Exhibit 4
THIS AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") is made as of this _____
day of _______, 2007, by and between Hartford Series Fund, Inc., a Maryland
corporation ("Hartford Series Fund"), with its principal place of business at
________________, on behalf of The Hartford International Opportunities HLS Fund
("Acquiring Fund"), a separate series of Hartford Series Fund, and Hartford HLS
Series Fund II, Inc., a Maryland corporation ("Hartford HLS Series Fund II,"
together with Hartford Series Fund, the "Companies"), with its principal place
of business at _______________, on behalf of The Hartford International Stock
HLS Fund ("Acquired Fund"), a separate series of Hartford HLS Series Fund II.
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 ("Code"). The reorganization and
liquidation will consist of (1) the sale, assignment, conveyance, transfer and
delivery of all of the property and assets of the Acquired Fund to the Acquiring
Fund in exchange solely for shares of common stock of the Acquiring Fund
("Acquiring Fund Shares") corresponding to the class of outstanding shares of
common stock of the Acquired Fund ("Acquired Fund Shares"), as described herein,
(2) the assumption by the Acquiring Fund of all liabilities of the Acquired
Fund, and (3) the distribution of the Acquiring Fund Shares to the shareholders
of the Acquired Fund in complete liquidation of the Acquired Fund, as provided
herein ("Reorganization"), all upon the terms and conditions hereinafter set
forth in this Agreement.
WHEREAS, the Acquired Fund and the Acquiring Fund series of Hartford HLS Series
Fund II and Hartford Series Fund, respectively, each a registered investment
company classified as a management company of the open-end type, and the
Acquired Fund owns securities that generally are assets of the character in
which the Acquiring Fund is permitted to invest;
WHEREAS, the Directors of Hartford Series Fund have determined, with respect to
the Acquiring Fund, that the sale, assignment, conveyance, transfer and delivery
of all of the property and assets of the Acquired Fund for Acquiring Fund Shares
and the assumption of all liabilities of the Acquired Fund by the Acquiring Fund
is in the best interests of the Acquiring Fund and that the interests of the
existing shareholders of the Acquiring Fund would not be diluted as a result of
this transaction; and
WHEREAS, the Directors of Hartford HLS Series Fund II have determined, with
respect to the Acquired Fund, that the sale, assignment, conveyance, transfer
and delivery of all of the property and assets of the Acquired Fund for
Acquiring Fund Shares and the assumption of all liabilities of the Acquired Fund
by the Acquiring Fund is in the best interests of the Acquired Fund and that the
interests of the existing shareholders of the Acquired Fund 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 FUND TO THE ACQUIRING FUND IN EXCHANGE
FOR ACQUIRING FUND SHARES, THE ASSUMPTION OF ALL ACQUIRED FUND LIABILITIES
AND THE LIQUIDATION OF THE ACQUIRED FUND
1.1. Subject to the requisite approval of the Acquired Fund
shareholders and the other terms and conditions herein set forth and on the
basis of the representations and warranties contained herein, the Acquired Fund
agrees to sell, assign, convey, transfer and deliver all of the property and
assets of the Acquired Fund, as set forth in paragraph 1.2 herein, to the
Acquiring Fund, and the Acquiring Fund agrees in exchange therefor: (i) to
deliver to the Acquired Fund the number of full and fractional Acquiring Fund
Shares determined by dividing the value of the Acquired Fund's net assets with
respect to the corresponding class of Acquired Fund Shares, computed in the
manner and as of the time and date set forth in paragraph 2.1 herein, by the net
asset value of one Acquiring Fund Share of the corresponding class, computed in
the manner and as of the time and date set forth in paragraph 2.2 herein; and
(ii) to assume all liabilities of the Acquired Fund, as set forth in
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paragraph 1.3 herein. Such transactions shall take place on the date of the
closing provided for in paragraph 3.1 herein ("Closing Date").
1.2. The property and assets of Hartford HLS Series Fund II
attributable to the Acquired Fund to be acquired by the Acquiring Fund shall
consist of all property and assets, including, without limitation, all rights,
cash, securities, commodities and futures interests and dividends or interests
receivable that are owned by the Acquired Fund and any deferred or prepaid
expenses shown as an asset on the books of the Acquired Fund on the Valuation
Date as defined in paragraph 2.1 (collectively, "Assets"). The Acquired Fund
will sell, assign, convey, transfer and deliver to the Acquiring Fund any
rights, stock dividends, or other securities received by the Acquired Fund after
the Closing Date as stock dividends or other distributions on or with respect to
the property and assets transferred, which rights, stock dividends, and other
securities shall be deemed included in the property and assets transferred to
the Acquiring Fund at the Closing Date and shall not be separately valued, in
which case any such distribution that remains unpaid as of the Closing Date
shall be included in the determination of the value of the assets of the
Acquired Fund acquired by the Acquiring Fund.
