THE BOARD, INCLUDING THE INDEPENDENT DIRECTORS
UNANIMOUSLY RECOMMENDS THAT THE SHAREHOLDERS OF THE
FUNDS APPROVE THE REORGANIZATION AGREEMENT.
If the Reorganization is not approved by shareholders of every Fund, or the Board of the Company or Trust terminates and abandons the Reorganization, the Company will continue to operate as a Minnesota corporation.
GENERAL INFORMATION ABOUT THE FUNDS
Management and Other Service Providers
Set forth below is a description of the current service providers of the Company and the proposed service providers of the Trust.
Adviser. The investment adviser for the Company is Advantus Capital Management, Inc. (“Adviser”). The Adviser is located at 400 Robert Street North, St. Paul, Minnesota 55101-2098.
Sub-Adviser. The investment sub-adviser of the International Bond Portfolio is Franklin Advisers, Inc. (“Sub-Adviser”). The Sub-Adviser is located at One Franklin Parkway, San Mateo, California 94403-1906.
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Principal Underwriter and Distributor. Shares of the Funds are offered on a continuous basis through Securian Financial Services, Inc. (“Securian Financial”), 400 Robert Street North, St. Paul, Minnesota 55101-2098, as distributor of the Funds pursuant to a distribution agreement between the Company and Securian Financial. As distributor, Securian Financial acts as the Company’s agent to underwrite, sell and distribute shares in a continuous offering, pursuant to a best efforts arrangement. Shares of the Funds are sold only to separate accounts of the Minnesota Life Companies.
Administrator. The Company has entered into administrative service agreements with Minnesota Life Insurance Company (“Minnesota Life”), 400 Robert Street North, St. Paul, Minnesota 55101-2098, and with State Street Bank and Trust Company (“State Street”), 225 Franklin Street, Boston, Massachusetts 02110, pursuant to which Minnesota Life and State Street provide administrative services to the Funds.
Independent Registered Public Accounting Firm. The Audit Committee and the full Board of Directors, including a majority of the Directors who are not interested persons of Advantus Capital or the Company, have selected KPMG LLP (“KPMG”), 4200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, Minnesota 55402, to be the Company’s independent registered public accounting firm for the Company’s current fiscal year. KPMG examines the annual financial statements of the Company and provides certain other audit-related and tax-related services to the Company.
KPMG, in accordance with Independence Standards Board Standard No. 1 (ISB No. 1), has confirmed to the Audit Committee that they are independent auditors with respect to the Funds.
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Audit Fees – The aggregate fees billed for professional services rendered by KPMG for the audit of the Company’s annual financial statements or services normally provided in connection with statutory and regulatory filings or engagements for the last two fiscal years ended December 31, 2010 and December 31, 2009 were $169,520 and $165,550, respectively.
Audit Related Fees – For the last two fiscal years ended December 31, 2010 and December 31, 2009, no fees for assurance and related services that are reasonably related to the performance of the audit or review of financial statements that were not reported as Audit Fees above were billed by KPMG.
Tax Fees – The aggregate fees billed for professional services rendered by KPMG to the Company for tax compliance, tax advice, tax planning and tax return preparation for the last two fiscal years ended December 31, 2010 and December 31, 2009 were $14,000 and $16,560, respectively. These services consisted of KPMG reviewing the Company’s excise tax returns, distribution requirements and registered investment company tax returns, as well as consultations regarding the tax consequences of specific investments.
During the fiscal years ended December 31, 2010 and December 31, 2009, no fees for tax compliance, tax advice or tax planning services that relate directly to the operations and financial reporting of the Company were billed by KPMG to
29
the Company’s investment adviser or any other entity controlling, controlled by, or under common control with the investment adviser that provides ongoing services to the Company.
All Other Fees –There were no fees billed for the fiscal years ended December 31, 2010 and December 31, 2009 for products and services provided by KPMG to the Company, other than the services reported in Audit Fees, Audit Related Fees and Tax Fees above.
For the last two fiscal years ended December 31, 2010 and December 31, 2009, no fees for services rendered to the Company and the Company’s investment adviser and any entity controlling, controlled by, or under common control with the investment adviser that provides ongoing services to the Company for non-audit services that relate directly to the operations and financial reporting of the Company were billed by KPMG.
Audit Committee Pre-Approval Policies –The Audit Committee of the Board of Directors meets with the Company’s independent registered public accounting firm and Company management to review and pre-approve all audit services to be provided by the independent accountants. The Audit Committee also pre-approves all non-audit services to be provided by the Company’s independent registered public accounting firm to the Company; provided that such services may also be approved by the chair of the Audit Committee if the estimated fees for such services do not exceed $20,000. In addition, the pre-approval requirement does not apply to non-audit services that (i) were not recognized as such at the time of the engagement, (ii) do not aggregate more than 5% of total revenues paid to the Company’s independent registered public accounting firm by the Company during the fiscal year in which the services are
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provided, if the audit committee approves the provision of such non-audit services prior to the completion of the audit; and (iii) such non-audit services are promptly brought to the attention of the Audit Committee of the Company and approved prior to completion of the audit by the Audit Committee or by one or more members of the Audit Committee who are members of the Board of Directors to whom authority to grant such approvals has been delegated by the Audit Committee (the “Pre-Approval Requirement Waiver Procedure”).
The Audit Committee, pursuant to Rule 2-01(c)(7)(ii) of Regulation S-X, also pre-approves the KPMG’s engagements for non-audit services with the Company’s investment adviser, Advantus Capital, and any entity controlling, controlled by, or under common control with the investment adviser that provides ongoing services to the Company, if the engagement relates directly to the operations and financial reporting of the Company. The Audit Committee has determined that the provision by KPMG of the non-audit services rendered to Advantus Capital and entities controlling, controlled by or under common control with Advantus Capital that provides ongoing services to the Company and its Funds that were not pre-approved by the Audit Committee is compatible with maintaining KPMG’s independence.
Representatives of KPMG are not expected to be present at the Special Meeting, but have been given the opportunity to make a statement if they so desire.
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Record Date and Outstanding Shares
Only shareholders of record of the Funds at the close of business on August 23, 2011 are entitled to notice of and to vote at the meeting and any postponement or adjournment thereof. On that date, the Company had [________]648,115,228.847 shares outstanding and entitled to vote, and each Fund had the following number of shares outstanding and entitled to vote:
| | | Total Number of Shares |
| Fund | | | Outstanding |
| Advantus Bond Portfolio – Class 1 | | [___________]219,482.513 | |
| Advantus Bond Portfolio – Class 2 | | 201,564,628.554 | |
| Advantus Index 400 Mid-Cap Portfolio – Class 1 | | [___________]104,594.311 | |
| Advantus Index 400 Mid-Cap Portfolio – Class 2 | | 79,124,841.292 | |
| Advantus Index 500 Portfolio – Class 1 | | [___________]80,911.219 | |
| Advantus Index 500 Portfolio – Class 2 | | 97,026,177.203 | |
| Advantus International Bond Portfolio– Class 1 | | [___________]160,314.988 | |
| Advantus International Bond Portfolio – Class 2 | | 53,503,722.396 | |
| Advantus Money Market Portfolio | | [___________]111,466,372.228 | |
| Advantus Mortgage Securities Portfolio– Class 1 | | [___________]111,517.094 | |
| Advantus Mortgage Securities Portfolio – Class 2 | | 65,889,218.811 | |
| Advantus Real Estate Securities Portfolio– Class 1 | | [___________]163,801.424 | |
| Advantus Real Estate Securities Portfolio – Class 2 | | 38,699,646.814 | |
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Fund Shares Owned by the Minnesota Life Companies
On the Record Date, Minnesota Life owned 99.9% of the outstanding voting shares of each Fund. Securian Life Insurance Company, a Minnesota corporation, owns 0.1% of the outstanding voting shares of each Fund.
Security Ownership of Certain Beneficial Owners and Management
The officers and directors of the Company cannot directly own shares of the Funds without purchasing an insurance contract through a participating insurance company. As of the record date, the officers and directorsRecord Date, each of the FundNominees, Directors and executive officers of the Company beneficially owned individually and collectively as a group, beneficially owned noneless than 1% of the outstanding shares of each Fund, and Minnesota Life Companies were the record owners of 100% of the shares of each of the Funds.
Voting Rights The following table sets forth the aggregate dollar range of equity securities owned by each Nominee of the Company as of the Record Date.
| | | | Aggregate Dollar Range |
| | | | of Equity Securities in All |
| | | | Registered Investment |
| | | | Companies Overseen |
| | Dollar Range of | | or to be Overseen |
| | Equity Securities | | by Directors in Family |
| | in the Fund | | of Investment Companies |
| Independent Nominees | | | | |
| Linda L. Henderson | | | | None |
| All Funds | | None | | |
|
| William C. Melton | | | | $100,001 - $500,000 |
| Bond | | $10,001 - $50,000 | | |
| Index 400 Mid-Cap | | $10,001 - $50,000 | | |
| Index 500 | | $50,001 - $100,000 | | |
| All other Funds | | None | | |
|
| Julie K. Getchell | | | | None |
| All Funds | | None | | |
|
| Interested Nominee | | | | |
| Gregory S. Strong | | | | None |
| All Funds | | None | | |
Voting Rights
Shareholders of each Fund are entitled to one vote for each full share held and are entitled to fractional votes for fractional shares. Due to the pass-through voting structure of variable annuity contracts and variable life insurance policies, the Minnesota Life Companies will vote shares in the separate account(s). However, they are required by law to request voting instructions from Contract Owners and
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must vote shares in the separate account(s) as instructed by the Contract Owner(s), including shares for which no instructions have been received, in proportion to the voting instructions received.
Contract Owners may revoke their instructions at any time up until voting results are announced at the Meeting. Contract Owners can do this either by (1) writing to the Secretary of the Company, (2) executing and returning to the Company a voting instruction form with a later date, or (3) providing voting instructions in person at the Meeting and notifying the election judge that they are revoking their prior voting instructions. If you need a new voting instruction form,
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please call the Company at 1-800-995-3850, and a new voting instruction form will be sent to you. If you return an executed voting instruction card without instructions, your shares will be voted “for” each proposal.
None of the matters to be presented at the Meeting will entitle any shareholder to cumulative voting rights.
Quorum
In order for the Meeting to go forward for the Company (or a Fund), there must be a quorum. This means that at least a majority of the Company’s (or the Fund’s) shares must be represented at the Meeting. Because Minnesota Life Companies own all of the shares of each Fund through their separate accounts, their presence at the Meeting in person or by proxy will meet the quorum requirement.
Adjournments
If a quorum is not present at the Meeting, those present in person or by proxy shall adjourn to such day as they shall, by majority vote, agree upon without further notice other than an announcement at the Meeting at which such adjournment is taken. If sufficient votes to approve a proposal are not obtained for the Company (or any Fund), the proxies may propose one or more adjournments of the Meeting (with respect to the Company or that Fund), to permit further solicitation of voting instructions. Any adjournment will require a vote in favor of the adjournment by the holders of a majority of the shares represented in person or by proxy at the Meeting (or any adjournment of the Meeting). The persons named as proxies will vote upon such adjournment in their discretion after consideration of the best interests of all shareholders.
Shareholder Proposals
The Funds do not hold annual or other regular meetings of the shareholders. Since the Funds do not hold regular meetings of shareholders, the anticipated date of the next shareholder meeting of the Fund cannot be provided. To be considered for inclusion in the proxy statement for any subsequent meeting of shareholders, a shareholder proposal must be submitted a reasonable time before the proxy statement for that meeting is mailed. Whether a proposal is included in the proxy statement will be determined in accordance with applicable federal and state laws. The timely submission of a proposal does not guarantee its inclusion.
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Solicitation of Voting Instructions
Voting instructions are solicited primarily by mail. Additional solicitations may be made by telephone by officers or employees of Minnesota Life and its affiliates or by proxy soliciting firms retained by the Funds. Minnesota Life has retained Computershare Fund Services (the “Solicitor”) to provide voting instruction solicitation services in connection with the Meeting at an estimated cost of $92,000. The additional solicitation services outlined below may be utilized at an estimated cost of $21,000. In addition, the Funds may reimburse persons holding shares in their names or names of their nominees for expenses incurred in forwarding solicitation
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material to their beneficial owners. The Minnesota Life Companies have agreed to bear the costs of the Reorganization. The cost of preparing, printing and mailing the Proxy Statements and soliciting and tabulating voting instructions will be paid 50% by the Minnesota Life Companies and 50% by the Funds. The Funds’ portion will be allocated to each Fund on the basis of their respective net asset values.
