Portfolio (the "Custodian"), to deliver, at the
Closing, a certificate of an authorized officer stating that (i) the Assets
shall have been delivered in proper form to the Acquiring Portfolio within two
business days prior to or on the Closing Date, and (ii) all necessary taxes in
connection with the delivery of the Assets, including all applicable federal and
state stock transfer stamps, if any, have been paid or provision for payment has
been made. The Acquired Portfolio's portfolio securities represented by a
certificate or other written instrument shall be presented for examination by
the Acquired Portfolio Custodian to the custodian for the Acquiring Portfolio no
later than five business days preceding the Closing Date, and shall be
transferred and delivered by the Acquired Portfolio as of the Closing Date for
the account of the Acquiring Portfolio duly endorsed in proper form for transfer
in such condition as to constitute good delivery thereof. The Custodian shall
deliver as of the Closing Date by book entry, in accordance with the customary
practices of the Custodian and any securities depository (as defined in Rule
17f-4 under the Investment Company Act of 1940, as amended (the "1940 Act")) in
which the Acquired Portfolio's Assets are deposited, the Acquired Portfolio's
portfolio securities and instruments deposited with such depositories. The cash
to be transferred by the Acquired Portfolio shall be delivered by wire transfer
of federal funds on the Closing Date.
3.3. The Acquired Portfolio shall direct DST Systems, Inc. (the "Transfer
Agent"), on behalf of the Acquired Portfolio, to deliver at the Closing a
certificate of an authorized officer stating that its records contain the names
and addresses of the Acquired Portfolio Shareholders and the number and
percentage ownership of outstanding I Class, S Class and ADV Class shares owned
by each such shareholder immediately prior to the Closing. The Acquiring
Portfolio shall issue and deliver a confirmation evidencing the Acquiring
Portfolio Shares to be credited on the Closing Date to the Secretary of the
Acquiring Portfolio, or provide evidence satisfactory to the Acquired Portfolio
that such Acquiring Portfolio Shares have been credited to the Acquired
Portfolio's account on the books of the Acquiring Portfolio. At the Closing each
party shall deliver to the other such bills of sale, checks, assignments, share
certificates, if any, receipts or other documents as such other party or its
counsel may reasonably request.
3.4. In the event that on the Valuation Date (a) the New York Stock
Exchange or another primary trading market for portfolio securities of the
Acquiring Portfolio or the Acquired Portfolio shall be closed to trading or
trading thereupon shall be restricted; or (b) trading or the reporting of
trading on such Exchange or elsewhere shall be disrupted so that, in the
judgment of the Board of Directors of the Acquired Portfolio or the Board of
Directors of the Acquiring Portfolio, accurate appraisal of the value of the net
assets of the Acquiring Portfolio or the Acquired Portfolio 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.
4. REPRESENTATIONS AND WARRANTIES
4.1. Except as has been disclosed to the Acquiring Portfolio in a written
instrument executed by an officer of IPI, IPI, on behalf of the Acquired
Portfolio, represents and warrants to IVPI as follows:
(a) The Acquired Portfolio is duly organized as a series of IPI,
which is a corporation duly organized, validly existing and in good standing
under the laws of the State of Maryland, with power under IPI's Articles of
Incorporation to own all of its properties and assets and to carry on its
business as it is now being conducted;
(b) IPI is a registered investment company classified as a
management company of the open-end type, and its registration with the
Commission as an investment company under the 1940 Act, and the registration of
shares of the Acquired Portfolio under the Securities Act of 1933, as amended
("1933 Act"), is in full force and effect;
(c) No consent, approval, authorization, or order of any court or
governmental authority is required for the consummation by the Acquired
Portfolio of the transactions contemplated herein, except such as have been
obtained under the 1933 Act, the Securities Exchange Act of 1934, as amended
(the "1934 Act") and the 1940 Act and such as may be required by state
securities laws;
(d) The current prospectuses and statement of additional
information of the Acquired Portfolio and each prospectus and statement of
additional information of the Acquired Portfolio used during the three years
previous to the date of this Agreement conforms or conformed at the time of its
use in all material respects to the applicable requirements of the 1933 Act and
the 1940 Act and the rules and regulations of the Commission thereunder and does
