AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION dated as of October 13, 2005 (the
"Agreement"), between THE ADVISORS' INNER CIRCLE FUND (the "Acquired Fund
Trust"), a Massachusetts business trust, on behalf of ANALYTIC DEFENSIVE EQUITY
FUND (the "Acquired Fund"), and OLD MUTUAL ADVISOR FUNDS (the "Acquiring Fund
Trust"), a Delaware statutory trust, on behalf of OLD MUTUAL ANALYTIC DEFENSIVE
EQUITY FUND (the "Acquiring Fund"). All agreements, representations, actions,
obligations and covenants described herein made or to be taken or undertaken by
the Acquired Fund and the Acquiring Fund are made and shall be taken or
undertaken by the Acquired Fund Trust on the Acquired Fund's behalf and by the
Acquiring Fund Trust on the Acquiring Fund's behalf.
This Agreement is intended to be and is adopted as a plan of
reorganization within the meaning of Treasury Regulation Section 1.368-2(g). The
reorganization will consist of the transfer of all of the assets of the Acquired
Fund to the Acquiring Fund in exchange solely for Class A, Class C and Class Z
shares of beneficial interest, par value $0.001 per share, of the Acquiring Fund
(the "Acquiring Fund Shares") and the assumption by the Acquiring Fund of all of
the liabilities of the Acquired Fund and the distribution, after the Closing
Date hereinafter referred to, of the Acquiring Fund Shares to the holders of
Class A, Class C and Institutional Class shares, as applicable, of the Acquired
Fund in complete liquidation of the Acquired Fund as provided herein, all upon
the terms and conditions hereinafter set forth in this Agreement (the
"Reorganization"). The parties hereto intend that the Reorganization will
qualify as a "reorganization" as defined in Section 368(a)(1) of the United
States Internal Revenue Code of 1986, as amended (the "Code").
WHEREAS, the Acquired Fund is a series of the Acquired Fund Trust, a
registered, open-end management investment company, and the Acquiring Fund is a
series of the Acquiring Fund Trust, a registered, open-end management investment
company;
WHEREAS, the Acquired Fund Trust's Board has determined that the
Reorganization is in the best interests of the Acquired Fund and the Acquired
Fund's shareholders and that the interests of the Acquired Fund's existing
shareholders will not be diluted as a result of the Reorganization; and
WHEREAS, the Acquiring Fund Trust's Board has determined that the
Reorganization is in the best interests of the Acquiring Fund:
NOW THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter set forth, the parties agree as follows:
1. THE REORGANIZATION.
1.1 Subject to the requisite approval of the Acquired Fund's
shareholders and the other terms and conditions contained herein, the Acquired
Fund agrees to assign, transfer and convey to the Acquiring Fund all of the
assets of the Acquired Fund, as set forth in paragraph 1.2, and the Acquiring
Fund agrees in exchange therefor: (a) to deliver to the Acquired Fund the number
of Acquiring Fund Shares, including fractional Acquiring Fund Shares, determined
as set forth in paragraph 2.3; and (b) to assume all of the liabilities of the
Acquired Fund, as set forth in paragraph 1.3. Such transactions shall take place
at the closing (the "Closing") as of the close of business on the closing date
(the "Closing Date") provided for in paragraph 3.1. In lieu of delivering
certificates for the Acquiring Fund Shares, the Acquiring Fund shall credit the
Acquiring Fund Shares to the Acquired Fund's account on the books of the
Acquiring Fund and shall deliver a confirmation thereof to the Acquired Fund.
1.2 (a) The assets of the Acquired Fund to be transferred to the
Acquiring Fund shall consist of all assets and property, tangible and
intangible, including, without limitation, all portfolio securities,
cash, cash equivalents, commodities and futures interests, dividends and
interests receivable, and all contractual rights and causes of action
that are owned by the Acquired Fund, and any deferred or prepaid
expenses shown as an asset on the books of the Acquired Fund, on the
Closing Date (the "Assets"). The Acquiring Fund also shall be entitled
to receive copies of all books and records that pertain to the Acquired
Fund that the Acquired Fund Trust is required to maintain under the
Investment Company Act of 1940, as amended (the "1940 Act"), and the
rules of the Securities and Exchange Commission (the "Commission")
thereunder.
(b) The Assets shall be delivered to Wachovia Bank, National
Association, ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the
Acquiring Fund's custodian ("Wachovia"), for the account of the
Acquiring Fund, with all securities not in bearer or book-entry form
duly endorsed, or accompanied by duly executed separate assignments or
stock powers, in proper form for transfer, with signatures guaranteed,
and with all necessary stock transfer stamps, sufficient to transfer
good and marketable title thereto (including all accrued interest and
dividends and rights pertaining thereto) to Wachovia for the account of
the Acquiring Fund free and clear of all liens, encumbrances, rights,
restrictions and claims. All cash so delivered shall be in the form of
immediately available funds payable to the order of Wachovia for the
account of the Acquiring Fund.
1.3 The Acquired Fund will, to the extent permissible and consistent
with its own investment objective and policies, endeavor to discharge all of its
liabilities and obligations prior to the Closing Date. The Acquiring Fund shall
assume all remaining liabilities of, allocated or attributable to, the Acquired
Fund, whether known or unknown, accrued or unaccrued, absolute or contingent or
conditional or unmatured (the "Liabilities"). Without limiting the foregoing,
Acquiring Fund Trust agrees to assume the obligation of Acquired Fund Trust to
indemnify and hold harmless the trustees and officers of Acquired Fund Trust
with respect to any action or omission or alleged action or omission relating to
the Acquired Fund prior to the Reorganization, including the obligation to
advance expenses, to the maximum extent permitted by applicable law and as set
forth in Acquired Fund Trust's Agreement and Declaration of Trust, as amended
(the "Acquired Fund Trust's Charter"), and By-Laws.
1.4 The Acquired Fund will pay or cause to be paid to the Acquiring
Fund any dividends and interest received on or after the Closing Date with
respect to the Assets transferred to the Acquiring Fund hereunder. The Acquired
Fund will transfer to the Acquiring Fund any distributions, rights or other
assets received by the Acquired Fund after the Closing Date as distributions on
or with respect to the securities transferred. Such assets shall be deemed
included in the Assets and shall not be separately valued.