1.3. The Acquired Fund will make reasonable efforts to discharge all
of its known liabilities and obligations prior to the Valuation Date. The
Acquiring Fund shall assume all of the liabilities of the Acquired Fund, whether
accrued or contingent, known or unknown, existing at the Valuation Date
(collectively, "Liabilities"). On or as soon as practicable prior to the Closing
Date, the Acquired Fund will declare and pay to its shareholders of record one
or more dividends and/or other distributions so that it will have distributed
substantially all (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 following the actions contemplated by paragraph 1.1
herein, Hartford HLS Series Fund II shall take such actions necessary to
complete the liquidation of the Acquired Fund. To complete the liquidation,
Hartford HLS Series Fund II, on behalf of the Acquired Fund, shall (a)
distribute to the Acquired Fund's shareholders of record with respect to each
class of its shares as of the Closing as defined in paragraph 3.1 herein
("Acquired Fund Shareholders"), on a pro rata basis within the class, the
Acquiring Fund Shares of the corresponding class received by the Acquired Fund
pursuant to paragraph 1.1 herein, and (b) completely liquidate. Such
distribution and liquidation will be accomplished, with respect to each class of
Acquired Fund shares, by the transfer of the Acquiring Fund Shares then credited
to the account of the Acquired Fund on the books of the Acquiring Fund to open
accounts on the share records of the Acquiring Fund in the names of the Acquired
Fund Shareholders. The aggregate net asset value of Acquiring Fund Shares to be
so credited to the Acquired Fund Shareholders shall, with respect to the class,
be equal to the aggregate net asset value of the Acquired Fund Shares of the
corresponding class owned by Acquired Fund Shareholders on the Closing Date. All
issued and outstanding Acquired Fund Shares will simultaneously be canceled on
the books of the Acquired Fund, although shares certificates representing
interests in Acquired Fund Shares will thereafter represent interests in the
corresponding class of Acquiring Fund Shares after the Closing Date, as
determined in accordance with paragraph 2.3. The Acquiring Fund shall not issue
certificates representing the Acquiring Fund Shares in connection with the
Reorganization.
1.5. Ownership of Acquiring Fund Shares will be shown on the books of
the Acquiring Fund's Transfer Agent, as defined in paragraph 3.3 herein.
1.6. Any reporting responsibility of the Acquired Fund, including, but
not limited to, the responsibility for filing regulatory reports, tax returns,
or other documents with the Securities and Exchange Commission ("Commission"),
any state securities commission, and any Federal, state or local tax authorities
or any other relevant regulatory authority, is and shall remain the
responsibility of the Acquired Fund.
2. VALUATION
2.1. The value of the Assets shall be the value of such Assets as of
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"), computed using the valuation procedures set forth
in the then-current prospectus and statement of additional information with
respect to the Acquired Fund and valuation procedures established by Hartford
HLS Series Fund II's Board of Directors.
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2.2. The net asset value of each Acquiring Fund Share shall be the net
asset value per share computed with respect to the corresponding class as of the
Valuation Date, using the valuation procedures set forth in the Acquiring Fund's
then-current prospectus and statement of additional information, and valuation
procedures established by the Hartford Series Fund's Board of Directors.
2.3. The number of the Acquiring Fund Shares to be issued (including
fractional shares, if any) in exchange for the Acquired Fund's Assets shall be
determined by dividing the value of the net assets with respect to the Acquired
Fund Shares, determined using the same valuation procedures referred to in
paragraph 2.1 herein, by the net asset value of the corresponding class of
Acquiring Fund Shares, determined in accordance with paragraph 2.2 herein.
2.4. All computations of value shall be made by [Hartford Life
Insurance Company], in its capacity as [Fund Accountant] for the Company, and
shall be subject to confirmation by the Company's [Treasurer].