not, or did not at the time of its use, include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not materially misleading;
(e) On the Closing Date, the Acquired Portfolio will have good and
marketable title to the Assets and full right, power, and authority to sell,
assign, transfer and deliver such Assets hereunder free of any liens or other
encumbrances, and upon delivery and payment for such Assets, the Acquiring
Portfolio will acquire good and marketable title thereto, subject to no
restrictions on the full transfer thereof, including such restrictions as might
arise under the 1933 Act, other than as disclosed to the Acquiring Portfolio;
(f) The Acquired Portfolio is not engaged currently, and the
execution, delivery and performance of this Agreement will not result, in (i) a
material violation of IPI's Articles of Incorporation or By-Laws or of any
agreement, indenture, instrument, contract, lease or other undertaking to which
IPI, on behalf of the Acquired Portfolio, is a party or by which it is bound; or
(ii) the acceleration of any obligation, or the imposition of any penalty, under
any agreement, indenture, instrument, contract, lease, judgment or decree to
which IPI, on behalf of the Acquired Portfolio, is a party or by which it is
bound;
(g) All material contracts or other commitments of the Acquired
Portfolio (other than this Agreement and certain investment contracts including
options, futures and forward contracts) will terminate without liability to the
Acquired Portfolio prior to the Closing Date;
(h) Except as otherwise disclosed in writing to and accepted by
IVPI, on behalf of the Acquiring Portfolio, no litigation or administrative
proceeding or investigation of or before any court or governmental body is
presently pending or, to its knowledge, threatened against the Acquired
Portfolio or any of its properties or assets that, if adversely determined,
would materially and adversely affect its financial condition or the conduct of
its business. IPI, on behalf of the Acquired Portfolio, knows of no facts which
might form the basis for the institution of such proceedings and is not a party
to or subject to the provisions of any order, decree or judgment of any court or
governmental body which materially and adversely affects its business or its
ability to consummate the transactions herein contemplated;
(i) The Statement of Assets and Liabilities, Statements of
Operations and Changes in Net Assets, and Schedule of Investments of the
Acquired Portfolio at December 31, 2005 have been audited by KPMG LLP,
independent registered public accountants, and are in accordance with generally
accepted accounting principles ("GAAP") consistently applied, and such
statements (copies of which have been furnished to the Acquiring Portfolio)
present fairly, in all material respects, the financial condition of the
Acquired Portfolio as of such date in accordance with GAAP, and there are no
known contingent liabilities of the Acquired Portfolio required to be reflected
on a balance sheet (including the notes thereto) in accordance with GAAP as of
such date not disclosed therein;
(j) Since December 31, 2005, there has not been any material
adverse change in the Acquired Portfolio's financial condition, assets,
liabilities or business, other than changes occurring in the ordinary course of
business, or any incurrence by the Acquired Portfolio of indebtedness maturing
more than one year from the date such indebtedness was incurred, except as
otherwise disclosed to and accepted by the Acquiring Portfolio. For the purposes
of this subparagraph (j), a decline in net asset value per share of the Acquired
Portfolio due to declines in market values of securities in the Acquired
Portfolio's portfolio, the discharge of Acquired Portfolio liabilities, or the
redemption of Acquired Portfolio Shares by shareholders of the Acquired
Portfolio shall not constitute a material adverse change;
(k) On the Closing Date, all federal and other tax returns,
dividend reporting forms, and other tax-related reports of the Acquired
Portfolio required by law to have been filed by such date (including any
extensions) shall have been filed and are or will be correct in all material
respects, and all federal and other taxes shown as due or required to be shown
as due on said returns and reports shall have been paid or provision shall have
been made for the payment thereof, and to the best of the Acquired Portfolio's
knowledge, no such return is currently under audit and no assessment has been
asserted with respect to such returns;
(l) For each taxable year of its operation (including the taxable
year ending on the Closing Date), the Acquired Portfolio has met (and will meet)
the requirements of Subchapter M of the Code for qualification as a regulated
investment company, has been (and will be) eligible to and has computed (and