As the Meeting date approaches, Contract Owners of the Funds may receive a call from a representative of the Solicitor if the Funds have not yet received their voting instruction. Authorization to permit the Solicitor to execute voting instructions may be obtained by telephonic instructions from Contract Owners. Voting instructions that are obtained telephonically will be recorded in accordance with the procedures set forth below. Management of the Funds believes that these procedures are reasonably designed to ensure that the identity of the Contract Owner casting the vote is accurately determined and that the voting instructions of the Contract
Owner are accurately determined. In all cases where a telephonic voting instruction is solicited, the solicitor’s representative is required to ask the Contract Owner for the Contract Owner’s full name, address, title (if the person giving the voting instruction is authorized to act on behalf of an entity, such as a corporation), the number of shares owned and to confirm that the Contract Owner has received this Proxy Statement in the mail. If the Contract Owner solicited agrees with the information provided to the Solicitor by the Funds, the Solicitor representative has the responsibility to explain the process, read the proposals listed on the voting instruction card, and ask for the Contract Owner’s instructions on each proposal. The Solicitor representative, although permitted to answer questions about the process, is not permitted to recommend to the Contract Owner how to vote, other than to read any recommendation set forth in this Proxy Statement. The Solicitor will record the Contract Owner’s instructions on the card. Within 72 hours, the Solicitor will send the Contract Owner a letter or mailgram to confirm the Contract Owner’s vote and ask the Contract Owner to call the Solicitor immediately if the Contract Owner’s instructions are not correctly reflected in the confirmation.
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EXHIBIT A
MINNESOTA STATUTES SECTIONS 302A.471 AND 302A.473
DISSENTERS’ RIGHTS
302A.471. Rights of dissenting shareholders
Subdivision 1. Actions creating rights. A shareholder of a corporation may dissent from, and obtain payment for the fair value of the shareholder’s shares in the event of, any of the following corporate actions:
(a) unless otherwise provided in the articles, an amendment of the articles that materially and adversely affects the rights or preferences of the shares of the dissenting shareholder in that it:
(1) alters or abolishes a preferential right of the shares;
(2) creates, alters, or abolishes a right in respect of the redemption of the shares, including a provision respecting a sinking fund for the redemption or repurchase of the shares;
(3) alters or abolishes a preemptive right of the holder of the shares to acquire shares, securities other than shares, or rights to purchase shares or securities other than shares;
(4) excludes or limits the right of a shareholder to vote on a matter, or to cumulate votes, except as the right may be excluded or limited through the authorization or issuance of securities of an existing or new class or series with similar or different voting rights; except that an amendment to the articles of an issuing public corporation that provides that section 302A.671 does not apply to a control share acquisition does not give rise to the right to obtain payment under this section; or
(5) eliminates the right to obtain payment under this subdivision;
(b) a sale, lease, transfer, or other disposition of property and assets of the corporation that requires shareholder approval under section 302A.661, subdivision 2, but not including a disposition in dissolution described in section 302A.725, subdivision 2, or a disposition pursuant to an order of a court, or a disposition for cash on terms requiring that all or substantially all of the net proceeds of disposition be distributed to the shareholders in accordance with their respective interests within one year after the date of disposition;
(c) a plan of merger, whether under this chapter or under chapter 322B, to which the corporation is a constituent organization, except as provided in subdivision 3, and except for a plan of merger adopted under section 302A.626;
(d) a plan of exchange, whether under this chapter or under chapter 322B, to which the corporation is a party as the corporation whose shares will be acquired by the acquiring organization, except as provided in subdivision 3;
(e) a plan of conversion adopted by the corporation; or
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(f) any other corporate action taken pursuant to a shareholder vote with respect to which the articles, the bylaws, or a resolution approved by the board directs that dissenting shareholders may obtain payment for their shares.
Subd. 2. Beneficial owners. (a) A shareholder shall not assert dissenters’ rights as to less than all of the shares registered in the name of the shareholder, unless the shareholder dissents with respect to all the shares that are beneficially owned by another person but registered in the name of the shareholder and discloses the name and address of each beneficial owner on whose behalf the shareholder dissents. In that event, the rights of the dissenter shall be determined as if the shares as to which the shareholder has dissented and the other shares were registered in the names of different shareholders.
(b) A beneficial owner of shares who is not the shareholder may assert dissenters’ rights with respect to shares held on behalf of the beneficial owner, and shall be treated as a dissenting shareholder under the terms of this section and section 302A.473, if the beneficial owner submits to the corporation at the time of or before the assertion of the rights a written consent of the shareholder.
Subd. 3. Rights not to apply. (a) Unless the articles, the bylaws, or a resolution approved by the board otherwise provide, the right to obtain payment under this section does not apply to a shareholder of (1) the surviving corporation in a merger with respect to shares of the shareholder that are not entitled to be voted on the merger and are not canceled or exchanged in the merger or (2) the corporation whose shares will be acquired by the acquiring organization in a plan of exchange with respect to shares of the shareholder that are not entitled to be voted on the plan of exchange and are not exchanged in the plan of exchange.
(b) If a date is fixed according to section 302A.445, subdivision 1, for the determination of shareholders entitled to receive notice of and to vote on an action described in subdivision 1, only shareholders as of the date fixed, and beneficial owners as of the date fixed who hold through shareholders, as provided in subdivision 2, may exercise dissenters’ rights.
(c) Notwithstanding subdivision 1, the right to obtain payment under this section, other than in connection with a plan of merger adopted under section 302A.621, is limited in accordance with the following provisions:
(1) The right to obtain payment under this section is not available for the holders of shares of any class or series of shares that is listed on the New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Market, or the NASDAQ Global Select Market.
(2) The applicability of clause (1) is determined as of:
(i) the record date fixed to determine the shareholders entitled to receive notice of, and to vote at, the meeting of shareholders to act upon the corporate action described in subdivision 1; or
(ii) the day before the effective date of corporate action described in subdivision 1 if there is no meeting of shareholders.
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(3) Clause (1) is not applicable, and the right to obtain payment under this section is available pursuant to subdivision 1, for the holders of any class or series of shares who are required by the terms of the corporate action described in subdivision 1 to accept for such shares anything other than shares, or cash in lieu of fractional shares, of any class or any series of shares of a domestic or foreign corporation, or any other ownership interest of any other organization, that satisfies the standards set forth in clause (1) at the time the corporate action becomes effective.
Subd. 4. Other rights. The shareholders of a corporation who have a right under this section to obtain payment for their shares do not have a right at law or in equity to have a corporate action described in subdivision 1 set aside or rescinded, except when the corporate action is fraudulent with regard to the complaining shareholder or the corporation.
302A.473. Procedures for asserting dissenters’ rights
Subdivision 1. Definitions. (a) For purposes of this section, the terms defined in this subdivision have the meanings given them.
(b) “Corporation” means the issuer of the shares held by a dissenter before the corporate action referred to in section 302A.471, subdivision 1 or the successor by merger of that issuer.
(c) “Fair value of the shares” means the value of the shares of a corporation immediately before the effective date of the corporate action referred to in section 302A.471, subdivision 1.
(d) “Interest” means interest commencing five days after the effective date of the corporate action referred to in section 302A.471, subdivision 1, up to and including the date of payment, calculated at the rate provided in section 549.09 for interest on verdicts and judgments.
Subd. 2. Notice of action. If a corporation calls a shareholder meeting at which any action described in section 302A.471, subdivision 1 is to be voted upon, the notice of the meeting shall inform each shareholder of the right to dissent and shall include a copy of section 302A.471 and this section and a brief description of the procedure to be followed under these sections.
Subd. 3. Notice of dissent. If the proposed action must be approved by the shareholders and the corporation holds a shareholder meeting, a shareholder who is entitled to dissent under section 302A.471 and who wishes to exercise dissenters’ rights must file with the corporation before the vote on the proposed action a written notice of intent to demand the fair value of the shares owned by the shareholder and must not vote the shares in favor of the proposed action.
Subd. 4. Notice of procedure; deposit of shares. (a) After the proposed action has been approved by the board and, if necessary, the shareholders, the corporation shall send to (i) all shareholders who have complied with subdivision 3, (ii) all shareholders who did not sign or consent to a written action that gave effect to the
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action creating the right to obtain payment under section 302A.471, and (iii) all shareholders entitled to dissent if no shareholder vote was required, a notice that contains:
(1) the address to which a demand for payment and certificates of certificated shares must be sent in order to obtain payment and the date by which they must be received;
(2) any restrictions on transfer of uncertificated shares that will apply after the demand for payment is received;
(3) a form to be used to certify the date on which the shareholder, or the beneficial owner on whose behalf the shareholder dissents, acquired the shares or an interest in them and to demand payment; and
(4) a copy of section 302A.471 and this section and a brief description of the procedures to be followed under these sections.
(b) In order to receive the fair value of the shares, a dissenting shareholder must demand payment and deposit certificated shares or comply with any restrictions on transfer of uncertificated shares within 30 days after the notice required by paragraph (a) was given, but the dissenter retains all other rights of a shareholder until the proposed action takes effect.
Subd. 5. Payment; return of shares. (a) After the corporate action takes effect, or after the corporation receives a valid demand for payment, whichever is later, the corporation shall remit to each dissenting shareholder who has complied with subdivisions 3 and 4 the amount the corporation estimates to be the fair value of the shares, plus interest, accompanied by:
(1) the corporation’s closing balance sheet and statement of income for a fiscal year ending not more than 16 months before the effective date of the corporate action, together with the latest available interim financial statements;
(2) an estimate by the corporation of the fair value of the shares and a brief description of the method used to reach the estimate; and
(3) a copy of section 302A.471 and this section, and a brief description of the procedure to be followed in demanding supplemental payment.
(b) The corporation may withhold the remittance described in paragraph (a) from a person who was not a shareholder on the date the action dissented from was first announced to the public or who is dissenting on behalf of a person who was not a beneficial owner on that date. If the dissenter has complied with subdivisions 3 and 4, the corporation shall forward to the dissenter the materials described in paragraph (a) a statement of the reason for withholding the remittance, and an offer to pay to the dissenter the amount listed in the materials if the dissenter agrees to accept that amount in full satisfaction.
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The dissenter may decline the offer and demand payment under subdivision 6. Failure to do so entitles the dissenter only to the amount offered. If the dissenter makes demand, subdivisions 7 and 8 apply.
(c) If the corporation fails to remit payment within 60 days of the deposit of certificates or the imposition of transfer restrictions on uncertificated shares, it shall return all deposited certificates and cancel all transfer restrictions. However, the corporation may again give notice under subdivision 4 and require deposit or restrict transfer at a later time.
Subd. 6. Supplemental payment; demand. If a dissenter believes that the amount remitted under subdivision 5 is less than the fair value of the shares plus interest, the dissenter may give written notice to the corporation of the dissenter’s own estimate of the fair value of the shares, plus interest, within 30 days after the corporation mails the remittance under subdivision 5, and demand payment of the difference. Otherwise, a dissenter is entitled only to the amount remitted by the corporation.
Subd. 7. Petition; determination. If the corporation receives a demand under subdivision 6, it shall, within 60 days after receiving the demand, either pay to the dissenter the amount demanded or agreed to by the dissenter after discussion with the corporation or file in court a petition requesting that the court determine the fair value of the shares, plus interest. The petition shall be filed in the county in which the registered office of the corporation is located, except that a surviving foreign corporation that receives a demand relating to the shares of a constituent domestic corporation shall file the petition in the county in this state in which the last registered office of the constituent corporation was located. The petition shall name as parties all dissenters who have demanded payment under subdivision 6 and who have not reached agreement with the corporation. The corporation shall, after filing the petition, serve all parties with a summons and copy of the petition under the Rules of Civil Procedure. Nonresidents of this state may be served by registered or certified mail or by publication as provided by law. Except as otherwise provided, the Rules of Civil Procedure apply to this proceeding. The jurisdiction of the court is plenary and exclusive. The court may appoint appraisers, with powers and authorities the court deems proper, to receive evidence on and recommend the amount of the fair value of the shares. The court shall determine whether the shareholder or shareholders in question have fully complied with the requirements of this section, and shall determine the fair value of the shares, taking into account any and all factors the court finds relevant, computed by any method or combination of methods that the court, in its discretion, sees fit to use, whether or not used by the corporation or by a dissenter. The fair value of the shares as determined by the court is binding on all shareholders, wherever located. A dissenter is entitled to judgment in cash for the amount by which the fair value of the shares as determined by the court, plus interest, exceeds the amount, if any, remitted under subdivision 5, but shall not be liable to the corporation for the amount, if any, by which the amount, if any, remitted to the dissenter under subdivision 5 exceeds the fair value of the shares as determined by the court, plus interest.
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Subd. 8. Costs; fees; expenses. (a) The court shall determine the costs and expenses of a proceeding under subdivision 7, including the reasonable expenses and compensation of any appraisers appointed by the court, and shall assess those costs and expenses against the corporation, except that the court may assess part or all of those costs and expenses against a dissenter whose action in demanding payment under subdivision 6 is found to be arbitrary, vexatious, or not in good faith.
(b) If the court finds that the corporation has failed to comply substantially with this section, the court may assess all fees and expenses of any experts or attorneys as the court deems equitable. These fees and expenses may also be assessed against a person who has acted arbitrarily, vexatiously, or not in good faith in bringing the proceeding, and may be awarded to a party injured by those actions.
(c) The court may award, in its discretion, fees and expenses to an attorney for the dissenters out of the amount awarded to the dissenters, if any.
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EXHIBIT B
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this “Agreement”) is made as of [________], 2011, by and between Securian Funds Trust, a Delaware statutory trust (the “Successor Entity”), on behalf of each of its series listed in Exhibit A attached hereto (each, a “Successor Fund”), and Advantus Series Fund, Inc., a Minnesota corporation (the “Predecessor Entity”), on behalf of each of its series listed in Exhibit A attached hereto (each, a “Predecessor Fund”). The Predecessor Entity and the Successor Entity each maintain its principal place of business at 400 North Robert Street, St. Paul, Minnesota 55101.
WHEREAS, each of the Predecessor Funds is a series of the Predecessor Entity, an open-end management investment company registered pursuant to the Investment Company Act of 1940, as amended (the “1940 Act”);
WHEREAS, each of the Successor Funds has been organized in order to continue the business and operations of the corresponding Predecessor Fund;
WHEREAS, each Successor Fund currently has no assets and has carried on no business activities prior to the date first shown above and will have had no assets and will have carried on no business activities prior to the consummation of the transactions described herein;
WHEREAS, the contemplated reorganization for each Predecessor Fund and its corresponding Successor Fund as set forth in Exhibit A (the “Reorganization”) will consist of: (a) the sale, assignment, conveyance, transfer and delivery of all of the property and assets of the Predecessor Fund to the corresponding Successor Fund in exchange solely for shares of beneficial interest of the Successor Fund (“Successor Fund Shares”) corresponding to the outstanding common shares of the Predecessor Fund (“Predecessor Fund Shares”), as described herein; (b) the assumption by the Successor Fund of all liabilities of the Predecessor Fund; and (c) the subsequent distribution of the Successor Fund Shares (which, at the time of such distribution, shall constitute all of the assets of the Predecessor Fund) to the shareholders of the Predecessor Fund in complete liquidation of the Predecessor Fund, as provided herein, all upon the terms and conditions hereinafter set forth in this Agreement;
WHEREAS, following the Reorganization of each Predecessor Fund, the Predecessor Entity shall voluntarily dissolve, terminate and have its affairs wound up in accordance with Minnesota state law;
WHEREAS, the Predecessor Entity and the Successor Entity intend to request, but have not yet received, a private letter ruling from the United States Internal Revenue Service, in form and substance acceptable to the Predecessor Entity (if still in existence) and the Successor Entity, substantially to the effect that, upon completion of the Reorganization, the Successor Funds will not constitute “publicly traded partnerships” within the meaning of Section 7704(b) of the Code;
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WHEREAS, it is the intent of the parties to this Agreement that if the private letter ruling described in the immediately preceding paragraph is received, each Successor Fund shall be qualified as either a disregarded entity for federal income tax purposes or a partnership as defined in Subchapter K of the Internal Revenue Code of 1986, as amended (the “Code”) at all times following the completion of the Reorganization, provided that any Successor Fund that does not wish to be so qualified as either a disregarded entity or a partnership shall take all necessary steps to make a proper and timely election to be treated as a regulated investment company as defined in Subchapter M of the Code with respect to the taxable year beginning on the day after the Closing Date and each subsequent taxable year (each, an “Electing Successor Fund”);
WHEREAS, assuming the private letter ruling is received and each Successor Fund (excluding any Electing Successor Fund) is treated as either a disregarded entity or as a partnership, as described in the preceding paragraph, the Reorganization contemplated by this Agreement is intended to qualify, with respect to each Predecessor Fund and its corresponding Successor Fund as set forth in Exhibit A (but excluding any Electing Successor Fund and its corresponding Predecessor Fund), as a distribution in complete liquidation of the Predecessor Fund within the meaning of Section 332 of the Code, and as a tax-free contribution to a partnership under Section 721 of the Code;Code if the Successor Fund is treated as a partnership for federal income tax purposes following the Reorganization, or as a distribution in complete liquidation of the Predecessor Fund within the meaning of Section 332 of the Code if the Successor Fund is treated as a disregarded entity for federal income tax purposes following the Reorganization;
WHEREAS, in accordance with the foregoing treatment, this Agreement is intended to be and is adopted as, with respect to each Predecessor Fund and its corresponding Successor Fund as set forth in Exhibit A (but excluding any Electing Successor Fund and its corresponding Predecessor Fund), a plan of liquidation within the meaning of Section 332(a) of the Code;
WHEREAS, in the event that the private letter ruling described above is not timely received, the parties to this Agreement intend in the alternative that the Successor Entity, on behalf of each Successor Fund, shall take all necessary steps to make a proper and timely election for each Successor Fund to be treated as a regulated investment company as defined in Subchapter M of the Code with respect to the taxable year beginning on the day after the Closing Date and each subsequent taxable year;
WHEREAS, with respect to each Successor Fund (including an Electing Successor Fund) for which an election to be treated as a regulated investment company is properly and timely made, the Reorganization contemplated by this Agreement is intended to qualify as a “reorganization” within the meaning of Section 368(a)(1) of the Code and this Agreement is intended to be and is adopted as, with respect to each such Predecessor Fund and its corresponding Successor Fund as set forth in Exhibit A, a plan of reorganization within the meaning of Section 368 of the Code;
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WHEREAS, the Board of Trustees of the Successor Entity (the “Successor Entity Board”) has determined, with respect to each Successor Fund, that the sale, assignment, conveyance, transfer and delivery of all of the property and assets of the corresponding Predecessor Fund for Successor Fund Shares and the assumption
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of all liabilities of such Predecessor Fund by the corresponding Successor Fund pursuant to this Agreement is in the best interests of each Successor Fund and its shareholders; and
WHEREAS, the Board of Directors of the Predecessor Entity (the “Predecessor Entity Board”) has determined, with respect to each Predecessor Fund, that the sale, assignment, conveyance, transfer and delivery of all of the property and assets of such Predecessor Fund for Successor Fund Shares and the assumption of all liabilities of such Predecessor Fund by the corresponding Successor Fund pursuant to this Agreement is in the best interests of each Predecessor Fund and its shareholders and that the interests of the existing shareholders will not be diluted as a result of this transaction.
NOW, THEREFORE, in consideration of the premises and of the covenants and agreements hereinafter set forth, the parties hereto covenant and agree as follows:
SECTION 1. THE REORGANIZATION
Section 1.1. Subject to requisite approvals and the other terms and conditions herein set forth and on the basis of the representations and warranties contained herein, the Predecessor Entity, on behalf of each Predecessor Fund, agrees to sell, assign, convey, transfer and deliver all of each Predecessor Fund’s property and assets, as set forth in Section 1.2, to the corresponding Successor Fund, and the Successor Entity, on behalf of each Successor Fund, agrees in exchange therefor: (a) to deliver to the corresponding Predecessor Fund the number, determined in accordance with Section 1.4, of full and fractional Successor Fund Shares corresponding to the Predecessor Fund Shares as of the time and date set forth in Section 3.1; and (b) to assume all liabilities of such Predecessor Fund, as set forth in Section 1.2. Such transactions, in each case with respect to a Predecessor Fund and a corresponding Successor Fund, shall take place on the closing date as provided for in Section 3.1 (a “Closing Date”). Exhibit A attached hereto shows each Successor Fund and the corresponding Predecessor Fund, including such Predecessor Fund’s name and the designation of the series of shares representing such fund in the Predecessor Entity’s Amended and Restated Articles of Incorporation, dated May 3, 2000, and as amended on September 19, 2003 and December 10, 2007 (the “Articles of Incorporation”), and certificates of designation.
Section 1.2. The property and assets of the Predecessor Entity, attributable to each Predecessor Fund, to be sold, assigned, conveyed, transferred and delivered to and acquired by the Successor Entity, on behalf of the corresponding Successor Fund, shall consist of all assets and property of every kind and nature of the Predecessor Fund, including, without limitation, all rights, receivables (including dividend, interest and other receivables), cash, cash equivalents, claims (whether absolute or contingent, known or unknown), securities, commodities and futures interests, goodwill and other intangible property, any deferred or prepaid expenses and all interests, rights, privileges
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and powers (collectively, with respect to each Predecessor Fund separately, the “Assets”). For the avoidance of doubt, the Assets pertaining to a Predecessor Fund include, without limitation: (a) the “assets belonging to” the series of shares representing such
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fund, as the term “assets belonging to” is defined in Article 6(C)(1) of the Articles of Incorporation; and (b) the “General Items” which have been allocated to such series of shares pursuant to Article 6(C)(1) of the Articles of Incorporation. Each Successor Fund shall assume all of the liabilities and obligations of the corresponding Predecessor Fund, including, without limitation, all indemnification obligations of such Predecessor Fund with respect to the current and former Directors and officers of the Predecessor Entity, whether accrued or contingent, known or unknown, existing at the Valuation Date (as defined in Section 2) (collectively, with respect to each Predecessor Fund separately, the “Liabilities”). For the avoidance of doubt, the “Liabilities” pertaining to a Predecessor Fund include, without limitation, the “liabilities belonging to” the series of shares representing such fund, as the term “liabilities belonging to” is defined in Article 6(C)(2) of the Articles of Incorporation. The Predecessor Fund will sell, assign, convey, transfer and deliver to the corresponding Successor Fund any rights, stock dividends, or other securities received by the Predecessor 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 corresponding Successor 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 Predecessor Fund acquired by the corresponding Successor Fund.
Section 1.3. Immediately upon delivery to the Predecessor Fund of the corresponding Successor Fund Shares, the Predecessor Entity, on behalf of such Predecessor Fund, as the then sole shareholder of the corresponding Successor Fund, shall: (a) approve the advisory agreement and sub-advisory agreement (as applicable) with respect to the Successor Fund; (b) approve the Restated Rule 12b-1 Distribution Plan with respect to the Successor Fund; (c) elect Trustees of the Successor Entity; and (d) approve any other matter for which shareholder approval is required.
Section 1.4. Immediately following the actions contemplated by Section 1.1, the Predecessor Entity shall take such actions necessary to complete the Reorganization of each Predecessor Fund. To complete the Reorganization, the Predecessor Entity, on behalf of each Predecessor Fund, shall: (a) distribute to its shareholders of record of Predecessor Fund Shares as of the Closing Date (the “Predecessor Fund Shareholders”), on a pro rata basis, the Successor Fund Shares of the corresponding Successor Fund received by the Predecessor Entity, on behalf of the respective Predecessor Fund, pursuant to Section 1.1, in complete liquidation of such Predecessor Fund Shares; and (b) terminate and dissolve in accordance with applicable Minnesota state law. Such distribution and liquidation shall be accomplished, with respect to the Predecessor Fund Shares, by the transfer of the corresponding Successor Fund Shares then credited to the account of the Predecessor Fund on the books of the Successor Fund to open accounts on the share records of the Successor Fund in the names of the Predecessor Fund Shareholders, and the cancellation of all issued and outstanding Predecessor Fund Shares on the books of the Predecessor Fund. The aggregate net asset value of Successor Fund Shares to be so credited to the Predecessor Fund Shareholders of the corresponding Predecessor Fund shall be equal to the aggregate net
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net asset value of the Predecessor Fund Shares owned by Predecessor Fund Shareholders on the Closing Date. The Successor Fund shall not issue certificates representing Successor Fund Shares in connection with such exchange.