3. CLOSING AND CLOSING DATE
3.1. The Closing Date shall be [ ], or such other date as the parties
may agree. All acts taking place at the closing of the transactions provided for
in this Agreement ("Closing") shall be deemed to take place simultaneously as of
the close of business on the Closing Date unless otherwise agreed to by the
parties. The close of business on the Closing Date shall be as of 4:00 p.m.,
Eastern Time. The Closing shall be held at the offices of the Company.
3.2. Hartford HLS Series Fund II shall direct [State Street Bank and
Trust Company], as custodian for the Acquired Fund ("Custodian"), to deliver to
the Companies at the Closing a certificate of an authorized officer of the
Custodian stating that (i) the Assets of the Acquired Fund have been delivered
in proper form to the Acquiring Fund 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 Fund's
portfolio securities represented by a certificate or other written instrument
shall be presented by the Custodian to those persons at the Custodian who have
primary responsibility for the safekeeping of the assets of the Acquiring Fund,
as the Custodian also serves as the custodian for the Acquiring Fund. Such
presentation shall be made for examination no later than five business days
preceding the Closing Date, and such certificates and other written instruments
shall be transferred and delivered by the Acquired Fund as of the Closing Date
for the account of the Acquiring Fund duly endorsed in proper form for transfer
in such condition as to constitute good delivery thereof. The Custodian shall
deliver to those persons at the Custodian who have primary responsibility for
the safekeeping of the assets of the Acquiring Fund as of the Closing Date by
book entry, in accordance with the customary practices of the Custodian and of
each securities depository, as defined in Rule 17f-4 under the Investment
Company Act of 1940, as amended ("1940 Act"), in which the Acquired Fund's
Assets are deposited, the Acquired Fund's Assets deposited with such
depositories. The cash to be transferred by the Acquired Fund shall be delivered
by wire transfer of Federal funds on the Closing Date.
3.3. The Companies shall direct Hartford Investor Services Company,
LLC, in its capacity as transfer agent for the Companies ("Transfer Agent"), to
deliver to the Companies at the Closing a certificate of an authorized officer
of the Transfer Agent stating that its records contain the names and addresses
of the Acquired Fund Shareholders and the number and percentage ownership of
outstanding shares owned by each such shareholder immediately prior to the
Closing. The Secretary of the Companies shall confirm that (a) the appropriate
number of Acquiring Fund Shares have been credited to the Acquired Fund's
account on the books of the Acquiring Fund pursuant to paragraph 1.1 herein
prior to the actions contemplated by paragraph 1.4 herein and (b) the
appropriate number of Acquiring Fund Shares have been credited to the accounts
of the Acquired Fund Shareholders on the books of the Acquiring Fund pursuant to
paragraph 1.4 herein. At the Closing the Companies shall execute such bills of
sale, checks, assignments, share certificates, if any, receipts or other
documents as necessary to effect the Reorganization.
3.4. In the event that on the Valuation Date (a) the New York Stock
Exchange or another primary trading market for portfolio securities of the
Acquiring Fund or the Acquired Fund (each, an "Exchange") shall be closed to
trading or trading thereupon shall be restricted, or (b) trading or the
reporting of trading on such Exchange
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or elsewhere shall be disrupted so that, in the judgment of the Board of
Directors of Hartford Series Fund or Hartford HLS Series Fund II, accurate
appraisal of the value of the net assets of the Acquiring Fund or the Acquired
Fund, respectively, 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 fully disclosed to the Acquiring Fund prior to
the date of this Agreement in a written instrument executed by an officer of
Hartford HLS Series Fund II, Hartford HLS Series Fund II, on behalf of the
Acquired Fund, represents and warrants to the Acquiring Fund as follows:
(a) The Acquired Fund is duly organized as a series of
Hartford HLS Series Fund II, which is a corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland, with
power under Hartford HLS Series Fund II's Articles of Incorporation, as amended
from time to time ("Charter"), to own all of its Assets and to carry on its
business as it is now being conducted;
(b) Hartford HLS Series Fund II 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 Class IA Acquired Fund Shares 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 Fund
of the transactions contemplated herein, except such as may be required under
the 1933 Act, the Securities Exchange Act of 1934, as amended ("1934 Act"), the
1940 Act and state securities laws;
(d) The current prospectus and statement of additional
information of the Acquired Fund and each prospectus and statement of additional
information of the Acquired Fund used at all times prior 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 Valuation Date, Hartford HLS Series Fund II, on
behalf of the Acquired Fund, will have good and marketable title to the Assets
of the Acquired Fund 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, Hartford Series
Fund, on behalf of 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;
(f) The Acquired Fund is not engaged currently, and the
execution, delivery and performance of this Agreement will not result, in (i) a