will compute) its federal income tax under Section 852 of the Code, and will
have distributed all of its investment company taxable income and net capital
gain (as defined in the Code) that has accrued through the Closing Date, and
before the Closing Date will have declared dividends sufficient to distribute
all of its investment company taxable income and net capital gain for the period
ending on the Closing Date;
(m) All issued and outstanding shares of the Acquired Portfolio
are, and on the Closing Date will be, duly and validly issued and outstanding,
fully paid and non-assessable, and have been offered and sold in every state and
the District of Columbia in compliance in all material respects with applicable
registration requirements of the 1933 Act and state securities laws. All of the
issued and outstanding shares of the Acquired Portfolio will, at the time of
Closing, be held by the persons and in the amounts set forth in the records of
the Transfer Agent, on behalf of the Acquired Portfolio, as provided in
paragraph 3.3. The Acquired Portfolio does not have outstanding any options,
warrants or other rights to subscribe for or purchase any of the shares of the
Acquired Portfolio, nor is there outstanding any security convertible into any
of the Acquired Portfolio shares;
(n) The execution, delivery and performance of this Agreement will
have been duly authorized prior to the Closing Date by all necessary action, if
any, on the part of the Directors of IPI, on behalf of the Acquired Portfolio,
and, subject to the approval of the shareholders of the Acquired Portfolio, this
Agreement will constitute a valid and binding obligation of the Acquired
Portfolio, enforceable in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization, moratorium and other laws relating to
or affecting creditors' rights and to general equity principles;
(o) The information to be furnished by the Acquired Portfolio for
use in registration statements, proxy materials and other documents filed or to
be filed with any federal, state or local regulatory authority (including the
National Association of Securities Dealers, Inc.), which may be necessary in
connection with the transactions contemplated hereby, shall be accurate and
complete in all material respects and shall comply in all material respects with
federal securities and other laws and regulations thereunder applicable thereto;
and
(p) The proxy statement of the Acquired Portfolio (the "Proxy
Statement") to be included in the Registration Statement referred to in
paragraph 5.6, insofar as it relates to the Acquired Portfolio, will, on the
effective date of the Registration Statement and on the Closing Date (i) not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which such statements were made, not materially
misleading provided, however, that the representations and warranties in this
subparagraph (p) shall not apply to statements in or omissions from the Proxy
Statement and the Registration Statement made in reliance upon and in conformity
with information that was furnished by the Acquiring Portfolio for use therein;
and (ii) comply in all material respects with the provisions of the 1933 Act,
the 1934 Act and the 1940 Act and the rules and regulations thereunder.
4.2. Except as has been disclosed to the Acquired Portfolio in a written
instrument executed by an officer of IVPI, IVPI, on behalf of the Acquiring
Portfolio, represents and warrants to IPI as follows:
(a) The Acquiring Portfolio is duly organized as a series of IVPI,
which is a corporation duly organized, validly existing and in good standing
under the laws of the State of Maryland, with power under IVPI's Articles of
Incorporation to own all of its properties and assets and to carry on its
business as it is now being conducted;
(b) IVPI is a registered investment company classified as a
management company of the open-end type, and its registration with the
Commission as an investment company under the 1940 Act and the registration of
the shares of the Acquiring Portfolio under the 1933 Act, is in full force and
effect;
(c) No consent, approval, authorization, or order of any court or
governmental authority is required for the consummation by the Acquiring
Portfolio of the transactions contemplated herein, except such as have been
obtained under the 1933 Act, the 1934 Act and the 1940 Act and such as may be
required by state securities laws;
(d) The current prospectus and statement of additional information
of the Acquiring Portfolio and each prospectus and statement of additional
information of the Acquiring Portfolio used during the three years previous to
the date of this Agreement conforms or conformed at the time of its use in all
material respects to the applicable requirements of the 1933 Act and the 1940
Act and the rules and regulations of the Commission thereunder and does not or