Section 1.5. Ownership of Successor Fund Shares will be shown on the books of each Successor Fund.
Section 1.6. Any regulatory reporting responsibility of a Predecessor Fund, including, but not limited to, the responsibility for filing regulatory reports or other documents with the Securities and Exchange Commission (the “Commission”), any state securities commission, or any other relevant regulatory authority (but excluding the filing of any tax returns), is and shall remain the responsibility of the Predecessor Entity, on behalf of such Predecessor Fund.
Section 1.7. All of the books and records of the Predecessor Entity, including all books and records required to be maintained under the 1940 Act, and the rules and regulations thereunder, shall be available to the Successor Entity from and after the Closing Date and shall be turned over to the Successor Entity on or prior to the termination of the Predecessor Entity.
Section 1.8. If, and to the extent the Board of Directors of the Predecessor Entity deems it advisable for federal income tax purposes, such Predecessor Funds shall make a distribution of net investment company taxable income, if any, and net capital gain, if any, immediately prior to the Effective Time.
Section 1.9. In the event that, by the last day in which a Successor Fund could make a timely election to be treated as a regulated investment company under Subchapter M of the Code for the taxable year beginning on the day after the Closing Date (the “RIC Election Date”), neither the Predecessor Entity nor the Successor Entity has received a private letter ruling from the United States Internal Revenue Service substantially to the effect that, upon completion of the Reorganization, the Successor Funds will not constitute “publicly traded partnerships” within the meaning of Section 7704(b) of the Code (the “Favorable Private Letter Ruling”), the Successor Entity shall take all necessary steps to make a proper and timely election for each Successor Fund to be treated as a regulated investment company as defined in Subchapter M of the Code for the taxable year beginning on the day after the Closing Date and each subsequent taxable year. In the event that a Favorable Private Letter Ruling is received by the RIC Election Date, and a Successor Fund does not intend to be treated as a partnership or disregarded entity for federal tax purposes, such Successor Fund may take all necessary steps to be treated as a regulated investment company for the taxable year beginning on the day after the Closing Date and each subsequent taxable year.
SECTION 2. VALUATION
The value of the Assets and the amount of the Liabilities of each Predecessor Fund shall be determined as of the time for calculation of its net asset value as set forth in the then-current prospectus for the Predecessor Fund, and after the declaration
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of any dividends by the Predecessor Fund, on the applicable Closing Date (such time
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and date being hereinafter called the “Valuation Date”), computed using the valuation procedures established by the Predecessor Entity Board. All computations of value and amounts shall be made by the fund accountant for each Predecessor Fund.
SECTION 3. CLOSING AND CLOSING DATE
Section 3.1. Subject to the terms and conditions set forth herein, the Closing Date with respect to each Reorganization shall be the second business day after each of the conditions in Sections 6, 7 and 8 has been satisfied or, if permissible, waived by the party entitled to the benefit of such condition, or such other date as the parties may agree with respect to such Reorganization. All acts taking place at the closing of a Reorganization as provided for in this Agreement with respect to each such Reorganization (a “Closing”) shall be deemed to take place simultaneously as of the close of business on the Closing Date for such Reorganization unless otherwise agreed to by the parties (the “Effective Time”). The close of business on a Closing Date shall be as of 4:00 p.m., Eastern Time, or such later time on that date as the Predecessor Fund’s net asset value is calculated in accordance with Section 2 and after the declaration of any dividends. Each Closing shall be held at the offices of the Successor Entity and Predecessor Entity or at such other time and/or place as the parties may agree.
Section 3.2. The Predecessor Entity shall direct Wells Fargo Bank Minnesota and The Bank of New York Mellon Corporation (each, a “Custodian”) to transfer ownership of the Assets from the accounts of the applicable Predecessor Fund that each Custodian maintains as custodian for the Predecessor Fund to the accounts of the corresponding Successor Fund that each Custodian maintains as custodian for the Successor Fund and to deliver to the Successor Entity, at the Closing, a certificate of an authorized officer stating that: (i) the Assets of the Predecessor Fund have been so transferred as of the Closing Date; and (ii) all necessary taxes in connection with the delivery of the Assets of the Predecessor Fund, including all applicable federal and state stock transfer stamps, if any, have been paid or provision for payment has been made.
Section 3.3. The Predecessor Entity shall, on behalf of each Predecessor Fund, direct the delivery to the Successor Entity at the Closing of the Reorganization of such Predecessor Fund a certificate of an authorized officer stating that its records contain the name and address of each Predecessor Fund Shareholder and the number and percentage ownership of Predecessor Fund Shares owned by each such shareholder immediately prior to the Closing as well as such records. Each Successor Fund shall deliver to the Secretary of the corresponding Predecessor Fund a confirmation evidencing that: (i) the appropriate number of Successor Fund Shares have been credited to such Predecessor Fund’s account on the books of such Successor Fund pursuant to Section 1.1 prior to the actions contemplated by Section 1.4; and (ii) the appropriate number of Successor Fund Shares have been credited to the accounts of the Predecessor Fund Shareholders on the books of such Successor Fund pursuant to Section 1.4. At the applicable Closing, each party shall deliver to the other party such bills of sale, checks, assignments, share certificates, if any, receipts or other documents as the other party or its counsel may reasonably request.
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Section 3.4. In the event that, on the Valuation Date: (i) the New York Stock Exchange or another primary trading market for portfolio securities of a Predecessor Fund (each, an “Exchange”) shall be closed to trading or trading thereupon shall be restricted; or (ii) trading or the reporting of trading on such Exchange or elsewhere shall be disrupted so that accurate appraisal of the value of the net assets of such Predecessor Fund is impracticable (in the judgment of the Predecessor Entity Board with respect to such Predecessor Fund), the Closing Date with respect to such Reorganization shall be postponed until the next business day after the day when trading shall have been fully resumed and reporting shall have been restored.
Section 3.5. The Predecessor Entity and the Successor Entity, in their discretion, may delay the Closing until receipt by the Predecessor Entity or Successor Entity or both of a private letter ruling from the United States Internal Revenue Service, in form and substance acceptable to the Predecessor Entity and the Successor Entity, substantially to the effect that, upon completion of the Reorganization, the Successor Funds will not constitute “publicly traded partnerships” within the meaning of Section 7704(b) of the Code; accordingly, the Closing may be delayed, but in no event later than one year after the approval of the Reorganization by the shareholders of the Predecessor Entity.
SECTION 4. REPRESENTATIONS AND WARRANTIES
Section 4.1. The Predecessor Entity, on behalf of each Predecessor Fund, severally, but not jointly, represents and warrants to the Successor Entity and the corresponding Successor Fund as follows:
(a) The Predecessor Entity is a corporation duly organized, validly existing and in good standing under the laws of the state of Minnesota; has the power to carry on its business as it is now being conducted; and is registered under the 1940 Act as an open-end, management investment company. Each Predecessor Fund is a series of the Predecessor Entity.
(b) The Predecessor Entity has authorized capital of one hundred trillion (100,000,000,000,000) shares of capital stock, par value of one cent ($0.01) per share. All of the outstanding shares have been duly authorized and are validly issued, fully paid, and non-assessable. Since the Predecessor Fund is engaged in the continuous offering and redemption of its shares, the number of outstanding shares may vary daily.
(c) The audited financial statements of such Predecessor Fund as of the end of the last fiscal year, and the subsequent unaudited semi-annual financial statements, if any (the “Predecessor Fund Financial Statements”), fairly present the financial position of such Predecessor Fund, and the results of its operations and changes in its net assets for the periods shown.
(d) The Predecessor Entity has the power to enter into and to carry out its obligations under this Agreement. This Agreement and the transactions contemplated by it have been duly authorized by the Board of Directors of the Predecessor Entity, the shareholders meetings referred to in Section 5.2
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will be called and held, and no other proceedings by the Predecessor Entity or the Predecessor Fund are necessary under the Predecessor Entity’s Governing Documents.
(e) The Predecessor Entity is not in violation of its Articles of Incorporation or Bylaws (the “Predecessor Entity’s Governing Documents”) or in default in the performance of any material agreement to which it is a party. The execution of this Agreement and the completion of the transactions contemplated by it will not conflict with, or constitute a breach of, any material contract or other instrument to which the Predecessor Fund is subject. The transactions will not result in any violation of the provisions of the Predecessor Entity’s Governing Documents or any law, administrative regulation, or administrative or court decree applicable to the Predecessor Fund.
(f) There are no liabilities of the Predecessor Fund other than: (i) liabilities disclosed in the Predecessor Fund Financial Statements; (ii) liabilities incurred in the ordinary course of business subsequent to the date of the latest annual or semi-annual financial statements; and (iii) liabilities previously disclosed to the corresponding Successor Fund, none of which has been materially adverse to the business, assets, or results of operation of the Predecessor Fund.
(g) There is no litigation, administrative proceeding, or investigation before any court or governmental body currently pending or, to the knowledge of the Predecessor Entity, threatened, that would materially and adversely affect the Predecessor Fund, its financial condition, or the conduct of its business, or that would prevent or hinder completion of the transactions contemplated by this Agreement. The Predecessor Entity knows of no facts that might form the basis for the institution of any such litigation, proceeding, or investigation and the Predecessor Entity is not a party to or subject to the provisions of any order, decree, or judgment.
(h) Except for contracts and agreements previously disclosed to the Successor Entity, the Predecessor Entity and Predecessor Fund is not a party to or subject to any material contract, debt instrument, plan, lease, franchise, license, or permit.
(i) All securities listed in the schedules of investments of the Predecessor Fund as of the Closing will be owned by the Predecessor Fund free and clear of any encumbrances, except as indicated in the schedule.
(j) The Predecessor Fund has qualified as a regulated investment company as defined in Subchapter M of the Code with respect to each taxable year since commencement of its operations and will qualify as a regulated investment company at all times through the Closing. As of the Closing, the Predecessor Fund will (i) have timely filed all federal and other tax returns and reports that have been required to be filed and all such returns and reports are true, accurate, and complete, (ii) have paid or provided for payment of all federal and other taxes required to be shown as due on such returns or on any assessments received, (iii) except as disclosed to the Successor Fund, not have had any tax
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deficiency or liability asserted against it or question with respect thereto raised, (iv) except as disclosed to the Successor Fund, not be under audit by the Internal Revenue Service or by any state or local tax authority for taxes in excess of those already paid, and (v) for all taxable years and all applicable quarters of the Predecessor Fund from the date of its inception, the assets of the Predecessor Fund have been sufficiently diversified that each segregated asset account investing all its assets in the Predecessor Fund was adequately diversified within the meaning of Section 817(h) of the Code and applicable regulations thereunder.
Section 4.2. The Successor Entity, on behalf of each Successor Fund, severally, but not jointly, represents and warrants to the Predecessor Entity and the corresponding Predecessor Fund as follows:
(a) The Successor Entity is a statutory trust duly organized, validly existing, and in good standing under the laws of the state of Delaware; has the power to carry on its business as it is now being conducted; and is registered under the 1940 Act as an open-end, management investment company. Each Successor Fund is a series of the Successor Entity.
(b) The Successor Entity has authorized capital of an unlimited number of shares of beneficial interest. All of the outstanding shares of beneficial interest have been duly authorized and are validly issued, fully paid, and non-assessable. Since the Successor Fund will be engaged in the continuous offering and redemption of its shares, the number of outstanding shares may vary daily.
(c) The financial statements of such Successor Fund as of the end of the last fiscal year, and the subsequent semi-annual financial statements, if any (the “Successor Fund Financial Statements”), fairly present the financial position of such Successor Fund, and the results of its operations and changes in its net assets for the periods shown.
(d) The Successor Entity has the power to enter into and to carry out its obligations under this Agreement. This Agreement and the transactions contemplated by it have been duly authorized by the Board of Trustees of the Successor Entity, the shareholders meetings referred to in Section 5.2 will be called and held, and no other proceedings by the Successor Entity or the Successor Fund are necessary under the Successor Entity’s Governing Documents.