material violation of the Hartford HLS Series Fund II's Charter or By-Laws or of
any agreement, indenture, instrument, contract, lease or other undertaking to
which Hartford HLS Series Fund II, on behalf of the Acquired Fund, is a party or
by which it is bound, or (ii) the acceleration of any material obligation, or
the imposition of any material penalty, under any agreement, indenture,
instrument, contract, lease, judgment or decree to which Hartford HLS Series
Fund II, on behalf of the Acquired Fund, is a party or by which it is bound;
(g) All material contracts or other commitments of the
Acquired Fund (other than this Agreement and certain investment contracts
including options, futures, and forward contracts) will terminate without
liability to the Acquired Fund on or prior to the Closing Date;
(h) No litigation or administrative proceeding or
investigation of or before any court or governmental body is presently pending
or, to Hartford HLS Series Fund II's knowledge, threatened against Hartford HLS
Series Fund II, with respect to the Acquired Fund 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. Hartford HLS Series Fund II,
on behalf of the Acquired Fund, 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
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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 Fund at December 31, 2006 have been audited by Ernst & Young LLP,
public accounting firm, who issued an unqualified opinion thereon;
(j) Since December 31, 2006, there has not been any material
adverse change in the Acquired Fund's financial condition, assets, liabilities
or business, other than changes occurring in the ordinary course of business, or
any incurrence by the Acquired Fund of indebtedness other than in the ordinary
course in accordance with the Acquired Fund's investment restrictions. For the
purposes of this subparagraph (j), a decline in net asset value per share of
Acquired Fund Shares due to declines in market values of securities held by the
Acquired Fund, the discharge of Acquired Fund liabilities, or the redemption of
Acquired Fund Shares by shareholders of the Acquired Fund 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 Fund
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 knowledge of Hartford HLS Series Fund II,
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 Fund has met (or will
meet) the requirements of Subchapter M of the Code for qualification as a
regulated investment company, has been (or will be) eligible to and has computed
(or will compute) its Federal income tax under Section 852 of the Code, and will
have distributed all of its investment company taxable income (computed without
regard to any deduction for dividends paid) 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 (computed without regard to any deduction for dividends
paid) and net capital gain (after reduction for any available capital loss
carryover) for the period ending on the Closing Date;
(m) All issued and outstanding Acquired Fund Shares are, and
on the Closing Date will be, duly and validly issued and outstanding, fully paid
and non-assessable by Hartford HLS Series Fund II and have been offered and sold
in every state, territory and the District of Columbia in compliance in all
material respects with applicable registration requirements of the 1933 Act and
other securities laws. All of the issued and outstanding Acquired Fund Shares
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 Fund, as
provided in paragraph 3.3 herein. The Acquired Fund does not have outstanding
any options, warrants or other rights to subscribe for or purchase any of the
Acquired Fund Shares, nor is there outstanding any security convertible into any
of the Acquired Fund Shares;
(n) The execution, delivery and performance of this Agreement
and the transactions contemplated herein have been duly authorized by all
necessary action, if any, on the part of the Directors of Hartford HLS Series
Fund II, on behalf of the Acquired Fund, and, subject to the approval of the
shareholders of the Acquired Fund, this Agreement constitutes a valid and
binding obligation of Hartford HLS Series Fund II, on behalf of the Acquired
Fund, 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;
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(o) The information to be furnished by the Acquired Fund 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 combined proxy statement and prospectus ("Proxy
Statement") to be included in the Registration Statement referred to in
paragraph 5.5 herein (and any amendment and supplement thereto), insofar as it
relates to the Acquired Fund, 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 of 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 Fund 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 fully disclosed to the Acquired Fund prior to
the date of this Agreement in a written instrument executed by an officer of
Hartford Series Fund, Hartford Series Fund, on behalf of the Acquiring Fund,
represents and warrants to the Acquired Fund as follows:
(a) The Acquiring Fund is duly organized as a series of
Hartford Series Fund, which is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Maryland, with power under
Hartford Series Fund's Articles of Incorporation, as amended from time to time
("Charter") to own all of its properties and assets and to carry on its business
as it is now being conducted;
(b) The Hartford Series Fund 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 Class IA Acquiring Fund Shares 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 Fund
of the transactions contemplated herein, except such as may be required under