did not at the time of its use include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not materially misleading;
(e) On the Closing Date, the Acquiring Portfolio will have good and
marketable title to the Acquiring Portfolio's assets, free of any liens of other
encumbrances, except those liens or encumbrances as to which the Acquired
Portfolio has received notice and necessary documentation at or prior to the
Closing;
(f) The Acquiring Portfolio is not engaged currently, and the
execution, delivery and performance of this Agreement will not result, in (i) a
material violation of IVPI's Articles of Incorporation or By-Laws or of any
agreement, indenture, instrument, contract, lease or other undertaking to which
IVPI, on behalf of the Acquiring Portfolio, is a party or by which it is bound;
or (ii) the acceleration of any obligation, or the imposition of any penalty,
under any agreement, indenture, instrument, contract, lease, judgment or decree
to which the Company, on behalf of the Acquiring Portfolio, is a party or by
which it is bound;
(g) Except as otherwise disclosed in writing to and accepted by
IPI, on behalf of the Acquired Portfolio, no litigation or administrative
proceeding or investigation of or before any court or governmental body is
presently pending or, to its knowledge, threatened against the Company, on
behalf of the Acquiring Portfolio, or any of the Acquiring Portfolio's
properties or assets that, if adversely determined, would materially and
adversely affect the Acquiring Portfolio's financial condition or the conduct of
the Acquiring Portfolio's business. IVPI, on behalf of the Acquiring Portfolio,
knows of no facts which might form the basis for the institution of such
proceedings and is not a party to or subject to the provisions of any order,
decree or judgment of any court or governmental body which materially and
adversely affects its business or its ability to consummate the transactions
herein contemplated;
(h) The Statement of Assets and Liabilities, Statements of
Operations and Changes in Net Assets and Schedule of Investments of the
Acquiring Portfolio at December 31, 2005 have been audited by KPMG LLP,
independent registered public accountants, and are in accordance with GAAP
consistently applied, and such statements (copies of which have been furnished
to the Acquired Portfolio) present fairly, in all material respects, the
financial condition of the Acquiring Portfolio as of such date in accordance
with GAAP, and there are no known contingent liabilities of the Acquiring
Portfolio required to be reflected on a balance sheet (including the notes
thereto) in accordance with GAAP as of such date not disclosed therein;
(i) Since December 31, 2005, there has not been any material
adverse change in the Acquiring Portfolio's financial condition, assets,
liabilities or business, other than changes occurring in the ordinary course of
business, or any incurrence by the Acquiring Portfolio of indebtedness maturing
more than one year from the date such indebtedness was incurred, except as
otherwise disclosed to and accepted by the Acquired Portfolio. For purposes of
this subparagraph (i), a decline in net asset value per share of the Acquiring
Portfolio due to declines in market values of securities in the Acquiring
Portfolio's portfolio, the discharge of Acquiring Portfolio liabilities, or the
redemption of Acquiring Portfolio Shares by shareholders of the Acquiring
Portfolio, shall not constitute a material adverse change;
(j) On the Closing Date, all federal and other tax returns,
dividend reporting forms, and other tax-related reports of the Acquiring
Portfolio required by law to have been filed by such date (including any
extensions) shall have been filed and are or will be correct in all material
respects, and all federal and other taxes shown as due or required to be shown
as due on said returns and reports shall have been paid or provision shall have
been made for the payment thereof, and to the best of the Acquiring Portfolio's
knowledge no such return is currently under audit and no assessment has been
asserted with respect to such returns;
(k) For each taxable year of its operation (including the taxable
year that includes the Closing Date), the Acquiring Portfolio has met (and will
meet) the requirements of Subchapter M of the Code for qualification as a
regulated investment company, has been eligible to (and will be eligible to) and
has computed (and will compute) its federal income tax under Section 852 of the
Code;
(l) All issued and outstanding shares of the Acquiring Portfolio
are, and on the Closing Date will be, duly and validly issued and outstanding,
fully paid and non-assessable by IVPI and have been offered and sold in every
state and the District of Columbia in compliance in all material respects with
applicable registration requirements of the 1933 Act and state securities laws.