(e) The Successor Entity is not in violation of its Certificate of Trust, Agreement and Declaration of Trust or Bylaws (the “Successor Entity’s Governing Documents”) or in default in the performance of any material agreement to which it is a party. The execution of this Agreement and the completion of the transactions contemplated by it will not conflict with, or constitute a breach of, any material contract or other instrument to which the Successor Fund is subject. The transactions will not result in any violation of the provisions of the Successor Entity’s Governing Documents or any law, administrative regulation, or administrative or court decree applicable to the Successor Fund.
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(f) There are no liabilities of the Successor Fund other than: (i) liabilities disclosed in the Successor Fund Financial Statements; (ii) liabilities incurred in the ordinary course of business subsequent to the date of the latest annual or semi-annual financial statements; and (iii) liabilities previously disclosed to the corresponding Predecessor Fund, none of which has been materially adverse to the business, assets, or results of operation of the Successor Fund.
(g) There is no litigation, administrative proceeding, or investigation before any court or governmental body currently pending or, to the knowledge of the Successor Entity, threatened, that would materially and adversely affect the Successor Fund, its financial condition, or the conduct of its business, or that would prevent or hinder completion of the transactions contemplated by this Agreement. The Successor Entity knows of no facts that might form the basis for the institution of any such litigation, proceeding, or investigation and the Successor Entity is not a party to or subject to the provisions of any order, decree, or judgment.
(h) Except for contracts and agreements previously disclosed to the Predecessor Entity, the Successor Entity and Successor Fund is not a party to or subject to any material contract, debt instrument, plan, lease, franchise, license, or permit.
(i) All securities listed in the schedules of investments of the Successor Fund as of the Closing will be owned by the Successor Fund free and clear of any encumbrances, except as indicated in the schedule.
(j) The shares of beneficial interest to be issued in connection with the Reorganization will be duly authorized and, at the time of the Closing, will be validly issued, fully paid and non-assessable.
(k) The Successor Fund has qualified as either a disregarded entity for federal income tax purposes or a partnership as defined in Subchapter K of the Code with respect to each taxable year since commencement of its operations, has not made and will not make an election to be treated as an association taxable as a corporation pursuant to Treasury Regulation Section 301.7701-3 (except as is contemplated in this Agreement), and will qualify either as a disregarded entity or as a partnership for federal income tax purposes at all times through the Closing. As of the Closing, the Successor Fund will (i) have timely filed all federal and other tax returns and reports that have been required to be filed and such returns and reports have been true, accurate, and complete, (ii) have paid or provided for payment of all federal and other taxes required to be shown as due on such returns or on any assessments received, (iii) except as disclosed to the Predecessor Fund, not have had any tax deficiency or liability asserted against it or question with respect thereto raised, (iv) except as disclosed to the Predecessor Fund, not be under audit by the Internal Revenue Service or by any state or local tax authority for taxes in excess of those already paid, and (v) for all taxable years and all applicable quarters of the Successor Fund from the date of its inception, the assets of the Successor Fund, if any, have been
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sufficiently diversified that each segregated asset account investing all its assets in the Successor Fund was adequately diversified within the meaning of Section 817(h) of the Code and applicable regulations thereunder.
SECTION 5. COVENANTS
The Predecessor Entity, on behalf of each Predecessor Fund, and the Successor Entity, on behalf of each Successor Fund, respectively, hereby further covenant severally, but not jointly, as follows:
Section 5.1. The Predecessor Fund will operate its business in the ordinary course and shall comply in all material respects with all applicable laws, rules and regulations between the date hereof and the applicable Closing Date, it being understood that such ordinary course of business will include the declaration and payment of customary dividends and other distributions and any other distribution that may be advisable.
Section 5.2. The Predecessor Entity will call a meeting of its shareholders to consider and act upon this Agreement and to take all other action necessary to obtain approval of the transactions contemplated herein. In addition, the Predecessor Entity will prepare, file with the Commission, and deliver to its shareholders in connection with such meeting a proxy statement on Schedule 14A (the “Proxy Statement”) in compliance in all material respects with the provisions of the Securities Exchange Act of 1934, as amended, and the 1940 Act and the rules and regulations thereunder.
Section 5.3. The Successor Fund Shares to be acquired by such Predecessor Fund hereunder are not being acquired for the purpose of making any distribution thereof, other than in accordance with the terms of this Agreement.
Section 5.4. The Predecessor Entity, on behalf of each Predecessor Fund, will assist the corresponding Successor Fund in obtaining such information as such Successor Fund reasonably requests concerning the beneficial ownership of the Predecessor Fund Shares of such Predecessor Fund.
Section 5.5. Subject to the provisions of this Agreement, the Successor Entity, on behalf of each Successor Fund, and the Predecessor Entity, on behalf of each corresponding Predecessor Fund, each will take, or cause to be taken, all actions, 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.
Section 5.6. The Successor Entity, on behalf of each Successor Fund, will provide to the corresponding Predecessor Fund such information regarding such Successor Fund as may be reasonably necessary for the preparation of the Proxy Statement.
Section 5.7. Each of the Successor Entity, on behalf of each Successor Fund, and the Predecessor Entity, on behalf of each corresponding Predecessor Fund, will 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.
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Section 5.8. The Predecessor Entity, on behalf of each Predecessor Fund, will, from time to time, as and when reasonably requested by the Successor Entity, execute and deliver or cause to be executed and delivered all such assignments and other instruments and will take or cause to be taken such further action as the Successor Entity, on behalf of the corresponding Successor Fund, may reasonably deem necessary or desirable in order to vest in and confirm: (i) the Predecessor Entity’s title to and possession of the Successor Fund Shares to be delivered hereunder; and (ii) the Successor Entity’s title to and possession of all the Assets and to otherwise carry out the intent and purpose of this Agreement.
Section 5.9. The Successor Entity, on behalf of each Successor Fund, will use all reasonable efforts to obtain the approvals and authorizations required by the 1940 Act and such of the state blue sky or securities laws as may be necessary in order to operate after the Closing Date.
SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PREDECESSOR FUND
The obligations of the Predecessor Entity, on behalf of each Predecessor Fund, to consummate the transactions provided for herein on the applicable Closing Date shall be subject, at the Predecessor Entity’s election, to the following conditions with respect to the applicable Predecessor Fund:
Section 6.1. All representations and warranties of the Successor Entity, on behalf of such Successor 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 applicable Closing Date, with the same force and effect as if made on and as of the applicable Closing Date.
Section 6.2. The Successor Entity, on behalf of such Successor 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 the Successor Entity, on behalf of such Successor Fund, on or before the applicable Closing Date.
Section 6.3. The Successor Entity shall have caused such Successor Fund to execute and deliver an assumption of the Liabilities of the corresponding Predecessor Fund and all such other agreements and instruments as the Predecessor Entity may reasonably deem necessary or desirable in order to vest in and confirm: (i) such Predecessor Fund’s title to and possession of the Successor Fund Shares to be delivered hereunder; and (ii) the Successor Fund’s assumption of all of the Liabilities.
Section 6.4. The Successor Entity, on behalf of such Successor Fund, shall have delivered to such Predecessor Fund a certificate executed in the name of the Successor Entity, on behalf of such Successor Fund, by an officer of the Successor Entity, in a form reasonably satisfactory to the Predecessor Entity and dated as of the applicable Closing Date, as to the matters set forth in Section 6.1 and Section 6.2 and as to such other matters as the Predecessor Entity shall reasonably request.
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Section 6.5. The Successor Entity, on behalf of such Successor Fund, and the Predecessor Entity, on behalf of the corresponding Predecessor Fund, shall have agreed on the number of full and fractional Successor Fund Shares to be issued by such Successor Fund in connection with the Reorganization after such number has been calculated in accordance with Section 1.1.
SECTION 7. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH SUCCESSOR FUND
The obligations of the Successor Entity, on behalf of each Successor Fund, to consummate the transactions provided for herein on the applicable Closing Date shall be subject, at the Successor Entity’s election, to the following conditions with respect to the applicable Successor Fund:
Section 7.1. All representations and warranties of the Predecessor Entity, on behalf of such Predecessor 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 applicable Closing Date, with the same force and effect as if made on and as of the applicable Closing Date.
Section 7.2. The Predecessor Entity, on behalf of such Predecessor 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 the Predecessor Entity, on behalf of such Predecessor Fund, on or before the applicable Closing Date.
Section 7.3. The Predecessor Entity shall have delivered to the Successor Entity, on behalf of such Successor Fund, a Statement of Assets and Liabilities of the corresponding Predecessor Fund as of the applicable Closing Date, including a schedule of investments, certified by the Treasurer of the Predecessor Entity on behalf of such Predecessor Fund. The Predecessor Entity, on behalf of such Predecessor Fund, shall have executed and delivered all such assignments and other instruments of transfer as the Successor Entity may reasonably deem necessary or desirable in order to vest in the Successor Fund and confirm: (i) the Predecessor Fund’s title to and possession of the Successor Fund Shares to be delivered hereunder; and (ii) the Successor Fund’s title to and possession of all the Assets.
Section 7.4. The Predecessor Entity, on behalf of such Predecessor Fund, shall have delivered to the Successor Entity a certificate executed in the name of the Predecessor Entity, on behalf of such Predecessor Fund, by an officer of the Predecessor Entity, in a form reasonably satisfactory to the Successor Entity and dated as of the Closing Date, as to the matters set forth in Section 7.1 and Section 7.2 and as to such other matters as the Successor Entity shall reasonably request.
Section 7.5. The Predecessor Entity, on behalf of such Predecessor Fund, and the Successor Entity, on behalf of the corresponding Successor Fund, shall have agreed on the number of full and fractional Successor Fund Shares to be issued by such Successor Fund in connection with the Reorganization after such number has been calculated in accordance with Section 1.1.
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| SECTION 8. | | FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH SUCCESSOR FUND AND EACH CORRESPONDING PREDECESSOR FUND |
If any of the conditions set forth below have not been satisfied on or before the Closing Date with respect to the Predecessor Entity, on behalf of each Predecessor Fund, or the Successor Entity, on behalf of the corresponding Successor Fund, the other party to this Agreement shall be entitled on behalf of the corresponding Predecessor Fund or Successor Fund, as applicable, at its option, to refuse to consummate the transactions contemplated by this Agreement with respect to the applicable Predecessor Fund and its corresponding Successor Fund:
Section 8.1. This Agreement and the transactions contemplated herein shall have been approved by the requisite vote of the holders of the outstanding shares of the Predecessor Entity in accordance with the provisions of the Articles of Incorporation, the bylaws of the Predecessor Entity, and Minnesota law, and certified copies of the resolutions evidencing such approval shall have been delivered to the Successor Entity. Notwithstanding anything herein to the contrary, neither the Successor Entity nor the Predecessor Entity may waive the condition set forth in this Section 8.1.
Section 8.2. On the applicable Closing Date, no court or governmental agency of competent jurisdiction shall have issued any order that remains in effect and that restrains or enjoins the Predecessor Entity, with respect to such Predecessor Fund, or the Successor Entity, with respect to such Successor Fund, from completing the transactions contemplated by this Agreement.
Section 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 Successor Entity or the Predecessor Entity to permit consummation, in all material respects, of the transactions contemplated with respect to such Successor Fund or corresponding Predecessor Fund 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 such Successor Fund or such Predecessor Fund, provided that either party hereto may for itself waive any of such conditions.
Section 8.4. The registration statement of the Predecessor Entity under the Securities Act of 1933 (the “1933 Act”) and the 1940 Act with respect to each Predecessor Fund shall have been amended to reflect the Reorganization and any additional information necessary to comply with Rule 414(d) under the 1933 Act, and the Successor Entity shall have expressly adopted such amended registration statement with respect to the corresponding Successor Fund for purposes of the 1933 Act and the 1940 Act. In addition, the 1940 Act notification of registration of the Predecessor Entity shall have been amended to reflect the Reorganization, and the Successor Entity shall have expressly adopted such amended notification for purposes of the 1940 Act. No stop order suspending the effectiveness of such registration statement 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.
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Section 8.5. The Predecessor Entity, on behalf of each Predecessor Fund, shall have received an opinion of Dorsey & Whitney LLP (or such other law firm as the Predecessor Entity may select), dated as of the Closing Date, in a form reasonably satisfactory to the Predecessor Entity, substantially to the effect that, based upon certain facts and certifications made by the Successor Entity, on behalf of the corresponding Successor Fund and its authorized officers: (a) each Successor Fund is a series of the Successor Entity, a statutory trust validly existing under the laws of the State of Delaware; and (b) the Successor Fund Shares to be issued and delivered by the Successor Entity in exchange for the Assets of the corresponding Predecessor Funds pursuant to this Agreement will be, when so issued and delivered, duly authorized, legally issued and outstanding, fully paid and non-assessable. Such opinion may contain such assumptions and limitations as shall be in the opinion of Dorsey & Whitney LLP appropriate to render the opinions expressed therein.
Section 8.6. The Predecessor Entity and the Successor Entity shall have received the opinion of Dorsey & Whitney LLP (or such other law firm as the Predecessor Entity may select), dated as of the Closing Date, substantially to the effect that, for federal income tax purposes:
A) Each Successor Fund that does not make an election to be treated as a regulated investment company under Subchapter M of the Code will be treated from and after the Closing Date either as a partnership as defined in Subchapter K of the Code and Treasury Regulation Section 301.7701-3(b)(i) if it has more than one shareholder, or as a disregarded entity as defined in Treasury Regulation Section 301.7701-3(b)(ii) if it has only one shareholder, and therefore will not generally be subject to federal income tax at the entity level, provided that (i) the Successor Fund will not at any time constitute a “publicly traded partnership” within the meaning of Section 7704(b) of the Code and (ii) the Successor Entity, on behalf of the Successor Fund, has not made and will not at any time make an election with respect to the Successor Fund to be treated as an association taxable as a corporation pursuant to Treasury Regulation Section 301.7701-3.
B) With respect to each Predecessor Fund and its corresponding Successor Fund where the Successor Fund is treated as a partnership for federal income tax purposes following the Reorganization and does not make an election to be treated as a regulated investment company under Subchapter M of the Code:
1. The Reorganization will be treated as a distribution of all the assets and liabilities of the Predecessor Fund to the Predecessor Fund Shareholders that qualifies as a “complete liquidation” within the meaning of Section 332 of the Code (in each instance, a “Liquidation”), followed by a contribution by the Predecessor Fund Shareholders of the assets of the Predecessor Fund to the corresponding Successor Fund in exchange for Successor Fund Shares that qualifies as a tax-free contribution of property to a partnership under Section 721 of the Code (in each instance, a “Contribution”).
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2. The Predecessor Fund will not recognize gain or loss on the deemed distribution of its assets to the Majority Shareholder (as defined below)its shareholder Minnesota Life Insurance Company, a Minnesota corporation (the “Majority Shareholder”) by reason of the Liquidation.
3. The Predecessor Fund will recognize gain, but not loss, to the extent of the deemed distribution of its assets to the Minority Shareholder (as defined below)its shareholder Securian Life Insurance Company, a Minnesota corporation (the “Minority Shareholder”) by reason of the Liquidation as if such assets were sold to the Minority Shareholder at their fair market value. This gain will be capital gain, assuming the assets were held as capital assets within the meaning of Section 1221 of the Code.
4. The deemed distribution of assets to the Minority Shareholder in the Liquidation will be treated as a dividend for purposes of computing the deduction for dividends paid (as defined in Section 561 of the Code) allowable to the Predecessor Fund pursuant to Sections 562(b) and 852(b) of the Code, assuming that the Predecessor Fund satisfies all
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other requirements for the deduction for dividends paid. Accordingly, the deduction for dividends paid, to the extent allowable, will offset gain recognized by the Predecessor Fund as described in paragraph 3, with the result that the Predecessor Fund will not incur tax liability as a result of such gain recognition.
5. The Predecessor Fund Shareholders will not recognize gain or loss on the deemed receipt of the assets of the Predecessor Fund by reason of the Liquidation, except for an amount equal to the deduction for dividends paid allowable to the Predecessor Fund by reason of the deemed distribution, which amount the Predecessor Fund Shareholders will be required to recognize and treat as a dividend from the Predecessor Fund.
6. Neither the Predecessor Fund Shareholders nor the Successor Fund will recognize gain or loss by reason of the Contribution.
7. The adjusted tax basis of the assets received by the Successor Fund in the Reorganization will equal the adjusted tax basis of those assets in the hands of the corresponding Predecessor Fund immediately prior to the Reorganization.
8. The holding period of each asset received by the Successor Fund in the Reorganization will include the period during which each asset was held by the corresponding Predecessor Fund, assuming that such assets were held as capital assets immediately prior to the transfer thereof.
9. The adjusted tax basis of the Successor Fund Shares received by the Predecessor Fund Shareholders will equal the adjusted tax basis of the Predecessor Fund immediately prior to the Reorganization in the assets contributed in exchange therefor to the corresponding Successor Fund.
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10. The holding period of the Successor Fund Shares received by the Predecessor Fund Shareholders will include the period during which the assets of the Predecessor Fund contributed in exchange therefor were held by the Predecessor Fund, determined in accordance with the rules set forth in Treasury Regulation Section 1.1223-3 related to a divided holding period, assuming that the Predecessor Fund Shareholder held the Predecessor Fund Shares as capital assets.
11. The Predecessor Fund Shareholders will succeed to and take into account the items of the Predecessor Fund described in Section 381(c) of the Code in accordance with and subject to the conditions and limitations specified in Treasury Regulation Section 1.1502-80(g) and Sections 381 through 384 of the Code and the Treasury Regulations thereunder.
12.C) With respect to each Predecessor Fund and its corresponding Successor Fund where the Successor Fund is treated as a disregarded entity for federal income tax purposes following the Reorganization and does not make an election to be treated as a regulated investment company under Subchapter M of the Code:
1. The Successor FundReorganization will be treated fromas a distribution of all the assets and after the Closing Date as either a disregarded entity as defined in Treasury Regulation Section 301.7701-3(b)(ii) or a partnership as defined in Subchapter Kliabilities of the Code and Treasury RegulationPredecessor Fund to the Predecessor Fund Shareholder that qualifies as a “complete liquidation” within the meaning of Section 301.7701-3(b)(i), and therefore not generally subject to federal income tax at332 of the entity level, provided thatCode.
B-16 2. The Predecessor Fund will not recognize gain or loss on the deemed distribution of its assets to the Predecessor Fund Shareholder by reason of the Liquidation.
3. The Predecessor Fund Shareholder will not recognize gain or loss on the deemed receipt of the assets of the Predecessor Fund by reason of the Liquidation, except for an amount, if any, equal to the deduction for dividends paid allowable to the Predecessor Fund by reason of the deemed distribution, which amount the Predecessor Fund Shareholder will be required to recognize and treat as a dividend from the Predecessor Fund.
4. The adjusted tax basis of the assets deemed received by the Predecessor Fund Shareholder from the Predecessor Fund in the Reorganization will equal the adjusted tax basis of those assets in the hands of the Predecessor Fund immediately prior to the Reorganization.
5. The holding period of each asset deemed received by the Predecessor Fund Shareholder from the Predecessor Fund in the Reorganization will include the period during which each asset was held by the Predecessor Fund, assuming that such assets were held as capital assets immediately prior to the transfer thereof.
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(i) 6. The Predecessor Fund Shareholder will succeed to and take into account the Successoritems of the Predecessor Fund will not at any time constitute a “publicly traded partnership” withindescribed in Section 381(c) of the meaning of Section 7704(b)Code in accordance with and subject to the conditions and limitations specified in Sections 381 through 384 of the Code and (ii) the Treasury Regulations thereunder.
7. The transfer by the Predecessor Fund of shares of the corresponding Successor Entity, on behalf ofFund to the Predecessor Fund Shareholder will be disregarded for federal income tax purposes, and no gain or loss will be recognized by the Predecessor Fund, the Successor Fund has not made and will not make an electionor the Predecessor Fund Shareholder with respect to the Successor Fund to be treated as an association taxable as a corporation pursuant to Treasury Regulation Section 301.7701-3.such transfer.
B)D) With respect to each Predecessor Fund and its corresponding Successor Fund where the Successor Fund makes a proper and timely election to be treated as a regulated investment company under Subchapter M of the Code:
1. The Reorganization will constitute a “reorganization” within the meaning of Section 368(a)(1) of the Code, and the Predecessor Fund and its corresponding Successor Fund will each be a “party to a reorganization” within the meaning of Section 368(b) of the Code.
2. The Predecessor Fund will recognize no income, gain or loss by reason of the Reorganization.
3. The Successor Fund will recognize no income, gain or loss by reason of the Reorganization.
4. The basis in the hands of the Successor Fund of the assets of the corresponding Predecessor Fund will be the same as the basis of the assets in the hands of the Predecessor Fund immediately prior to the transfer thereof.
5. The holding periods of the assets received by the Successor Fund will include in each instance the period during which the assets were held by the Predecessor Fund, assuming that such assets were held as capital assets immediately prior to the transfer thereof.
6. No gain or loss will be recognized by the Predecessor Fund Shareholders upon the exchange of all their Predecessor Fund Shares solely for Successor Fund Shares as part of the Reorganization.
7. The aggregate basis of the Successor Fund Shares that each Predecessor Fund Shareholder receives in the Reorganization will be the same as the aggregate basis of the Predecessor Fund Shares exchanged therefor.
8. The holding period of the Successor Fund Shares received by each Predecessor Fund Shareholder will include the period during which each Predecessor Fund Shareholder held the Predecessor Fund Shares exchanged therefor, assuming that the Predecessor Fund Shareholder held the Predecessor Fund Shares as capital assets.
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9. The Successor Fund will succeed to and take into account the items of the corresponding Predecessor Fund described in Section 381(c) of the Code, subject to the conditions and limitations specified in Sections 381 through 384 of the Code and the Treasury Regulations thereunder.
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10. The Successor Fund will be treated from and after the Closing Date as a regulated investment company as defined in Subchapter M of the Code, provided that the Successor Entity, on behalf of the Successor Fund, (i) has made or will make a proper and timely election, effective as of the Closing Date, to be treated as an association taxable as a corporation pursuant to Treasury Regulation Section 301.7701-3 and (ii) has satisfied all other requirements (in addition to making a timely and proper election to be a regulated investment company) to be treated as a regulated investment company as defined in Subchapter M of the Code.
For purposes of the foregoing, “Majority Shareholder” means: Minnesota Life Insurance Company, a Minnesota corporation, and “Minority Shareholder” means Securian Life Insurance Company, a Minnesota corporation. The foregoing will assume that the Majority Shareholder owns, and will own at all times through the Closing, stock of each Predecessor Fund that possesses at least 80% of the total voting power and at least 80% of the total value of the stock of each Predecessor Fund, and that the Minority Shareholder owns and will own at all times through the Closing all remaining shares of the stock of each Predecessor Fund. Such opinion may also contain such other assumptions, qualifications, and limitations as shall be in the opinion of Dorsey & Whitney LLP appropriate to render the opinions expressed therein. The delivery of such opinion is conditioned upon receipt by Dorsey & Whitney LLP of representations it shall request of the Successor Entity and the Predecessor Entity. Notwithstanding anything herein to the contrary, neither the Successor Entity nor the Predecessor Entity may waive the condition set forth in this Section 8.6.
Section 8.7. The Predecessor Entity and the Successor Entity shall have received the opinion of Sutherland Asbill & Brennan LLP, dated as of the Closing Date, substantially to the effect that the Reorganization will not result in any adverse federal income tax consequences to owners of the variable annuity and variable life insurance contracts that invest in the Predecessor Funds, irrespective of whether a particular Successor Fund is treated as a partnership, as a disregarded entity or as a RIC for federal tax purposes. Such opinion may contain such assumptions, qualifications, and limitations as shall be, in the opinion of Sutherland Asbill & Brennan LLP, appropriate to render the opinions expressed therein. The delivery of such opinion is conditioned upon receipt by Sutherland Asbill & Brennan LLP of representations it shall request of the Successor Entity, the Predecessor Entity, and the Predecessor Fund Shareholders. Notwithstanding anything herein to the contrary, neither the Successor Entity nor the Predecessor Entity may waive the condition set forth in this Section 8.8.