the 1933 Act, the 1934 Act, the 1940 Act and state securities laws;
(d) The current prospectus and statement of additional
information of the Acquiring Fund and each prospectus and statement of
additional information of the Acquiring Fund used at all times prior 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) The Acquiring Fund is not engaged currently, and the
execution, delivery and performance of this Agreement will not result, in (i) a
material violation of Hartford Series Fund's Charter or By-Laws or of any
agreement, indenture, instrument, contract, lease or other undertaking to which
Hartford Series Fund, on behalf of the Acquiring Fund, is a party or by which it
is bound, or (ii) the acceleration of any material obligation, or the imposition
of any material penalty, under any agreement, indenture, instrument, contract,
lease, judgment or decree to which Hartford Series Fund, on behalf of the
Acquiring Fund, is a party or by which it is bound;
(f) No litigation or administrative proceeding or
investigation of or before any court or governmental body is presently pending
or, to its knowledge, threatened against Hartford Series Fund, with respect to
the Acquiring Fund or any of the Acquiring Fund's properties or assets, that, if
adversely determined, would materially and adversely affect the Acquiring Fund's
financial condition or the conduct of its business. Hartford Series Fund, on
behalf of the Acquiring Fund, 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
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governmental body which materially and adversely affects the Acquiring Fund's
business or its ability to consummate the transactions herein contemplated;
(g) The Statement of Assets and Liabilities, Statements of
Operations and Changes in Net Assets and Schedule of Investments of the
Acquiring Fund at December 31, 2006 have been audited by Ernst & Young LLP,
public accounting firm, who issued an unqualified opinion thereon;
(h) Since December 31, 2006, 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 other than in the ordinary
course in accordance with the Acquiring Fund's investment restrictions. For
purposes of this subparagraph (h), a decline in net asset value per share of the
Acquiring Fund Shares due to declines in market values of securities held by the
Acquiring Fund, the discharge of Acquiring Fund liabilities, or the redemption
of Acquiring Fund Shares by shareholders of the Acquiring Fund, shall not
constitute a material adverse change;
(i) On the Closing Date, all Federal and other tax returns,
dividend reporting forms, and other tax-related reports of the Acquiring Fund
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 knowledge of Hartford Series Fund no such
return is currently under audit and no assessment has been asserted with respect
to such returns;
(j) For each taxable year of its operation (including the
taxable year that includes the Closing Date), the Acquiring Fund has met (or
will meet) the requirements of Subchapter M of the Code for qualification as a
regulated investment company, has been eligible to (or will be eligible to) and
has computed (or will compute) its Federal income tax under Section 852 of the
Code;
(k) All issued and outstanding Acquiring Fund Shares are, and
on the Closing Date will be, duly and validly issued and outstanding, fully paid
and non-assessable by Hartford Series Fund and have been offered and sold in
every state, territory and the District of Columbia in compliance in all
material respects with applicable registration requirements of the 1933 Act and
other securities laws. The Acquiring Fund does not have outstanding any options,
warrants or other rights to subscribe for or purchase any Acquiring Fund Shares,
nor is there outstanding any security convertible into any Acquiring Fund
Shares;
(l) The execution, delivery and performance of this Agreement
and the transactions contemplated herein, have been duly authorized by all
necessary action, if any, on the part of the Directors of Hartford Series Fund,
on behalf of the Acquiring Fund, and this Agreement constitutes a valid and
binding obligation of Hartford Series Fund, on behalf of the Acquiring Fund,
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;
(m) The Class IA Acquiring Fund Shares to be issued and
delivered to the Acquired Fund, for the account of the Acquired Fund
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 Fund Shares, and will be fully paid and non-assessable
by the Acquiring Fund;
(n) The information to be furnished by the Acquiring Fund 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
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(o) The Proxy Statement to be included in the Registration
Statement REFERRED TO IN PARAGRAPH 5.5 HEREIN (and any amendment or supplement
thereto), insofar as it relates to the Acquiring Fund and the Acquiring Fund
Shares, will, from the effective date of the Registration Statement through the
date of the meeting of shareholders of the Acquired Fund contemplated therein
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 of this subparagraph (o) 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 Acquired Fund 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 FUND AND THE ACQUIRED FUND
5.1. The Acquiring Fund and the Acquired Fund 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. Hartford HLS Series Fund II will call a meeting of the
shareholders of the Acquired Fund to consider and act upon this Agreement and to
take all other action necessary to obtain approval of the transactions
contemplated herein.