The Acquiring Portfolio does not have outstanding any options, warrants or other
rights to subscribe for or purchase any Acquiring Portfolio Shares, nor is there
outstanding any security convertible into any Acquiring Portfolio Shares;
(m) The execution, delivery and performance of this Agreement will
have been fully authorized prior to the Closing Date by all necessary action, if
any, on the part of the Directors of IVPI, on behalf of the Acquiring Portfolio,
and this Agreement will constitute a valid and binding obligation of the
Acquiring Portfolio, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights and to general equity
principles;
(n) I Class, S Class and ADV Class Acquiring Portfolio Shares to be
issued and delivered to the Acquired Portfolio, for the account of the Acquired
Portfolio Shareholders, pursuant to the terms of this Agreement, will on the
Closing Date have been duly authorized and, when so issued and delivered, will
be duly and validly issued Acquiring Portfolio Shares, and will be fully paid
and non-assessable;
(o) The information to be furnished by IVPI for use in the
registration statements, proxy materials and other documents that may be
necessary in connection with the transactions contemplated hereby shall be
accurate and complete in all material respects and shall comply in all material
respects with federal securities and other laws and regulations applicable
thereto; and
(p) That insofar as it relates to the Acquiring Portfolio, the
Registration Statement relating to the Acquiring Portfolio Shares issuable
hereunder, and the proxy materials of the Acquired Portfolio to be included in
the Registration Statement, and any amendment or supplement to the foregoing,
will, from the effective date of the Registration Statement through the date of
the meeting of shareholders of the Acquired Portfolio contemplated therein (i)
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which such statements were made, not
misleading, provided, however, that the representations and warranties in this
subparagraph (p) shall not apply to statements in or omissions from the
Registration Statement made in reliance upon and in conformity with information
that was furnished by the Acquired Portfolio for use therein; and (ii) comply in
all material respects with the provisions of the 1933 Act, the 1934 Act and the
1940 Act and the rules and regulations thereunder.
5. COVENANTS OF THE ACQUIRING PORTFOLIO AND THE ACQUIRED PORTFOLIO
5.1. The Acquiring Portfolio and the Acquired Portfolio each will operate
its business in the ordinary course between the date hereof and the Closing
Date, it being understood that such ordinary course of business will include the
declaration and payment of customary dividends and distributions, and any other
distribution that may be advisable.
5.2. The Acquired Portfolio will call a meeting of the shareholders of
the Acquired Portfolio to consider and act upon this Agreement and to take all
other action necessary to obtain approval of the transactions contemplated
herein.
5.3. The Acquired Portfolio covenants that the I Class, S Class and ADV
Class Acquiring Portfolio Shares to be issued hereunder are not being acquired
for the purpose of making any distribution thereof, other than in accordance
with the terms of this Agreement.
5.4. The Acquired Portfolio will assist the Acquiring Portfolio in
obtaining such information as the Acquiring Portfolio reasonably requests
concerning the beneficial ownership of the Acquired Portfolio shares.
5.5. Subject to the provisions of this Agreement, the Acquiring Portfolio
and the Acquired Portfolio will each take, or cause to be taken, all action, and
do or cause to be done, all things reasonably necessary, proper or advisable to
consummate and make effective the transactions contemplated by this Agreement.
5.6. The Acquired Portfolio will provide the Acquiring Portfolio with
information reasonably necessary for the preparation of a prospectus (the
"Prospectus"), which will include the Proxy Statement referred to in paragraph
4.1(p), all to be included in a Registration Statement on Form N-14 of the
Acquiring Portfolio (the "Registration Statement"), in compliance with the 1933
Act, the 1934 Act and the 1940 Act, in connection with the meeting of the
shareholders of the Acquired Portfolio to consider approval of this Agreement
and the transactions contemplated herein.
5.7. As soon as is reasonably practicable after the Closing, the Acquired
Portfolio will make a liquidating distribution to its shareholders consisting of
the I Class, S Class and ADV Class Acquiring Portfolio Shares received at the
Closing.
5.8. The Acquiring Portfolio and the Acquired Portfolio shall each 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.
5.9. IPI, on behalf of the Acquired Portfolio, covenants that IPI will,
from time to time, as and when reasonably requested by the Acquiring Portfolio,
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
IVPI, on behalf of the Acquiring Portfolio, may reasonably deem necessary or
desirable in order to vest in and confirm (a) IPI's, on behalf of the Acquired
Portfolio's, title to and possession of the Acquiring Portfolio's Shares to be
delivered hereunder; and (b) IVPI's, on behalf of the Acquiring Portfolio's,
title to and possession of all the assets and otherwise to carry out the intent
and purpose of this Agreement.