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SECTION 9. INDEMNIFICATION
The Successor Entity, out of each Successor Fund’s assets and property (including any amounts paid to the Successor Fund pursuant to any applicable liability insurance policies or indemnification agreements), agrees to indemnify and hold harmless the Predecessor Entity and its Directors and officers from and against any and all losses, claims, damages, liabilities or expenses (including, without limitation, the payment of reasonable legal fees and reasonable costs of investigation) to which the corresponding Predecessor 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 act, error, omission, neglect, misstatement, materially misleading statement, breach of duty or other act wrongfully done or attempted to be committed by the Successor Entity or Trustees or officers prior to the Closing Date, provided that such indemnification by the Successor Entity is not: (i) in violation of applicable law; or (ii) otherwise prohibited as a result of any applicable order or decree issued by any governing regulatory authority or court of competent jurisdiction.
SECTION 10. BROKERAGE FEES AND EXPENSES
Section 10.1. The Successor Entity, on behalf of each Successor Fund, and the Predecessor Entity, on behalf of each Predecessor Fund, 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.
SECTION 11. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
Section 11.1. The Successor Entity and the Predecessor Entity agree that neither party has made any representation, warranty or covenant, on behalf of either a Successor Fund or a Predecessor Fund, respectively, not set forth herein and that this Agreement constitutes the entire agreement between the parties.
Section 11.2. The covenants to be performed after the Closing by both the Successor Entity and the Predecessor Entity, and the obligations of the Successor Entity, on behalf of each Successor Fund, in Section 8.6,9, shall survive the Closing. All other representations, warranties and covenants contained in this Agreement or in any document delivered pursuant hereto or in connection herewith shall not survive the consummation of the transactions contemplated hereunder and shall terminate on the Closing.
SECTION 12. TERMINATION
This Agreement may be terminated and the transactions contemplated hereby may be abandoned with respect to any Successor Fund or Predecessor Fund at any time prior to the Effective Time (whether before or after approval of the shareholders of the Predecessor Funds) with respect to the applicable Reorganization by resolution of the Successor Entity Board or the Predecessor Entity Board, as applicable, if circumstances should develop that, in the opinion of that Board, make proceeding with the Agreement inadvisable with respect to such Successor Fund or such Predecessor Fund, respectively. The termination of this Agreement with respect to a Predecessor
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Fund or its corresponding Successor Fund shall not affect the continued effectiveness of this Agreement with respect to any other Predecessor Fund or Successor Fund, nor shall it affect the rights and obligations of any party in respect of any breach of this Agreement occurring prior to such termination.
In the event of termination, there shall be no liability for damages on the part of either the Predecessor Entity or Successor Entity (other than any agreement between the parties to pay expenses) or any Director, Trustee or officers of the Predecessor Entity or Successor Entity.
SECTION 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 Predecessor Entity and the Successor Entity; provided, however, that following the meeting of the Predecessor Fund Shareholders called by the Predecessor Fund pursuant to Section 5.2 of this Agreement, no such amendment may have the effect of changing the provisions for determining the number of Successor Fund Shares to be issued to Predecessor Fund Shareholders under this Agreement to the detriment of such shareholders without their further approval and the further approval of the Board of Directors of the Predecessor Entity and the Board of Trustees of the Successor Entity (including the determination required by Rule 17a-8(a) under the 1940 Act), and provided further that nothing contained in this Section 13 shall be construed as requiring additional approval to amend this Agreement to change the Closing Date or the Effective Time.
SECTION 14. 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, electronic delivery (i.e., e-mail) personal service or prepaid or certified mail addressed to the Successor Entity or the Predecessor Entity, at its address set forth in the preamble to this Agreement, in each case to the attention of its President.
| SECTION 15. | | HEADINGS; COUNTERPARTS; GOVERNING LAW; SEVERABILITY; ASSIGNMENT; LIMITATION OF LIABILITY |
Section 15.1. The Article and Section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
Section 15.2. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original.
Section 15.3. This Agreement shall be governed by and construed and interpreted in accordance with the internal laws of the State of Delaware.
Section 15.4. 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
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written consent of the other parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give any person, firm or corporation, other than the parties hereto and their respective successors and assigns, any rights or remedies under or by reason of this Agreement.
Section 15.5. The warranties, representations and agreements contained in this Agreement made by the Predecessor Entity, on behalf of each of the Predecessor Funds, are made on a several (and not joint, or joint and several) basis. Similarly, the warranties, representations and agreements contained in this Agreement made by the Successor Entity, on behalf of each of the Successor Funds, are made on a several (and not joint, or joint and several) basis.
[Remainder of Page Intentionally Left Blank; Signature Page Follows.]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed by its duly authorized officer.
| | SECURIAN FUNDS TRUST, | |
| | on behalf of each of its series listed in | |
| | Exhibit A attached hereto | |
| | | | |
| | By: | | |
| | Name: | | |
| | Title: | | |
| | | | |
| | | �� | |
| | ADVANTUS SERIES FUND, INC., | |
| | on behalf of each of its series listed in | |
| | Exhibit A attached hereto | |
| | | | |
| | By: | | |
| | Name: | | |
| | Title: | | |
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EXHIBIT A
to the Agreement and Plan of Reorganization
| Predecessor Fund | Corresponding Successor Fund |
| Bond Portfolio | Bond Portfolio |
| Index 400 Mid-Cap Portfolio | Index 400 Mid-Cap Portfolio |
| Index 500 Portfolio | Index 500 Portfolio |
| International Bond Portfolio | International Bond Portfolio |
| Money Market Portfolio | Money Market Portfolio |
| Mortgage Securities Portfolio | Mortgage Securities Portfolio |
| Real Estate Securities Portfolio | Real Estate Securities Portfolio |
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EXHIBIT C
COMPARISON OF THE COMPANY AND THE TRUST
Shareholder Liability
Company.Under the Minnesota Business Corporation Act (the “MBCA”), shareholders of a corporation generally have no obligation to the corporation or its creditors with respect to shares owned, except to pay to the corporation the full consideration for which the shares are issued.
Trust. Under the Delaware Statutory Trust Act (the “DSTA”), shareholders of a Delaware statutory trust are entitled to the same limitation of personal liability extended to stockholders of a Delaware corporation. As such, shareholders of a Delaware statutory trust generally have no obligation to the corporation or its creditors with respect to shares owned, except to pay to the corporation the full consideration for which the shares are issued. Moreover, the Declaration of Trust provides for indemnification of a shareholder of the Trust for any liability or obligation of the Trust by reason of being or having been a shareholder of the Trust.
Liability of Directors/Trustees
Company. The Company’s articles of incorporation provide that to the fullest extent permitted by the MBCA, except as prohibited by the 1940 Act, a director of the Company shall not be liable to the Company or its shareholders for monetary damages for breach of fiduciary duty as a director.
The MBCA provides that, in general, a provision in a corporation’s articles of incorporation eliminating or limiting director liability is effective, except that it does not eliminate or limit a director’s liability for: (i) any breach of the director’s duty of loyalty to the corporation or its shareholders; (ii) acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; (iii) illegal distributions with respect to the corporation’s shares, or sales of securities in violation of Minnesota securities laws; or (iv) transactions from which the director derived an improper personal benefit.
However, a director would still be liable under the 1940 Act for: (i) willful misfeasance; (ii) bad faith; (iii) gross negligence; or (iv) reckless disregard of the duties involved in the conduct of the office.
Trust. Under the DSTA, subject to certain exceptions and applicable federal law, Article VII, Section 9.5 of the Declaration of Trust generally provides that Trustees, officers, employees and agents of the Trust shall be indemnified by the Trust or applicable series to the fullest extent permitted by law against liability and against all expenses incurred or paid by such party in connection with any action, suit or other proceeding in which they become a party or otherwise by virtue of being or having been a Trustee, officer, employee or agent. Accordingly, a Trustee is not entitled
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to indemnification if such Trustee acts with: (i) willful misfeasance; (ii) bad faith; (iii) gross negligence; or (iv) reckless disregard of the duties involved in the conduct of the office.
Rights of Inspection
Company. The MBCA requires the Company to maintain certain corporate records and documents, including records of board of directors and shareholder meetings, the Company’s articles of incorporation and bylaws, certain financial statements, reports to shareholders, and a share register. The MBCA also provides that a shareholder or beneficial owner of shares of the Company has, upon written demand stating the purpose, a right at any reasonable time to examine and copy the share register and other corporate records reasonably related to the stated purpose and described with reasonable particularity in the written demand upon demonstrating the stated purpose to be a proper purpose. A “proper purpose” is deemed to be one reasonably related to the person’s interest as a shareholder or beneficial owner. The written demand must be acknowledged or verified in a specified manner, and be directed to the Company at its registered office in Minnesota or at its principal place of business.
Trust. Except to the extent otherwise required by law or by resolution of the shareholders of the Trust, the shareholders of the Trust shall only have such right to inspect the records, documents, accounts and books of the Trust or any Series or class thereof as may be granted from time to time by the Trustees.
Shareholder Meetings
Neither the Trust nor the Company is required to hold annual meetings, although each may hold special meetings. With respect to matters submitted to shareholders, in the case of the Company, all shares entitled to vote are voted in the aggregate, except (1) when otherwise required by the Minnesota Statues, Chapter 302, in which case shares will be voted by individual series or class, as applicable; (ii) when otherwise required by the 1940 Act, or the rules adopted thereunder, in which case shares shall be voted by individual series or class, as applicable, and (iii) when the matter does not affect the interests of a particular series or class, in which case only shareholders of the series or class affected shall be entitled to vote thereon and shall vote by individual series or class, as applicable.
With respect to the Trust, shareholders shall not have the power to vote on any matter except (i) for the election or removal of Trustees to the extent and as provided in Article V of the Declaration of Trust, and (ii) with respect to such additional matters relating to the Trust as may be required by law or as the Trustees may consider and determine necessary or desirable. With respect to matters submitted to the shareholders, all shares of all series or classes shall be voted together except that (i) when required by the 1940 Act to be voted by individual series or class, shares shall be voted by individual series or class and (ii) when the trustees have determined that the matter affects only the interests of shareholders of one or more series or classes, only shareholders of such one or more series or classes shall be entitled to vote thereon.
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Company. Under the MBCA, if a regular meeting of the corporation’s shareholders has not been held during the immediately preceding 15 months, a shareholder or shareholders holding 3% or more of the voting power of all shares entitled to vote may demand a regular meeting of shareholders by written notice of demand given to the chief executive officer or chief financial officer of the corporation.
In addition, under the MBCA, a special meeting of shareholders may be called for any purpose at any time by, among others, the corporation’s chief executive officer; by two or more directors; or by a shareholder or shareholders holding 10% or more of the voting power of all shares entitled to vote on the matter to be presented to the meeting, except that a special meeting for the purpose of considering any action to facilitate or effect a business combination must be called by 25% or more of such voting power.
Trust. Article II, Section 2 of the Bylaws of the Trust permits the shareholders representing ten percent or more of the outstanding shares to call a meeting to vote on matters specified in the notice of such meeting; provided, that: (i) such notice shall state the purposes of such meeting and the matters proposed to be acted on; and (ii) the place, date and hour of the meeting.
Reorganization/Combination Transactions/Dissolutions
Company. Under the MBCA, in general, a plan of merger or exchange must be approved by the board of directors and, with certain exceptions, by the affirmative vote of the holders of a majority of the voting power of the shares entitled to vote.
Under the MBCA, in general, a sale, lease, transfer or other disposition of all or substantially all of a corporation’s property and assets, not in the usual and regular course of its business, must be approved by the board of directors and, unless the corporation retains a significant continuing business activity after the transaction, by the affirmative vote of the holders of a majority of the voting power of the shares entitled to vote.
Under the MBCA, in general, dissolution of a corporation requires the affirmative vote of a majority of the voting power of all shares entitled to vote.
Trust. Under the Declaration of Trust, the Trustees may generally authorize mergers, consolidations, share exchanges and reorganizations of a series or the Trust with another trust, series or other business organization without shareholder approval, although such approval may be separately required under applicable federal laws.
Dissenters’ Rights
Company. Under the MBCA, shareholders of a corporation which engages in certain merger, exchange, or sale-of-assets transactions, who comply with the applicable statutory procedures, will be entitled to receive a judicial determination of the fair value of their shares and to receive payment of such statutory value in cash, together with a statutory rate of interest thereon. Any such judicial determination of the fair value of the shares could be based upon factors other than, or in addition to, the price per share to be paid in the transaction or the market value of the shares. The value so determined could be more or less than, or the same as, the price per share to be paid in
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the transaction. The staff of the SEC has taken the position that federal law pre-empts such statutory rights of appraisal in the case of certain transactions to which an open-end investment company is a party. In this regard, notwithstanding the provisions of Minnesota law, the SEC has taken the position that use of state appraisal procedures by a mutual fund would be in violation of Rule 22c-1, the forward pricing rule, under the 1940 Act. This rule states that no mutual fund may redeem its shares other than at net asset value next computed after receipt of a request for redemption. It is the SEC’s position that Rule 22c-1 supersedes appraisal provisions in state statutes.