5.3. The Acquired Fund covenants that the Class IA 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.
5.4. Subject to the provisions of this Agreement, the Acquiring Fund
and the Acquired Fund 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.
5.5. Hartford HLS Series Fund II, on behalf of the Acquired Fund, will
prepare and file a Proxy Statement (referred to in paragraph 4.1(o) herein) to
be included in a Registration Statement on Form N-14 ("Registration Statement"),
in compliance with the 1933 Act, the 1934 Act and the 1940 Act. The Acquired
Fund will provide to the Acquiring Fund such information regarding the Acquired
Fund as may be reasonably necessary for the preparation of the Registration
Statement.
5.6. The Acquiring Fund and the Acquired Fund 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.
5.7. Hartford HLS Series Fund II, on behalf of the Acquired Fund,
shall 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 may be necessary or desirable in order to (1) vest in and
confirm (a) the title and possession of Hartford HLS Series Fund II, on behalf
of the Acquired Fund, of the Acquiring Fund Shares to be delivered hereunder and
(b) the title and possession of Hartford Series Fund, on behalf of the Acquiring
Fund, of all the Assets and (2) otherwise to carry out the intent and purpose of
this Agreement.
5.8. The Acquiring Fund 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.
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6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED FUND
The obligations of Hartford HLS Series Fund II, on behalf of the
Acquired Fund, to consummate the transactions provided for herein shall be
subject, at Hartford HLS Series Fund II's election, to the performance by
Hartford Series Fund, on behalf of the 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 Hartford Series Fund, on
behalf of the 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;
6.2. Hartford Series Fund, on behalf of the Acquiring Fund, shall have
delivered to the Acquired Fund a certificate executed by the Hartford Series
Fund's President or Vice President and its Treasurer or Assistant Treasurer, and
dated as of the Closing Date, to the effect that the representations and
warranties of Hartford Series Fund, on behalf of the Acquiring Fund, 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;
6.3. Hartford Series Fund, on behalf of the 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 Hartford Series Fund, on
behalf of the Acquiring Fund, on or before the Closing Date; and
6.4. The number of full and fractional Acquiring Fund Shares to be
issued in connection with the Reorganization shall have been calculated in
accordance with paragraph 1.1 herein.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND
The obligations of Hartford Series Fund, on behalf of the Acquiring
Fund, to complete the transactions provided for herein shall be subject, at
Hartford Series Fund's election, to the performance by Hartford HLS Series Fund
II, on behalf of the Acquired Fund, 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 Hartford HLS Series Fund
II, on behalf of the Acquired 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;
7.2. Hartford HLS Series Fund II shall have delivered to the Acquiring
Fund a statement of the Acquired Fund's Assets and Liabilities, as of the
Closing Date, certified by the Treasurer of Hartford HLS Series Fund II;
7.3. Hartford HLS Series Fund II, on behalf of the Acquired Fund,
shall have delivered to the Acquiring Fund a certificate executed in the name of
the Acquired Fund by its President or Vice President and its Treasurer or
Assistant Treasurer and dated as of the Closing Date to the effect that the
representations and warranties of Hartford HLS Series Fund II, on behalf of the
Acquired Fund, 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;
7.4. Hartford HLS Series Fund II, on behalf of the Acquired 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
Hartford HLS Series Fund II, on behalf of the Acquired Fund, on or before the
Closing Date;
7.5. The number of full and fractional Acquiring Fund Shares to be
issued in connection with the Reorganization shall have been calculated in
accordance with paragraph 1.1 herein; and
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7.6. The Acquired Fund 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 Date; 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 FUND AND THE
ACQUIRED FUND
If any of the conditions set forth below have not been satisfied on or
before the Closing Date with respect to Hartford HLS Series Fund II, on behalf
of the Acquired Fund, Hartford Series Fund may, at its option, refuse to
consummate the transactions contemplated by this agreement. If any of the
conditions set forth below have not been satisfied on or before the Closing Date
with respect to Hartford Series Fund, on behalf of the Acquiring Fund, Hartford
HLS Series Fund II may, at its option, refuse 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 Fund in accordance with the provisions of Hartford HLS Series Fund
II's Charter and 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 Fund. Notwithstanding anything herein to the
contrary, the Companies may not 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 the Companies' 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
the Companies to permit consummation, in all material respects, of the
transactions contemplated hereby shall have been obtained, except where failure
to obtain any such consent, order or permit would not involve a risk of a
material adverse effect on the assets or properties of the Acquiring Fund or the
Acquired Fund;
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 Companies shall have received the opinion of counsel to the
Companies addressed to the Companies 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 counsel to the Companies of representations it shall request of the
Companies. Notwithstanding anything herein to the contrary, the Companies may
not consummate such transactions contemplated by the Agreement if this condition
is not satisfied.
9. INDEMNIFICATION
9.1. Hartford Series Fund, out of the Acquiring Fund's assets and
property (including any amounts paid to the Acquiring Fund pursuant to any
applicable liability insurance policies or indemnification agreements), agrees
to indemnify and hold harmless the Acquired Fund 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 the Acquired Fund may become subject, insofar as 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, provided that such
indemnification by the Acquiring Fund is not in violation of any applicable law.
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9.2. Hartford HLS Series Fund II, out of the Acquired Fund's assets
and property (including any amounts paid to the Acquired Fund pursuant to any
applicable liability insurance policies or indemnification agreements), agrees
to indemnify and hold harmless the Acquiring Fund 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 the Acquiring Fund may become subject, insofar as such loss, claim,
damage, liability or expense (or actions with respect thereto) arises out of or
is based on any breach by the Acquired Fund of any of its representations,
warranties, covenants or agreements set forth in this Agreement, provided that
such indemnification by the Acquired Fund is not in violation of any applicable
law.
10. BROKERAGE FEES AND EXPENSES
10.1. Hartford Series Fund, on behalf of the Acquiring Fund and on
behalf of the Acquired Fund, represents and warrants that there are no brokers
or finders entitled to receive any payments in connection with the transactions
provided for herein.
10.2. [The expenses relating to the proposed Reorganization will be
borne solely by HL Investment Advisors, LLC. No such expenses shall be borne by
the Acquired Fund or the Acquiring Fund, except for brokerage fees and expenses
incurred in connection with the Reorganization. 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, if any, preparation of the
Registration Statement, printing and distributing the Proxy Statement, 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.]
11. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
11.1. The Companies have not made any representation, warranty or
covenant, on behalf of either the Acquired Fund or the Acquiring Fund, as
applicable, not set forth herein, and this Agreement constitutes the entire
agreement between the Acquiring Fund and Acquired Fund with respect to the
Reorganization.
11.2. 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 and the obligations of each of the
Acquired Fund and Acquiring Fund in paragraphs 9.1 and 9.2 shall survive the
Closing.
12. TERMINATION
This Agreement may be terminated and the transactions contemplated
hereby may be abandoned by resolution of Hartford Series Fund's or Hartford HLS
Series Fund II's Board of Directors, at any time prior to the Closing Date, if
circumstances should develop that, in its opinion, make proceeding with the
Agreement inadvisable.
13. AMENDMENTS
This Agreement may be amended, modified or supplemented in such manner
as may be deemed necessary or advisable by the authorized officers of the
Companies; provided, however, that following the meeting of the shareholders of
the Acquired Fund called by Hartford HLS Series Fund II pursuant to paragraph
5.2 herein, no such amendment may have the effect of changing the provisions for
determining the number of Acquiring Fund Shares to be issued to the Acquired
Fund Shareholders under this Agreement to the detriment of such shareholders
without their further approval.
14. HEADINGS; 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.
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14.2. 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.
14.3. 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 their respective
successors and assigns, any rights or remedies under or by reason of this
Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its President or Vice President.
HARTFORD SERIES FUND, INC., ON BEHALF OF ITS HARTFORD
INTERNATIONAL OPPORTUNITIES HLS FUND
By: _______________________________
Title:______________________________
HARTFORD HLS SERIES FUND II, INC., ON BEHALF OF ITS
HARTFORD INTERNATIONAL STOCK HLS FUND
By: _______________________________
Title:______________________________
WITH RESPECT TO PARAGRAPH 10.2 OF THIS AGREEMENT,
ACCEPTED AND ACKNOWLEDGED BY:
HL INVESTMENT ADVISORS, LLC
By: _______________________________
Title:______________________________