5.10. The Acquiring Portfolio 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.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED PORTFOLIO
The obligations of IPI, on behalf of the Acquired Portfolio, to consummate
the transactions provided for herein shall be subject, at IPI's election, to the
performance by IVPI, on behalf of the Acquiring Portfolio, 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 IVPI, on behalf of the
Acquiring Portfolio, contained in this Agreement shall be true and correct in
all material respects as of the date hereof and, except as they may be affected
by the transactions contemplated by this Agreement, as of the Closing Date, with
the same force and effect as if made on and as of the Closing Date;
6.2. IVPI shall have delivered to IPI a certificate executed in its name
by its President or Vice President and its Treasurer or Assistant Treasurer, in
a form reasonably satisfactory to IPI and dated as of the Closing Date, to the
effect that the representations and warranties of IVPI, on behalf of the
Acquiring Portfolio, made in this Agreement are true and correct at 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 IPI shall
reasonably request;
6.3. IVPI, on behalf of the Acquiring Portfolio, 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 IVPI, on behalf of the Acquiring
Portfolio, on or before the Closing Date; and
6.4. The Acquired Portfolio and the Acquiring Portfolio shall have agreed
on the number of full and fractional I Class, S Class and ADV Class Acquiring
Portfolio Shares of to be issued in connection with the Reorganization after
such number has been calculated in accordance with paragraph 1.1.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING PORTFOLIO
The obligations of IVPI, on behalf of the Acquiring Portfolio, to complete
the transactions provided for herein shall be subject, at IVPI's election, to
the performance by IPI, on behalf of the Acquired Portfolio, of all of the
obligations to be performed by it hereunder on or before the Closing Date and,
in addition thereto, the following conditions:
7.1. All representations and warranties of IPI, on behalf of the Acquired
Portfolio, contained in this Agreement shall be true and correct in all material
respects as of the date hereof and, except as they may be affected by the
transactions contemplated by this Agreement, as of the Closing Date, with the
same force and effect as if made on and as of the Closing Date;
7.2. IPI shall have delivered to the Acquiring Portfolio a statement of
the Acquired Portfolio's assets and liabilities, as of the Closing Date,
certified by the Treasurer of IPI;
7.3. IPI shall have delivered to the Acquiring Portfolio on the Closing
Date a certificate executed in its name by its President or Vice President and
its Treasurer or Assistant Treasurer, in form and substance satisfactory to IVPI
and dated as of the Closing Date, to the effect that the representations and
warranties of IPI, on behalf of the Acquired Portfolio, made in this Agreement
are true and correct at 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 IVPI shall reasonably request;
7.4. IPI, on behalf of the Acquired Portfolio, 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 IPI, on behalf of the Acquired
Portfolio, on or before the Closing Date;
7.5. The Acquired Portfolio and the Acquiring Portfolio shall have agreed
on the number of full and fractional I Class, S Class and ADV Class Acquiring
Portfolio Shares to be issued in connection with the Reorganization after such
number has been calculated in accordance with paragraph 1.1; and
7.6. The Acquired Portfolio shall have declared and paid a distribution
or distributions prior to the Closing that, together with all previous
distributions, shall have the effect of distributing to its shareholders (i) all
of its investment company taxable income and all of its net realized capital
gains, if any, for the period from the close of its last fiscal year to 4:00
p.m. Eastern time on the Closing; and (ii) any undistributed investment company
taxable income and net realized capital gains from any period to the extent not
otherwise already distributed.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING PORTFOLIO AND
THE ACQUIRED PORTFOLIO
If any of the conditions set forth below have not been satisfied on or
before the Closing Date with respect to IPI, on behalf of the Acquired
Portfolio, or IVPI, on behalf of the Acquiring Portfolio, the other party to
this Agreement shall, at its option, not be required to consummate the
transactions contemplated by this Agreement:
8.1. The Agreement and the transactions contemplated herein shall have
been approved by the requisite vote of the holders of the outstanding shares of
the Acquired Portfolio in accordance with the provisions of the IPI's Articles
of Incorporation, By-Laws, applicable Maryland law and the 1940 Act, and
certified copies of the resolutions evidencing such approval shall have been
delivered to the Acquiring Portfolio. Notwithstanding anything herein to the
contrary, neither IVPI nor IPI may waive the conditions set forth in this
paragraph 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 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
IVPI or IPI 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 Portfolio
or the Acquired Portfolio, 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 1933 Act; and
8.5. The parties shall have received the opinion of Dechert LLP addressed
to IPI and IVPI substantially to the effect that, based upon certain facts,
assumptions, and representations, the transaction contemplated by this Agreement
shall constitute a tax-free reorganization for federal income tax purposes. The
delivery of such opinion is conditioned upon receipt by Dechert LLP of
representations it shall request of IVPI and IPI. Notwithstanding anything
herein to the contrary, neither IVPI nor IPI may waive the condition set forth
in this paragraph 8.5.