1.5 As soon after the Closing Date as is conveniently practicable,
the Acquired Fund will distribute pro rata to holders of record of the Acquired
Fund's Class A and Class C shares, determined as of the close of business on the
Closing Date, Class A and Class C Acquiring Fund Shares, respectively, and will
distribute pro rata to holders of record of the Acquired Fund's Institutional
Class shares, determined as of the close of business on the Closing Date, Class
Z shares received by the Acquired Fund (holders of record of the Acquired Fund's
shares as of the Closing Date, "Acquired Fund Shareholders") pursuant to
paragraph 1.1, and will completely liquidate. Such distribution and liquidation
will be accomplished, with respect to each class of the Acquired Fund's shares,
by the transfer of the applicable class of Acquiring Fund Shares then credited
to the account of the Acquired Fund on the books of the Acquiring Fund to open
accounts on the share records of the Acquiring Fund in the names of the Acquired
Fund Shareholders and representing the respective pro rata number of the
applicable class of Acquiring Fund Shares due such shareholders. All issued and
outstanding shares of the Acquired Fund simultaneously will be canceled on the
books of the Acquired Fund.
1.6 Ownership of Acquiring Fund Shares will be shown on the books of
the Acquiring Fund's transfer agent. Acquiring Fund Shares will be issued in the
manner described in the Acquiring Fund's then-current prospectus(es) and
statement of additional information (collectively, the "Acquiring Fund's
Prospectus"); the Acquiring Fund, however, will not issue share certificates in
the Reorganization.
1.7 Any transfer taxes payable upon issuance of the Acquiring Fund
Shares in a name other than the registered holder of the Acquired Fund shares on
the books of the Acquired Fund as of that time shall, as a condition of such
issuance and transfer, be paid by the person to whom such Acquiring Fund Shares
are to be issued and transferred.
1.8 Any reporting responsibility of the Acquired Fund, including the
responsibility for filing regulatory reports, tax returns, or other documents
with the Commission, any state securities commission, and any federal, state or
local tax authorities or any other relevant regulatory authority, is and shall
remain the responsibility of the Acquired Fund and Acquired Fund Trust.
2. VALUATION.
2.1 The value of the Assets shall be the value of such Assets
computed as of the close of trading on the floor of the New York Stock Exchange
(usually 4:00 p.m., Eastern time) on the Closing Date (such time and date being
hereinafter called the "Valuation Date"), using the valuation procedures set
forth in the Acquiring Fund Trust's Agreement and Declaration of Trust, as
amended (the "Acquiring Fund Trust's Charter"), and the Acquiring Fund's
Prospectus, which are and shall be consistent with the policies currently in
effect for the Acquired Fund Trust and Acquired Fund.
2.2 The net asset value of each Class A, Class C and Class Z
Acquiring Fund Share, respectively, shall be the net asset value per share
computed as of the Valuation Date, using the valuation procedures set forth in
the Acquiring Fund Trust's Charter and the Acquiring Fund's Prospectus, which
are and shall be consistent with the policies currently in effect for the
Acquired Fund Trust and Acquired Fund.
2.3 The number of Class A, Class C and Class Z Acquiring Fund Shares
to be issued (including fractional shares, if any) in exchange for the Acquired
Fund's net assets shall be determined by dividing the value of the net assets
attributable to Class A, Class C and Institutional Class shares, respectively,
of the Acquired Fund determined using the same valuation procedures referred to
in paragraph 2.1 by the net asset value of one Class A, Class C and Class Z
Acquiring Fund Share, determined in accordance with paragraph 2.2.
2.4 Any computations of value of assets shall be made in accordance
with the regular practices of Old Mutual Fund Services ("Fund Services"), as
fund accountant for the Acquiring Fund, and shall be subject to verification by
the Acquired Fund and its independent accountants of the prices used in such
computations.
3. CLOSING AND CLOSING DATE.
3.1 The Closing Date shall be December 9, 2005, or such other date
as to which the parties, through their duly authorized officers, may mutually
agree. All acts taking place at the Closing shall be deemed to take place
simultaneously as of immediately after the close of business on the Closing
Date, unless otherwise agreed to by the parties. The Closing shall be held at
2:30 p.m. at the offices of Acquiring Fund Trust, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other time and/or place as to which
the parties may mutually agree.
3.2 The Acquired Fund shall direct Union Bank of California, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as custodian for the
Acquired Fund (the "Custodian"), to deliver at the Closing a certificate of an
authorized officer of the Custodian stating that: (i) the Assets have been
delivered in proper form to the Acquiring Fund within two business days prior to
or on the Closing Date and (ii) all necessary taxes in connection with the
delivery of the Assets, including all applicable federal and state stock
transfer stamps, if any, have been paid or provision for payment thereof has
been made. The Acquired Fund's portfolio securities represented by a certificate
or other written instrument shall be presented by the Custodian to Wachovia as
custodian for the Acquiring Fund for examination no later than five business
days preceding the Closing Date and shall be transferred and delivered by the
Acquired Fund as of the Closing Date for the account of the Acquiring Fund duly
endorsed in proper form for transfer in such condition as to constitute good
delivery thereof. The Custodian shall deliver as of the Closing Date by book
entry, in accordance with the customary practices of such depositories and the
Custodian, the Acquired Fund's portfolio securities and instruments deposited
with a securities depository, as defined in Rule 17f-4 under the 1940 Act. The
cash to be transferred by the Acquired Fund shall be delivered to Wachovia by
wire transfer of federal funds on the Closing Date.
3.3 If on the Valuation Date (a) the New York Stock Exchange or
another primary trading market for portfolio securities of the Acquiring Fund or
the Acquired Fund shall be closed to trading or trading thereon shall be
restricted, or (b) trading or the reporting of trading on said exchange or
elsewhere shall be disrupted so that accurate appraisal of the value of the net
assets of the Acquiring Fund or the Acquired Fund is impracticable, the Closing
Date shall be postponed until the first business day after the day when such
trading shall have been fully resumed and such reporting shall have been
restored.
3.4 The Acquired Fund shall direct DST Systems, Inc., ▇▇▇ ▇. ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as transfer agent for the Acquired Fund
(the "Transfer Agent"), to deliver at the Closing a certificate of an authorized
officer of the Transfer Agent stating that its records contain the names and
addresses of the Acquired Fund Shareholders and the number, share class and
percentage ownership of outstanding Acquired Fund shares owned by each such
shareholder immediately prior to the Closing. The Acquiring Fund shall issue and
deliver a confirmation evidencing the Acquiring Fund Shares to be credited on
the Closing Date to the Secretary of the Acquired Fund Trust, or provide
evidence satisfactory to the Acquired Fund Trust that such Acquiring Fund Shares
have been credited to the Acquired Fund's account on the books of the Acquiring
Fund. At the Closing, each party shall deliver to the other such bills of sale,
checks, assignments, receipts or other documents as such other party or its
counsel may reasonably request.
4. REPRESENTATIONS AND WARRANTIES.
4.1 The Acquired Fund Trust, on behalf of the Acquired Fund,
represents and warrants to the Acquiring Fund Trust, on behalf of the Acquiring
Fund, as follows:
(a) The Acquired Fund is a duly established and designated
series of the Acquired Fund Trust, a voluntary association with
transferable shares of the type commonly referred to as a Massachusetts
business trust duly organized and validly existing under the laws of the
Commonwealth of Massachusetts, with power to own all of its properties
and assets, to carry on its business as it is now being conducted and to
carry out its obligations under this Agreement.
(b) The Acquired Fund Trust is registered under the 1940 Act
as an open-end management investment company, and the Acquired Fund's
shares are registered under the Securities Act of 1933, as amended (the
"1933 Act"), and such registrations have not been revoked or rescinded
and are in full force and effect.
(c) The current prospectus(es) and statement of additional
information of the Acquired Fund and each prospectus and statement of
additional information of the Acquired Fund used during the three years
prior to the date of this Agreement conform or conformed at the time of
its use in all material respects to the applicable requirements of the
1933 Act and the 1940 Act and the rules and regulations of the
Commission thereunder and do not and did not at the time of its use
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not materially misleading.
(d) The Acquired Fund is not, and the execution, delivery
and performance of this Agreement will not result, in (i) a material
violation of the Acquired Fund Trust's Charter or its By-Laws or of any
agreement, indenture, instrument, contract, lease or other undertaking
to which the Acquired Fund Trust is a party on behalf of the Acquired
Fund or by which the Acquired Fund is bound; or (ii) the acceleration of
any obligation, or the imposition of any penalty, under any agreement,
indenture, instrument, contract, lease, judgment or decree to which the
Acquired Fund Trust is a party on behalf of the Acquired Fund or by
which the Acquired Fund is bound.
(e) The Acquired Fund has no material contracts or other
commitments outstanding (other than this Agreement) that will be
terminated with liability to the Acquired Fund on or prior to the
Closing Date.
(f) No consent, approval, authorization, or order of any
court or governmental authority is required for the consummation by the
Acquired Fund of the transactions contemplated herein, except as may be
required under the 1933 Act, the Securities Exchange Act of 1934, as
amended (the "1934 Act"), and the 1940 Act and by state securities laws.
(g) No litigation or administrative proceeding or
investigation of or before any court or governmental body is currently
pending or to its knowledge threatened against the Acquired Fund or any
of its properties or assets that, if adversely determined, would
materially and adversely affect its financial
condition or the conduct of its business. The Acquired Fund knows of no
facts that might form the basis for the institution of such proceedings
and is not a party to or subject to the provisions of any order, decree
or judgment of any court or governmental body that materially and
adversely affects its business or its ability to consummate the
transactions herein contemplated.
(h) The Statement of Assets and Liabilities, Statement of
Operations, Statements of Changes in Net Assets and Schedule of
Investments (indicating their market values) of the Acquired Fund for
the fiscal year ended December 31, 2004, which have been audited as of
that date by PricewaterhouseCoopers LLP, independent public registered
accounting firm, and the Statement of Assets and Liabilities, Statement
of Operations, Statement of Changes in Net Assets and Schedule of
Investments of the Acquired Fund for the semi-annual period ended June
30, 2005 are in accordance with generally accepted accounting
principles, and such statements and schedule (copies of which have been
furnished to the Acquiring Fund) present fairly, in all material
respects, the financial condition of the Acquired Fund as of such dates,
and there are no known contingent liabilities of the Acquired Fund as of
such date not disclosed therein.
(i) On the Closing Date, the Acquired Fund will have good
and marketable title to the Assets and full right, power, and authority
to sell, assign, transfer and deliver the Assets free of any liens or
other encumbrances, and upon delivery and payment for the Assets, the
Acquiring Fund will acquire good and marketable title thereto, subject
to no restrictions on the full transfer thereof, including such
restrictions as might arise under the 1933 Act, other than as disclosed
to and accepted by the Acquiring Fund.
(j) Since December 31, 2004, there has not been any material
adverse change in the Acquired Fund's financial condition, assets,
liabilities or business other than changes occurring in the ordinary
course of business, or any incurrence by the Acquired Fund of
indebtedness maturing more than one year from the date such indebtedness
was incurred, except as disclosed to and accepted by the Acquiring Fund.
(k) At the Closing Date, all federal and other tax returns
and reports of the Acquired Fund required by law then to be filed shall
have been filed and are correct in all material respects, and all
federal and other taxes shown as due on said returns and reports shall
have been paid or provision shall have been made for the payment
thereof, and to the best of the Acquired Fund Trust's knowledge no such
return is currently under audit and no assessment has been asserted with
respect to such returns.
(l) The Acquired Fund has met the requirements of Subchapter
M of the Code for qualification and treatment as a regulated investment
company, has elected to be treated as such, and has been eligible to and
has computed its federal income tax under Section 852 of the Code for
all taxable years or periods (to the extent applicable) ending on or
prior to the Closing Date.
(m) All issued and outstanding shares of the Acquired Fund
are, and at the Closing Date will be, duly and validly issued and
outstanding, fully paid and non-assessable by the Acquired Fund Trust
(recognizing that under Massachusetts law, shareholders could under
certain circumstances be held personally liable for the Acquired Fund's
obligations) and have been offered and sold in every state, the District
of Columbia and Puerto Rico in compliance with applicable registration
requirements of the 1933 Act and state securities laws. All of the
issued and outstanding shares of the Acquired Fund will, at the time of
Closing, be held by the persons and in the amounts set forth in the
records of the Transfer Agent, as provided in paragraph 3.4. The
Acquired Fund does not have outstanding any options, warrants or other
rights to subscribe for or purchase any of the Acquired Fund's shares,
nor is there outstanding any security convertible into any of the
Acquired Fund's shares.
(n) The execution, delivery and performance of this
Agreement will have been duly authorized prior to the Closing Date by
all necessary action on the part of the Acquired Fund Trust's Board,
subject to the approval of the Acquired Fund's shareholders, and
assuming the due authorization, execution and delivery of this Agreement
by the Acquiring Fund Trust, this Agreement constitutes the valid and
legally binding obligation of the Acquired Fund Trust, on behalf of the
Acquired Fund, enforceable in accordance with its terms, subject to the
effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other similar laws relating to or affecting creditors'
rights generally and court decisions with respect thereto and to general
principles of equity and the discretion of the court (regardless of
whether the enforceability is considered in a proceeding in equity or at
law).
(o) The information to be furnished by the Acquired Fund
Trust, on behalf of the Acquired Fund, for use in registration
statements, proxy materials and other documents filed or to be filed
with any federal, state or local regulatory authority (including the
National Association of Securities Dealers, Inc.), which may be
necessary in connection with the transactions contemplated hereby, shall
be accurate and complete in all material respects and shall comply in
all material respects with federal securities and other laws and
regulations applicable thereto.
(p) The proxy statement of the Acquired Fund (the "Proxy
Statement") included in the Registration Statement referred to in
paragraph 5.5, insofar as it relates to the Acquired Fund, will, on the
effective date of the Registration Statement and on the Closing Date,
(i) not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which such
statements were made, not materially misleading; provided, however, that
the representations and warranties in this subparagraph (p) shall apply
only to statements in or omissions from the Proxy Statement and the
Registration Statement made in reliance upon and in conformity with
information that was furnished by or on behalf of the Acquired Fund
Trust or the Acquired Fund for use therein, and (ii) comply in all
material respects with the provisions of the 1933 Act, the 1934 Act and
the 1940 Act and the rules and regulations thereunder, provided that any
failure to comply with these statutes, rules and regulations is a direct
result of (a) the provision of misleading or inaccurate information by
or on behalf of the Acquired Fund Trust or the Acquired Fund to the
Acquiring Fund Trust in connection with the preparation of the Proxy
Statement or (b) the failure to provide any necessary and accurate
information by the Acquired Fund Trust or the Acquired Fund to the
Acquiring Fund Trust in connection with or related to the preparation of
the Proxy Statement.
4.2 The Acquiring Fund Trust, on behalf of the Acquiring Fund,
represents and warrants to the Acquired Fund Trust, on behalf of the Acquired
Fund, as follows:
(a) The Acquiring Fund is a duly established and designated
series of the Acquiring Fund Trust, a Delaware statutory trust duly
organized, validly existing and in good standing under the laws of the
State of Delaware, with power to own all of its properties and assets,
to carry on its business as it is now being conducted and to carry out
its obligations under this Agreement.
(b) The Acquiring Fund Trust is registered under the 1940
Act as an open-end management investment company, and the Acquiring Fund
Shares are registered under the 1933 Act, and such registrations have
not been revoked or rescinded and are in full force and effect.
(c) The Acquiring Fund's Prospectus and its statement of
additional information conform in all material respects to the
applicable requirements of the 1933 Act and the 1940 Act and the rules
and regulations of the Commission thereunder and do not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
materially misleading.
(d) The Acquiring Fund is not, and the execution, delivery
and performance of this Agreement will not result, in (i) a material
violation of the Acquiring Fund Trust's Charter or its By-Laws or of any
agreement, indenture, instrument, contract, lease or other undertaking
to which the Acquiring Fund Trust is a party on behalf of the Acquiring
Fund or by which the Acquiring Fund is bound or (ii) the acceleration of
any obligation, or the imposition of any penalty, under any agreement,
indenture, instrument, contract, lease, judgment or decree to which the
Acquiring Fund Trust is a party on behalf of the Acquiring Fund or by
which the Acquiring Fund is bound.
(e) The Acquiring Fund has no material contracts or other
commitments outstanding (other than this Agreement) that will be
terminated with liability to the Acquiring Fund on or prior to the
Closing Date.
(f) No consent, approval, authorization, or order of any
court or governmental authority is required for the consummation by the
Acquiring Fund of the transactions contemplated herein, except as may be
required under the 1933 Act, the 1934 Act and the 1940 Act and by state
securities law.
(g) No litigation or administrative proceeding or
investigation of or before any court or governmental body is currently
pending or to its knowledge threatened against the Acquiring Fund or any
of its properties or assets that, if adversely determined, would
materially and adversely affect its financial condition or the conduct
of its business. The Acquiring Fund knows of no facts that might form
the basis for the institution of such proceedings and is not a party to
or subject to the provisions of any order, decree or judgment of any
court or governmental body that materially and adversely affects its
business or its ability to consummate the transactions contemplated
herein.
(h) The Acquiring Fund will not have had any assets (other
than assets required to meet requirements of Section 14(a) of the 1940
Act or other seed capital) or operations at any time prior to the
Closing Date. Upon filing of its first federal income tax return at the
completion of its first taxable year, the Acquiring Fund will elect to
be treated as a regulated investment company and until such time will
take all steps necessary to ensure qualification as a regulated
investment company under the Code.
(i) All issued and outstanding shares of the Acquiring Fund
are, and at the Closing Date will be, duly and validly issued and
outstanding, fully paid and non-assessable by the Acquiring Fund Trust,
and no shareholder of the Acquiring Fund shall have any preemptive right
of subscription or purchase in respect of them. The Acquiring Fund does
not have outstanding any options, warrants or other rights to subscribe
for or purchase any of the Acquiring Fund Shares, nor is there
outstanding any security convertible into any Acquiring Fund Shares.
(j) The Acquiring Fund Shares to be issued and delivered to
the Acquired Fund for the account of Acquired Fund Shareholders,
pursuant to the terms of this Agreement, on the Closing Date will have
been duly authorized Acquiring Fund Shares, and will be fully paid and
non-assessable by the Acquiring Fund Trust and no shareholder of the
Acquiring Fund shall have any preemptive right of subscription or
purchase in respect of them.
(k) The execution, delivery and performance of this
Agreement will have been duly authorized prior to the Closing Date by
all necessary action, if any, on the part of the Acquiring Fund Trust's
Board, subject to the approval of the Acquired Fund's shareholders, and
assuming the due authorization, execution and delivery of this Agreement
by the Acquired Fund Trust, this Agreement constitutes the valid and
legally binding obligation of the Acquiring Fund, enforceable in
accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other
similar laws relating to or affecting creditors' rights generally and
court decisions with respect thereto and to general principles of equity
and the discretion of the court (regardless of whether the
enforceability is considered in a proceeding in equity or at law).
(l) The Registration Statement referred to in paragraph 5.5
(only insofar as it relates to the Acquiring Fund and is based on
information furnished by the Acquiring Fund) will, on the effective date
of the Registration Statement, (i) not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which such statements were made, not materially
misleading; provided, however, that the representations and warranties
in this subparagraph (l) shall not apply to statements in or omissions
from the Registration Statement made in reliance upon and in conformity
with information that was furnished by the Acquired Fund Trust or the
Acquired Fund for use therein, and (ii) comply in all material respects
with the provisions of the 1933 Act, the 1934 Act and the 1940 Act and
the rules and regulations thereunder.
5. COVENANTS OF THE ACQUIRING FUND AND THE ACQUIRED FUND.
5.1 The Acquiring Fund and the Acquired Fund each will operate its
business in the ordinary course between the date hereof and the Closing Date, it
being understood that such ordinary course of business will include payment of
customary dividends and other distributions.
5.2 The Acquired Fund Trust will call a meeting of the Acquired
Fund's shareholders to consider and act upon this Agreement and to take all
other action necessary to obtain approval of the transactions contemplated
herein.
5.3 Subject to the provisions of this Agreement, the Acquired Fund
and the Acquiring Fund will each take, or cause to be taken, all action, and do
or cause to be done, all things reasonably necessary, proper or advisable to
consummate and make effective the transactions contemplated by this Agreement.
5.4 As promptly as practicable, but in any case within 60 days after
the Closing Date, the Acquired Fund Trust shall furnish the Acquiring Fund
Trust, in such form as is reasonably satisfactory to the Acquiring Fund Trust, a
statement of the current and accumulated earnings and profits of the Acquired
Fund for federal income tax purposes and of any capital loss carryovers and
other items that will be carried over to the Acquiring Fund under the Code, in
each instance indicating the period or periods to which such earnings and
profits, carryovers and other items relate or in which they arose, as
applicable, which statement will be certified by the Acquired Fund Trust's
President or its Chief Financial Officer.
5.5 The Acquired Fund Trust, on behalf of the Acquired Fund, will
provide the Acquiring Fund with information reasonably necessary for the
preparation of a prospectus, which will include the Proxy Statement, all to be
included in a Registration Statement on Form N-14 of the Acquiring Fund Trust,
on behalf of the Acquiring Fund, and any supplement or amendment thereto (the
"Registration Statement") in compliance with the 1933 Act, the 1934 Act and the
1940 Act in connection with the meeting of the Acquired Fund's shareholders
referred to in paragraph 5.2.
5.6 The Acquiring Fund agrees to use all reasonable efforts to
obtain the approvals and authorizations required by the 1933 Act, the 1940 Act
and such of the state Blue Sky or securities laws as it may deem appropriate in
order to continue its operations after the Closing Date.
5.7 The Acquired Fund Trust, on behalf of the Acquired Fund,
covenants that the Acquired Fund is not acquiring the Acquiring Fund Shares to
be issued hereunder for the purpose of making any distribution thereof, other
than in accordance with the terms of this Agreement.
5.8 The Acquired Fund Trust, on behalf of the Acquired Fund, will
assist the Acquiring Fund in obtaining such information as the Acquiring Fund
reasonably requests concerning the beneficial ownership of Acquired Fund shares.
5.9 As soon as is reasonably practicable after the Closing, the
Acquired Fund will make a liquidating distribution to Acquired Fund Shareholders
consisting of the Acquiring Fund Shares received at the Closing.
5.10 The Acquired Fund Trust, on behalf of the Acquired Fund,
covenants that it will, from time to time, as and when reasonably requested by
the Acquiring Fund, execute and deliver or cause to be executed and delivered
all such assignments and other instruments and will take or cause to be taken
such further action as the Acquiring Fund may reasonably deem necessary or
desirable to vest in and confirm the Acquiring Fund's title to and possession of
all the Assets and otherwise to carry out the intent and purpose of this
Agreement.
5.11 Each of the Acquired Fund and the Acquiring Fund and the
Acquired Fund Trust and the Acquiring Fund Trust shall use its best efforts to
cause the Reorganization to qualify, and will not (either before or after the
Closing Date) knowingly take any action, cause any action to be taken, fail to
take any action or cause any action to fail to be taken, which action or failure
to act could prevent the Reorganization from qualifying, as a reorganization
under the provisions of Section 368(a) of the Code.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND.
The obligations of the Acquiring Fund to consummate the transactions
provided for herein shall be subject, at its election, to the performance by the
Acquired Fund of all the obligations to be performed by it hereunder on or
before the Closing Date and, in addition thereto, the following conditions:
6.1 All representations and warranties by the Acquired Fund Trust,
on behalf of the Acquired Fund, contained in this Agreement shall be true and
correct in all material respects as of the date hereof and, except as they may
be affected by the transactions contemplated by this Agreement, as of the
Closing Date, with the same force and effect as if made on and as of the Closing
Date.
6.2 The Acquired Fund Trust shall have delivered to the Acquiring
Fund Trust on the Closing Date a statement of the Acquired Fund's assets and
liabilities, together with a list of the Acquired Fund's portfolio securities
showing the federal income tax basis of such securities by lot and the
respective holding periods of each such lot of securities, as of the Closing
Date, certified by the Acquired Fund Trust's Treasurer.
6.3 The Acquired Fund Trust shall have delivered to the Acquiring
Fund Trust on the Closing Date a certificate executed in the Acquired Fund
Trust's name by its President or Vice President and its Treasurer, in form and
substance satisfactory to the Acquiring Fund Trust, to the effect that the
representations and warranties made in this Agreement by the Acquired Fund
Trust, on behalf of the Acquired Fund, are true and correct at and as of the
Closing Date, except as they may be affected by the transactions contemplated by
this Agreement, and as to such other matters as the Acquiring Fund Trust shall
reasonably request.
6.4 The Acquired Fund and the Acquired Fund Trust 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 Acquired Fund or the
Acquired Fund Trust, as the case may be, on or before the Closing Date.
6.5 The Acquiring Fund shall have received on the Closing Date a
favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Acquired Fund,
in a form satisfactory to the Acquiring Fund Trust, that:
(a) the Acquired Fund Trust is a voluntary association with
transferable shares of the type commonly referred to as a Massachusetts
business trust duly organized and validly existing under the laws of the
Commonwealth of Massachusetts and has the power to own all of its
properties and assets and to carry on its business as a registered
investment company and the Acquired Fund is a duly established and
designated series of the Acquired Fund Trust;
(b) this Agreement has been duly authorized, executed and
delivered by the Acquired Fund Trust, on behalf of the Acquired Fund
and, assuming due authorization, execution and delivery of this
Agreement by the Acquiring Fund Trust, on behalf of the Acquiring Fund,
is a valid and legally binding obligation of the Acquired Fund Trust, on
behalf of the Acquired Fund, enforceable against the Acquired Fund
Trust, with respect to the Acquired Fund, in accordance with its terms,
subject to the effect of bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws relating to or
affecting creditors' rights generally and court decisions with respect
thereto and to general principles of equity and the discretion of the
court (regardless of whether the enforceability is considered in a
proceeding in equity or at law);
(c) the execution and delivery of this Agreement did not,
and the consummation of the transactions contemplated hereby will not,
conflict with the Acquired Fund Trust's Charter or its By-Laws or result
in a material violation of any provision of any material agreement
(known to such counsel) to which the Acquired Fund is a party or by
which it or its property is bound or, to the knowledge of such counsel,
result in the acceleration of any obligation or the imposition of any
penalty, under any material agreement, judgment, or decree to which the
Acquired Fund is a party or by which it or its property is bound;
(d) to the knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority of the
United States or the Commonwealth of Massachusetts is required for the
consummation by the Acquired Fund Trust, on behalf of the Acquired Fund,
of the transactions contemplated herein, except such as have been
obtained under the 1933 Act, the 1934 Act and the 1940 Act, and such as
may be required under state securities laws;
(e) to the knowledge of such counsel, there is no legal,
administrative or governmental proceeding, investigation, order, decree
or judgment of any court or governmental body, only insofar as they
relate to the Acquired Fund or its assets or properties, pending,
threatened or otherwise existing on or before the effective date of the
Registration Statement or the Closing Date that is required to be
described in the Registration Statement or to be filed as an exhibit to
the Registration Statement that is not described or filed as required or
that materially and adversely affect the Acquired Fund's business; and
(f) the Acquired Fund Trust is registered as an investment
company under the 1940 Act, and, to the knowledge of such counsel, its
registration with the Commission as an investment company under the 1940
Act is in full force and effect.
In rendering its opinion, counsel may (i) limit such opinion to
applicable federal and state law and rely as to matters governed by the
laws of the Commonwealth of Massachusetts on an opinion of Massachusetts
counsel and/or certificates of officers or trustees of the Acquired Fund
Trust; (ii) rely as to factual matters, exclusively and without
independent verification, on the representations and warranties made in
this Agreement, which counsel may treat as representations and
warranties made to it, and in separate letters addressed to counsel and
the certificates delivered pursuant to this Agreement; and (iii) define
the word "knowledge" and related terms to mean the knowledge of
attorneys then with such firm who have devoted substantive attention to
matters directly related to this Agreement. In rendering its opinion
pursuant to subparagraph (b) of this section, counsel may limit such
opinion with respect to the application of equitable principles or any
proceeding, whether at law or in equity, as to the enforceability of any
provision of the Agreement relating to remedies after default, as to
availability of any specific or equitable relief of any kind, with
respect to the provisions of the Agreement intended to limit liability
for a particular matter to the Acquired Fund and its assets, including
but not limited to the provisions of the Agreement relating to
indemnification.
6.6 The Acquiring Fund shall have received from
PricewaterhouseCoopers LLP a consent dated near the effective date of the
Registration Statement, in form and substance satisfactory to the Acquiring
Fund, to the effect that they consent to the incorporation by reference of their
report relating to the financial statements and financial highlights of the
Acquired Fund in the Registration Statement.
6.7 The Acquired Fund shall have previously provided to the
Acquiring Fund (and at the Closing shall provide an update through the Closing
Date of such information) data that supports a calculation of the Acquired
Fund's total return for all periods since the organization of the Acquired Fund.
Such data shall have been prepared in accordance in all material respects with
the requirements of the 1940 Act and the regulations thereunder.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED FUND.
The obligations of the Acquired Fund to consummate the transactions
provided for herein shall be subject, at its election, to the performance by the
Acquiring Fund of all the obligations to be performed by it hereunder on or
before the Closing Date and, in addition thereto, the following conditions:
7.1 All representations and warranties by the Acquiring Fund Trust,
on behalf of the Acquiring Fund, contained in this Agreement shall be true and
correct in all material respects as of the date hereof and, except as they may
be affected by the transactions contemplated by this Agreement, as of the
Closing Date, with the same force and effect as if made on and as of the Closing
Date.
7.2 The Acquiring Fund Trust shall have delivered to the Acquired
Fund Trust on the Closing Date a certificate executed in the Acquiring Fund
Trust's name by its President or Vice President and its Treasurer, in form and
substance reasonably satisfactory to the Acquired Fund Trust, to the effect that
the representations and warranties made in this Agreement by the Acquiring Fund
Trust, on behalf of the Acquiring Fund, are true and correct at and as of the
Closing Date, except as they may be affected by the transactions contemplated by
this Agreement, and as to such other matters as the Acquired Fund Trust shall
reasonably request.
7.3 The Acquiring Fund and the Acquiring Fund Trust 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 Acquiring Fund or the
Acquiring Fund Trust, as the case may be, on or before the Closing Date.
7.4 The Acquired Fund shall have received on the Closing Date a
favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the
Acquiring Fund, in a form satisfactory to the Acquired Fund Trust, that:
(a) the Acquiring Fund Trust is a Delaware statutory trust
duly organized, validly existing and in good standing under the laws of
the State of Delaware and has the power to own all of its properties and
assets and to carry on its business as a registered investment company
and the Acquiring Fund is a duly established and designated series of
the Acquiring Fund Trust;
(b) this Agreement has been duly authorized, executed and
delivered by the Acquiring Fund Trust, on behalf of the Acquiring Fund
and, assuming due authorization, execution and delivery of this
Agreement by the Acquired Fund Trust, on behalf of the Acquired Fund, is
a valid and legally binding obligation of the Acquiring Fund Trust, on
behalf of the Acquiring Fund, enforceable against the Acquiring Fund
Trust, with respect to the Acquiring Fund, in accordance with its terms,
subject to the effect of bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws relating to or
affecting creditors' rights generally and court decisions with respect
thereto and to general principles of equity and the discretion of the
court (regardless of whether the enforceability is considered in a
proceeding in equity or at law);
(c) the execution and delivery of this Agreement did not,
and the consummation of the transactions contemplated hereby will not,
conflict with the Acquiring Fund Trust's Charter or its By-Laws or
result in a material violation of any provision of any material
agreement (known to such counsel) to which the Acquiring Fund is a party
or by which it or its property is bound or, to the knowledge of such
counsel, result in the acceleration of any obligation or the imposition
of any penalty, under any material agreement, judgment, or decree to
which the Acquiring Fund is a party or by which it or its property is
bound;
(d) to the knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority of the
United States or the State of Delaware is required for the consummation
by the Acquiring Fund Trust, on behalf of the Acquiring Fund, of the
transactions contemplated herein, except such as have been obtained
under the 1933 Act, the 1934 Act and the 1940 Act, and such as may be
required under state securities laws;
(e) to the knowledge of such counsel, there is no legal,
administrative or governmental proceeding, investigation, order, decree
or judgment of any court or governmental body, only insofar as they
relate to the Acquiring Fund or its assets or properties, pending,
threatened or otherwise existing on or before the effective date of the
Registration Statement or the Closing Date that is required to be
described in the Registration Statement or to be filed as an exhibit to
the Registration Statement that is not described or filed as required or
that materially and adversely affect the Acquiring Fund's business;
(f) the Acquiring Fund Trust is registered as an investment
company under the 1940 Act, and, to the knowledge of such counsel, its
registration with the Commission as an investment company under the 1940
Act is in full force and effect; and
(g) the Acquiring Fund Shares to be issued and delivered to
the Acquired Fund pursuant to the terms of this Agreement have been duly
authorized for issuance and, when issued and delivered as provided in
the Agreement, will be validly issued, fully paid and non-assessable
under Delaware law, and no preemptive rights of shareholders exist with
respect to any such shares or the issue or delivery thereof.
Such counsel may rely as to matters governed by the laws of the State of
Delaware on an opinion of Delaware counsel and/or certificates of
officers or trustees of the Acquiring Fund Trust. Such opinion also
shall include such other matters incident to the transaction
contemplated hereby as the Acquired Fund Trust may reasonably request.
In rendering its opinion, counsel may rely as to factual matters,
exclusively and without independent verification, on the representations
and warranties made in this Agreement, which counsel may treat as
representations and warranties made to it, and in separate letters
addressed to counsel and the certificates delivered pursuant to this
Agreement.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED FUND AND THE
ACQUIRING FUND.
If any of the conditions set forth below do not exist on or before the
Closing Date with respect to the Acquired Fund or the Acquiring Fund, the
Acquired Fund Trust or the Acquiring Fund Trust, respectively, shall, at its
option, not be required to consummate the transactions contemplated by this
Agreement.
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 Acquired Fund in accordance with the provisions of the Acquired
Fund Trust's Charter and its By-Laws, applicable Massachusetts law and the 1940
Act, and certified copies of the resolutions evidencing such approval shall have
been delivered to the Acquiring Fund. Notwithstanding anything in this Agreement
to the contrary, neither the Acquired Fund nor the Acquiring Fund may waive the
conditions set forth in this paragraph 8.1.
8.2 On the Closing Date, no action, suit or other proceeding shall
be pending or, to either party's knowledge, threatened before any court or
governmental agency in which it is sought to restrain or prohibit, or obtain
damages or other relief in connection with, this Agreement or the transactions
contemplated herein.
8.3 All consents of other parties and all other consents, orders and
permits of federal, state and local regulatory authorities (including those of
the Commission and of state Blue Sky and securities authorities) deemed
necessary by the Acquired Fund or the Acquiring Fund to permit consummation, in
all material respects, of the transactions contemplated hereby shall have been
obtained, except where failure to obtain any such consent, order or permit would
not involve a risk of a material adverse effect on the assets or properties of
the Acquired Fund or the Acquiring Fund.
8.4 The Acquired Fund and the Acquiring Fund shall have agreed on
the number of full and fractional Class A, Class C and Class Z Acquiring Fund
Shares to be issued in connection with the Reorganization after such number has
been calculated in accordance with paragraph 2.3.
8.5 The Registration Statement shall have become effective under the
1933 Act and no stop orders suspending the effectiveness thereof shall have been
issued and, to the best knowledge of the parties hereto, no investigation or
proceeding for that purpose shall have been instituted or be pending, threatened
or contemplated under the ▇▇▇▇ ▇▇▇.
8.6 The Acquired Fund Trust shall have received an opinion of
▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP addressed to the Acquired Fund Trust, on behalf of
the Acquired Fund, and the Acquiring Fund Trust shall have received an opinion
of ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP addressed to the Acquiring Fund Trust, on
behalf of the Acquiring Fund, substantially to the effect that, based on certain
facts, qualifications, assumptions and representations, and conditioned on
consummation of the Reorganization in accordance with this Agreement, for
federal income tax purposes:
(a) the transfer of all of the Assets to the Acquiring Fund
in exchange solely for the Acquiring Fund Shares and the assumption by
the Acquiring Fund of the Liabilities, followed by the distribution by
the Acquired Fund of the Acquiring Fund Shares to the Acquired Fund
Shareholders in complete liquidation of the Acquired Fund, will qualify
as a "reorganization" as defined in Section 368(a)(1)(F) of the Code,
and each of the Acquired Fund and the Acquiring Fund will be "a party to
a reorganization" within the meaning of Section 368(b) of the Code;
(b) no gain or loss will be recognized by the Acquiring Fund
upon the receipt of the Assets in exchange solely for Acquiring Fund
Shares and the assumption by the Acquiring Fund of the Liabilities
pursuant to the Reorganization;
(c) no gain or loss will be recognized by the Acquired Fund
upon the transfer of the Assets to the Acquiring Fund in exchange solely
for Acquiring Fund Shares and the assumption by the Acquiring Fund of
the Liabilities or upon the distribution (whether actual or
constructive) of Acquiring Fund Shares to Acquired Fund Shareholders in
exchange for their shares of the Acquired Fund in liquidation of the
Acquired Fund pursuant to the Reorganization;
(d) no gain or loss will be recognized by Acquired Fund
Shareholders upon the exchange of their Acquired Fund shares for the
Acquiring Fund Shares pursuant to the Reorganization;
(e) the aggregate tax basis for the Acquiring Fund Shares
received by each Acquired Fund Shareholder pursuant to the
Reorganization will be the same as the aggregate tax basis of the
Acquired Fund shares held by such Acquired Fund Shareholder immediately
prior to the Reorganization, and the holding period of the Acquiring
Fund Shares received by each Acquired Fund Shareholder pursuant to the
Reorganization will include the period during which the Acquired Fund
shares exchanged therefore were held by such Acquired Fund Shareholder
(provided the Acquired Fund shares were held as capital assets on the
date of the exchange); and
(f) the tax basis of each Asset acquired by the Acquiring
Fund pursuant to the Reorganization will be the same as the tax basis of
that Asset to the Acquired Fund immediately prior to the Reorganization,
and the holding period of each Asset in the hands of the Acquiring Fund
will include the period during which such Asset was held by the Acquired
Fund. In rendering its opinion, each of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP and
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may rely upon such certificates as
it shall request of the Acquiring Fund Trust on behalf of the Acquiring
Fund, the Acquired Fund Trust on behalf of the Acquired Fund and Fund
Services. Notwithstanding anything herein to the contrary, neither the
Acquiring Fund nor the Acquired Fund may waive the conditions set forth
in this paragraph 8.6.
In rendering its opinion, each counsel may rely as to factual matters,
exclusively and without independent verification, on the representations
and warranties made in this Agreement, which counsel may treat as
representations and warranties made to it, and in separate letters
addressed to counsel and the certificates delivered pursuant to this
Agreement.
No opinions will be expressed as to the effect of the Reorganization on
(i) the Acquired Fund or the Acquiring Fund with respect to any Asset as
to which any unrealized gain or loss is required to be recognized for
federal income tax purposes at the end of a taxable year (or on the
termination or transfer thereof) under a ▇▇▇▇-to-market system of
accounting, and (ii) any Acquired Fund Shareholders that are required to
recognize unrealized gains and losses for federal income tax purposes
under a ▇▇▇▇-to-market system of accounting.
9. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES.
9.1 The Acquired Fund Trust and the Acquiring Fund Trust agree that
neither party has made any representation, warranty or covenant not set forth
herein and this Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof.
9.2 The representations, warranties and covenants contained in this
Agreement or in any document delivered pursuant hereto or in connection herewith
shall survive the consummation of the transactions contemplated hereunder.
10. TERMINATION OF AGREEMENT.
This Agreement may be terminated and the transactions contemplated
hereby may be abandoned by mutual agreement of the parties or by either party
(i) if the Closing shall not have occurred on or before February 7, 2006, unless
such date is extended by mutual agreement of the parties, or (ii) if the other
party shall have materially
breached its obligations under this Agreement or made a material and intentional
misrepresentation herein or in connection herewith. In the event of any such
termination, this Agreement shall become void and there shall be no liability
hereunder on the part of any party or their respective trustees or officers,
except for any such material breach or intentional misrepresentation, as to each
of which all remedies at law or in equity of the party adversely affected shall
survive.
11. AMENDMENTS.
This Agreement may be amended, modified and supplemented in such manner
as may be deemed necessary or advisable by the authorized officers of the
Acquiring Fund Trust and the Acquired Fund Trust; provided, however, that
following the meeting of shareholders of the Acquired Fund referred to in
paragraph 5.2, no such amendment may have the effect of changing the provisions
for determining the number of the Acquiring Fund Shares to be issued to the
Acquired Fund Shareholders under this Agreement to the detriment of such
shareholders without their further approval.
12. EXPENSES.
12.1 Each of the Acquired Fund Trust and the Acquiring Fund Trust
represents and warrants to the other that there are no brokers or finders
entitled to receive any payments in connection with the transactions provided
for herein.
12.2 Each party acknowledges that all expenses incurred in connection
with the Reorganization, whether or not the Reorganization is consummated, will
be borne by Old Mutual Capital, Inc.
13. NOTICES.
Any notice, report, statement or demand required or permitted by any
provisions of this Agreement shall be in writing and shall be given by
facsimile, personal service or prepaid or certified mail addressed to:
If to the Acquired Fund Trust,
The Advisors' Inner Circle Fund
c/o SEI Investments Global Funds Services
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
with a copy to:
▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
If to the Acquiring Fund Trust,
Old Mutual Advisor Funds
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
14. HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT; LIMITATION OF
LIABILITY.
14.1 The article and paragraph headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
14.2 This Agreement may be executed in counterparts, each of which,
when executed and delivered, shall be deemed to be an original.
14.3 This Agreement shall be governed and construed in accordance
with the internal laws of the State of New York, without giving effect to
principles of conflict of laws; provided, however, that the due authorization,
execution and delivery of this Agreement by the Acquired Fund Trust and the
Acquiring Fund Trust shall be governed and construed in accordance with the
internal laws of the Commonwealth of Massachusetts and the State of Delaware,
respectively, without giving effect to principles of conflict of laws.
14.4 This Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns, but no assignment or
transfer hereof or of any rights or obligations hereunder shall be made by any
party without the written consent of the other party. Nothing herein expressed
or implied is intended or shall be construed to confer upon or give any person,
firm or corporation, other than the parties hereto and their respective
successors and assigns, any rights or remedies under or by reason of this
Agreement.
14.5 It is expressly agreed that the obligations of the parties
hereunder shall not be binding upon any of the trustees, shareholders, nominees,
officers, agents, or employees of the Acquired Fund Trust or the Acquiring Fund
Trust personally, but shall bind only the property of the Acquired Fund or the
Acquiring Fund, as the case may be, as provided in the Acquired Fund Trust's
Charter or the Acquiring Fund Trust's Charter. A copy of the Acquired Fund's
Charter is on file at the office of the Secretary of the Commonwealth of
Massachusetts. The execution and delivery of this Agreement by such officers
shall not be deemed to have been made by any of them individually or to impose
any liability on any of them personally, but shall bind only the property of the
Acquired Fund or the Acquiring Fund, as the case may be.
IN WITNESS WHEREOF, the Acquired Fund Trust and the Acquiring Fund Trust
each have caused this Agreement and Plan of Reorganization to be executed and
attested on its behalf by its duly authorized representatives as of the date
first above written.
THE ADVISORS' INNER CIRCLE FUND,
on behalf of Analytic Defensive Equity Fund
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Title: President
----------------------------
ATTEST:
---------------------------
Name:
-----------------------------
Title:
----------------------------
OLD MUTUAL ADVISOR FUNDS,
on behalf of Old Mutual Analytic Defensive Equity Fund
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Title: President
----------------------------
ATTEST: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Title: Secretary
----------------------------