Trust. Under the Declaration of Trust, there are no dissenters’ rights provided.
Amendment of Charter Documents
Company. Under the MBCA, an amendment to the Company’s articles of incorporation may be proposed by the board of directors or by a shareholder or shareholders holding 3% or more of the voting power of the shares entitled to vote. Subject to certain exceptions, amendments must generally be approved by shareholders by the greater of (i) a majority of the voting power of the shares present and entitled to vote, or (ii) a majority of the voting power of the minimum number of shares entitled to vote that would constitute a quorum for the transaction of business at the shareholder meeting. In certain instances, shareholders are entitled to vote on an amendment by separate series or class.
Trust. Article VI, Section 6.1 of the Declaration of Trust grants the Trustees exclusive and broad control of trust property. Article VIII, Section 3 of the Declaration of Trust grants the Trustees the authority to amend or supplement the Declaration of Trust with a vote of a majority of the Trustees then in office, except with respect to (i) any right of the shareholders to vote granted in Article V, Section 1 of the Declaration of Trust, (ii) any amendment to Article VIII, Section 3 of the Declaration of Trust, (iii) any amendment that may require the vote of the shareholders under applicable law or by the Trust’s registration statement, or (iv) any amendment submitted to the shareholders for their vote by the Trustees.
Without limiting such provision, in no event, however, will any amendment, modification or change to the Declaration of Trust or Bylaws adversely affect the indemnification provisions provided in the Declaration of Trust to shareholders, Trustees or other Covered Persons (as defined in the Declaration of Trust) or any insurance payments under policies maintained by the Trust or series in either case with respect to any act or omission of such person that occurred or is alleged to have occurred prior to the time of such amendment, modification or change to the Declaration of Trust or Bylaws.
C-4
EVERY CONTRACT OWNER'S VOTE IS IMPORTANT
ADVANTUS SERIES FUND, INC.
SPECIAL MEETING OF SHAREHOLDERS TO BE HELD ON OCTOBER 21, 2011
Minnesota Life Insurance Company (“Minnesota Life”) is soliciting these voting instructions from owners of variable life insurance policies and variable annuity contracts issued by Minnesota Life who, by virtue of such policies and contracts, indirectly participate in the fund named above (the “Fund”), a series of Advantus Series Fund, Inc. (the “Company”). These voting instructions are for the Company’s Special Meeting of Shareholders to be held on October 21, 2011, and any adjournment thereof.
Please check in the appropriate boxes on the reverse side of this card, date this form, and sign it exactly as your name appears below. By signing this form, you acknowledge receipt of the Notice of Special Meeting and Proxy Statement dated September 8, 2011. As legal owner of the shares, Minnesota Life will vote the shares in accordance with these instructions at the Special Meeting or any adjournment thereof.
THE UNDERSIGNED HEREBY INSTRUCTS MINNESOTA LIFE TO VOTE AS INDICATED ON THE REVERSE SIDE. IF YOU DO NOT INDICATE A CHOICE, YOUR RETURN OF THE SIGNED FORM SHALL BE CONSIDERED AS INSTRUCTIONS TO VOTE FOR APPROVAL OF ALL THE PROPOSALS.
If any other matter properly comes before the Special Meeting, Minnesota Life will vote in accordance with its best judgment.
| | | Note: Please sign exactly as your name appears on this voting instruction card. When shares are held by joint tenants, at least one holder should sign. When signing in a fiduciary capacity, such as executor, administrator, trustee, attorney, guardian, etc., please so indicate. Corporate and partnership voting instruction cards should be signed by an authorized person indicating the person’s title. |
| | | |
| | | Signature(s) |
| | | |
| | | Title(s), if applicable |
| | | |
| | | Date |
PLEASE VOTE, SIGN AND DATE THIS VOTING INSTRUCTION CARD AND RETURN IT IN THE POSTAGE PAID ENVELOPE PROVIDED.
YOUR VOTING INSTRUCTIONS ARE IMPORTANT REGARDLESS OF THE EXTENT OF YOUR INDIRECT INTEREST IN THE FUND. THE MATTERS WE ARE SUBMITTING FOR YOUR CONSIDERATION ARE SIGNIFICANT TO THE FUND(S) AND TO YOU AS A CONTRACT OWNER. PLEASE TAKE THE TIME TO READ THE PROXY STATEMENT AND CAST YOUR VOTE AS DESCRIBED BELOW.
You can find the proxy statement online at http://www.AdvantusSeriesFund.com, by selecting the tab labeled “Advantus Series Fund documents.”
VOTING INSTRUCTION CARD
(“FUND NAME”)
WHEN THIS VOTING INSTRUCTION CARD IS PROPERLY EXECUTED, THE SHARES REPRESENTED HEREBY WILL BE VOTED AS SPECIFIED. IF NO SPECIFICATION IS MADE, THIS VOTING INSTRUCTION CARD WILL BE VOTED FOR EACH PROPOSAL SET FORTH BELOW AND IN THE DISCRETION OF MINNESOTA LIFE WITH RESPECT TO ALL OTHER MATTERS WHICH MAY PROPERLY COME BEFORE THE SPECIAL MEETING AND ANY ADJOURNMENTS OR POSTPONEMENTS THEREOF. THE UNDERSIGNED ACKNOWLEDGES RECEIPT OF THE ACCOMPANYING NOTICE OF SPECIAL MEETING AND PROXY STATEMENT.
PLEASE MARK BOX IN BLUE OR BLACK INK AS FOLLOWS. Example: [ X ]
THE BOARD OF DIRECTORS OF THE COMPANY RECOMMENDS A VOTE FOR THE FOLLOWING PROPOSALS:
| | 1. | | To elect four Directors to the Board of Directors: | | | |
| | | | | | | |
| | Independent Directors | FOR | WITHHOLD | |
| | | | | | | |
| | a. | | Linda L. Henderson | ¨ | ¨ | |
| | | | | | | |
| | b. | | William C. Melton | ¨ | ¨ | |
| | | | | | | |
| | c. | | Julie K. Getchell | ¨ | ¨ | |
| | | | | | | |
| | | | | |
| | Interested Director | | | |
| | | | | | | |
| | e. | | Gregory S. Strong | ¨ | ¨ | |
| | | | | | | |
| | | | | FOR | AGAINST | ABSTAIN |
| | | | | | | |
| | 2. | | To approve the proposed Agreement and Plan of Reorganization pursuant to which each Fund of Advantus Series Fund, Inc. would be reorganized as separate series of Securian Funds Trust, a newly-formed Delaware statutory trust, and to which the Funds and the Company will be liquidated and dissolved. | ¨ | ¨ | ¨ |
As to any other matter, Minnesota Life shall vote in accordance with its discretion.
PLEASE VOTE, SIGN AND DATE THIS VOTING INSTRUCTION CARD AND RETURN IT IN THE POSTAGE PAID ENVELOPE PROVIDED.
EVERY CONTRACT OWNER'S VOTE IS IMPORTANT
ADVANTUS SERIES FUND, INC.
SPECIAL MEETING OF SHAREHOLDERS TO BE HELD ON OCTOBER 21, 2011
Securian Life Insurance Company (“Securian Life”) is soliciting these voting instructions from owners of variable life insurance policies issued by Securian Life who, by virtue of such policies, indirectly participate in the fund named above (the “Fund”), a series of Advantus Series Fund, Inc. (the “Company”). These voting instructions are for the Company’s Special Meeting of Shareholders to be held on October 21, 2011, and any adjournment thereof.
Please check in the appropriate boxes on the reverse side of this card, date this form, and sign it exactly as your name appears below. By signing this form, you acknowledge receipt of the Notice of Special Meeting and Proxy Statement dated September 8, 2011. As legal owner of the shares, Securian Life will vote the shares in accordance with these instructions at the Special Meeting or any adjournment thereof.
THE UNDERSIGNED HEREBY INSTRUCTS SECURIAN LIFE TO VOTE AS INDICATED ON THE REVERSE SIDE. IF YOU DO NOT INDICATE A CHOICE, YOUR RETURN OF THE SIGNED FORM SHALL BE CONSIDERED AS INSTRUCTIONS TO VOTE FOR APPROVAL OF ALL THE PROPOSALS.
If any other matter properly comes before the Special Meeting, Securian Life will vote in accordance with its best judgment.
| | | Note: Please sign exactly as your name appears on this voting instruction card. When shares are held by joint tenants, at least one holder should sign. When signing in a fiduciary capacity, such as executor, administrator, trustee, attorney, guardian, etc., please so indicate. Corporate and partnership voting instruction cards should be signed by an authorized person indicating the person’s title. |
| | | |
| | | Signature(s) |
| | | |
| | | Title(s), if applicable |
| | | |
| | | Date |
PLEASE VOTE, SIGN AND DATE THIS VOTING INSTRUCTION CARD AND RETURN IT IN THE POSTAGE PAID ENVELOPE PROVIDED.
YOUR VOTING INSTRUCTIONS ARE IMPORTANT REGARDLESS OF THE EXTENT OF YOUR INDIRECT INTEREST IN THE FUND. THE MATTERS WE ARE SUBMITTING FOR YOUR CONSIDERATION ARE SIGNIFICANT TO THE FUND(S) AND TO YOU AS A CONTRACT OWNER. PLEASE TAKE THE TIME TO READ THE PROXY STATEMENT AND CAST YOUR VOTE AS DESCRIBED BELOW.
You can find the proxy statement online at http://www.AdvantusSeriesFund.com, by selecting the tab labeled “Advantus Series Fund documents.”
VOTING INSTRUCTION CARD
(“FUND NAME”)
WHEN THIS VOTING INSTRUCTION CARD IS PROPERLY EXECUTED, THE SHARES REPRESENTED HEREBY WILL BE VOTED AS SPECIFIED. IF NO SPECIFICATION IS MADE, THIS VOTING INSTRUCTION CARD WILL BE VOTED FOR EACH PROPOSAL SET FORTH BELOW AND IN THE DISCRETION OF SECURIAN LIFE WITH RESPECT TO ALL OTHER MATTERS WHICH MAY PROPERLY COME BEFORE THE SPECIAL MEETING AND ANY ADJOURNMENTS OR POSTPONEMENTS THEREOF. THE UNDERSIGNED ACKNOWLEDGES RECEIPT OF THE ACCOMPANYING NOTICE OF SPECIAL MEETING AND PROXY STATEMENT.
PLEASE MARK BOX IN BLUE OR BLACK INK AS FOLLOWS. Example: [ X ]
THE BOARD OF DIRECTORS OF THE COMPANY RECOMMENDS A VOTE FOR THE FOLLOWING PROPOSALS:
| | 1. | | To elect four Directors to the Board of Directors: | | | |
| | | | | | | |
| | Independent Directors | FOR | WITHHOLD | |
| | | | | | | |
| | a. | | Linda L. Henderson | ¨ | ¨ | |
| | | | | | | |
| | b. | | William C. Melton | ¨ | ¨ | |
| | | | | | | |
| | c. | | Julie K. Getchell | ¨ | ¨ | |
| | | | | | | |
| | | | | |
| | Interested Director | | | |
| | | | | | | |
| | e. | | Gregory S. Strong | ¨ | ¨ | |
| | | | | | | |
| | | | | FOR | AGAINST | ABSTAIN |
| | | | | | | |
| | 2. | | To approve the proposed Agreement and Plan of Reorganization pursuant to which each Fund of Advantus Series Fund, Inc. would be reorganized as separate series of Securian Funds Trust, a newly-formed Delaware statutory trust, and to which the Funds and the Company will be liquidated and dissolved. | ¨ | ¨ | ¨ |
As to any other matter, Securian Life shall vote in accordance with its discretion.
PLEASE VOTE, SIGN AND DATE THIS VOTING INSTRUCTION CARD AND RETURN IT IN THE POSTAGE PAID ENVELOPE PROVIDED.