9. BROKERAGE FEES AND EXPENSES
9.1. IPI, on behalf of the Acquired Portfolio, and IVPI, on behalf of the
Acquiring Portfolio, represent and warrant to each other that there are no
brokers or finders entitled to receive any payments in connection with the
transactions provided for herein.
9.2 The expenses relating to the proposed Reorganization will be shared
so that (1) half of such costs are borne by the investment adviser to the
Acquiring Portfolio, or its affiliate, and (2) half are borne by the Acquired
Portfolio. The costs of the Reorganization shall include, but not be limited to,
costs associated with obtaining any necessary order of exemption from the 1940
Act, preparation of the Registration Statement, printing and distributing the
Acquiring Portfolio's prospectus and the Acquired Portfolio's proxy materials,
legal fees, accounting fees, securities registration fees, and expenses of
holding shareholders' meetings. Notwithstanding any of the foregoing, expenses
will in any event be paid by the party directly incurring such expenses if and
to the extent that the payment by another person of such expenses would result
in the disqualification of such party as a "regulated investment company" within
the meaning of Section 851 of the Code.
10. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
10.1. IVPI and IPI agree that neither party has made any representation,
warranty or covenant not set forth herein and that this Agreement constitutes
the entire agreement between the parties.
10.2. The representations, warranties and covenants contained in this
Agreement or in any document delivered pursuant hereto or in connection herewith
shall survive the consummation of the transactions contemplated hereunder. The
covenants to be performed after the Closing shall survive the Closing.
11. TERMINATION
This Agreement may be terminated and the transactions contemplated hereby
may be abandoned by either party by (i) mutual agreement of the parties, or (ii)
by either party if the Closing shall not have occurred on or before February 1,
2007, 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 Directors or officers,
except for any such material breach or intentional misrepresentation, as to each
of which all remedies at law or in equity of the party adversely affected shall
survive.
12. AMENDMENTS
This Agreement may be amended, modified or supplemented in such manner as
may be deemed necessary or advisable by the authorized officers of IPI and IVPI;
provided, however, that following the meeting of the shareholders of the
Acquired Portfolio called by IPI pursuant to paragraph 5.2 of this Agreement, no
such amendment may have the effect of changing the provisions for determining
the number of the I Class, S Class and ADV Class Acquiring Portfolio Shares to
be issued to the Acquired Portfolio Shareholders under this Agreement to the
detriment of such shareholders without their further approval.
13. NOTICES
Any notice, report, statement or demand required or permitted by any
provisions of this Agreement shall be in writing and shall be given by
facsimile, personal service or prepaid or certified mail addressed to IVPI or
IPI, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attn: ▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇., in each case with a copy to Dechert LLP, ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
14. HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT; LIMITATION OF LIABILITY
14.1. The Article and paragraph headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
14.2. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original.
14.3. This Agreement shall be governed by and construed in accordance with
the laws of the State of Maryland without regard to its principles of conflicts
of laws.
14.4. This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns, but no assignment or
transfer hereof or of any rights or obligations hereunder shall be made by any
party without the written consent of the other party. Nothing herein expressed
or implied is intended or shall be construed to confer upon or give any person,
firm or corporation, other than the parties hereto and their respective
successors and assigns, any rights or remedies under or by reason of this
Agreement.
14.5. It is expressly agreed that the obligations of the parties hereunder
shall not be binding upon any of the Directors, shareholders, nominees,
officers, agents, or employees of IPI personally, but shall bind only the
property of the Acquired Portfolio, as provided in the Articles of Incorporation
of IPI. The execution and delivery by such officers shall not be deemed to have
been made by any of them individually or to impose any liability on any of them
personally, but shall bind only the property of such party.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed by its President or Vice President and attested by its Secretary or
Assistant Secretary.
Attest: ING VARIABLE PORTFOLIOS, INC.
on behalf of its
ING VP GROWTH PORTFOLIO series
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Secretary By:
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Title:
Attest: ING PARTNERS, INC. on behalf of its
ING ▇▇▇▇▇▇▇ ▇▇▇▇▇(R) CAPITAL GROWTH
PORTFOLIO series
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Secretary By:
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Title: