EXHIBIT 4
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the "Agreement") is made as
of ___________, 2006, between BB&T Funds ("BB&T"), a Massachusetts business
trust, on behalf of Sterling Capital Small Cap Value Fund, a series of BB&T, and
The Advisors' Inner Circle Fund ("Advisors"), a Massachusetts business trust, on
behalf of the Sterling Capital Small Cap Value Fund, a series of Advisors. The
capitalized terms used herein shall have the meaning ascribed to them in this
Agreement.
PLAN OF REORGANIZATION
(a) Advisors will sell, assign, convey, transfer and deliver to BB&T,
and BB&T will acquire, on the Exchange Date, all of the properties and assets
existing at the Valuation Time in the Sterling Capital Small Cap Value Fund, a
series of Advisors (the "Sterling Fund"). Such acquisition is to be made by the
Sterling Capital Small Cap Value Fund, a series of BB&T (the "BB&T Fund").
In consideration therefor, the BB&T Fund shall, on the Exchange Date,
assume all of the liabilities of the Sterling Fund existing at the Valuation
Time and transfer to the Sterling Fund a number of full and fractional units of
beneficial interest ("Shares") (such Shares being Sterling Shares) of the BB&T
Fund having an aggregate net asset value equal to the value of all of the assets
of the Sterling Fund transferred to the BB&T Fund on such date less the value of
all of the liabilities of the Sterling Fund assumed by the BB&T Fund on that
date. It is intended that the reorganization described in this Agreement shall
be a tax-free reorganization under Section 368 of the Internal Revenue Code of
1986, as amended (the "Code").
(b) Upon consummation of the transactions described in paragraph (a) of
this Agreement, the Sterling Fund in complete liquidation shall distribute to
its respective shareholders of record as of the Exchange Date the BB&T Fund
Shares received by it, each shareholder being entitled to receive that number of
BB&T Fund Shares equal to the total of (i) the proportion which the number of
Shares of the Sterling Fund held by such shareholder bears to the number of such
Shares of the Sterling Fund outstanding on such date multiplied by (ii) the
total number of BB&T Fund Shares received by the Sterling Fund, as of the
Exchange Date. Sterling Fund shareholders of record holding Institutional Class
Shares will receive Sterling Shares of the BB&T Fund.
AGREEMENT
BB&T and Advisors represent, warrant and agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF ADVISORS. Each of Advisors and the
Sterling Fund represent and warrant to and agree with BB&T and the BB&T Fund
that:
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(a) Advisors is a business trust duly established and validly existing
under the laws of the Commonwealth of Massachusetts and has power to carry on
its business as it is now conducted and to carry out its obligations under this
Agreement. Advisors and the Sterling Fund are not required to qualify as a
foreign association in any jurisdiction where the failure to so qualify would
have a material adverse effect on Advisors or the Sterling Fund. Advisors and
the Sterling Fund have all necessary federal, state and local authorizations to
carry on their business as now being conducted and to fulfill the terms of this
Agreement, except for shareholder approval and as otherwise described in Section
1(l).
(b) Advisors is registered under the Investment Company Act of 1940, as
amended (the "1940 Act"), as an open-end management investment company, and such
registration has not been revoked or rescinded and is in full force and effect,
and the Sterling Fund is a separate series thereof duly designated in accordance
with the applicable provisions of the 1940 Act and the Declaration of Trust and
Bylaws of Advisors. The Sterling Fund has met the requirements of subchapter M
of the Code for treatment as a "regulated investment company" within the meaning
of Section 851 of the Code in respect of each taxable year since the
commencement of operations, and will continue to meet such requirements at all
times through the Exchange Date. The Sterling Fund has not at any time since its
inception been liable for any material income or excise tax pursuant to Section
852 or 4982 of the Code. The Sterling Fund is in compliance in all material
respects with applicable regulations of the Internal Revenue Service pertaining
to the reporting of dividends and other distributions on and redemptions of its
capital stock and to withholding in respect of dividends and other distributions
to shareholders, and is not liable for any material penalties which could be
imposed thereunder.
(c) The statement of assets and liabilities, statement of operations,
statement of changes in net assets and schedule of portfolio investments
(indicating their market values) for the Sterling Fund at and for the year ended
October 31, 2005, such statements and schedule having been audited by KPMG LLP,
independent accountants to Advisors, have been furnished to BB&T. Such statement
of assets and liabilities and schedule fairly presents the financial position of
the Sterling Fund as of October 31, 2005 and said statement of operations and
changes in net assets fairly reflects the results of operations and changes in
net assets for the periods covered thereby in conformity with generally accepted
accounting principles.
(d) The prospectus of the Sterling Fund dated March 1, 2006 (the
"Sterling Prospectus") and the Statement of Additional Information dated March
1, 2006 (the "Sterling SAI") for the Sterling Fund and on file with the
Securities and Exchange Commission, which have been previously furnished to
BB&T, did not as of their dates and do not as of the date hereof 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 they were made, not misleading.
(e) There are no material legal, administrative or other proceedings
pending or, to the knowledge of Advisors or the Sterling Fund, overtly
threatened against Advisors or the Sterling Fund which assert liability on the
part of Advisors or the Sterling Fund.
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(f) There are no material contracts outstanding to which Advisors, with
respect to the Sterling Fund, or the Sterling Fund is a party, other than as
disclosed in the Sterling Prospectus and the Sterling SAI or in the Registration
Statement and the Proxy Statement.
(g) Neither Advisors, with respect to the Sterling Fund, nor the
Sterling Fund has any known liabilities of a material nature, contingent or
otherwise, other than those shown as belonging to it on its statement of assets
and liabilities as of October 31, 2005, and those incurred in the ordinary
course of Advisors' business as an investment company since that date. Prior to
the Exchange Date, Advisors will advise BB&T of all known material liabilities,
contingent or otherwise, incurred by it, with respect to the Sterling Fund
subsequent to October 31, 2005, whether or not incurred in the ordinary course
of business.
(h) As used in this Agreement, the term "Investments" shall mean the
Sterling Fund's investments shown on the schedule of its portfolio investments
as of October 31, 2005, referred to in Section 1(c) hereof, as supplemented with
such changes as Advisors or the Sterling Fund shall make after October 31, 2005,
which changes shall be disclosed to BB&T, and changes resulting from stock
dividends, stock split-ups, mergers and similar corporate actions.
(i) As of the Exchange Date, the Sterling Fund shall have timely filed
all federal, state and other tax returns and reports which have been required to
be filed by the Sterling Fund and shall have timely paid all federal, state and
other taxes shown to be due on said returns or on any assessments received by
the Sterling Fund. As of the Exchange Date, all tax liabilities of the Sterling
Fund shall have been adequately provided for on its books, and no tax deficiency
or liability of the Sterling Fund shall have been asserted, and no question with
respect thereto shall have been raised, and the Sterling Fund shall 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.
(j) As of both the Valuation Time and the Exchange Date and except for
shareholder approval and otherwise as described in Section 1(l), Advisors on
behalf of the Sterling Fund will have full right, power and authority to sell,
assign, transfer and deliver the Investments and any other assets and
liabilities of the Sterling Fund to be transferred to the BB&T Fund pursuant to
this Agreement. At the Exchange Date, subject only to the delivery of the
Investments and any such other assets and liabilities as contemplated by this
Agreement, BB&T will, on behalf of the BB&T Fund, acquire the Investments and
any such other assets subject to no encumbrances, liens or security interests in
favor of any third party creditor of Advisors or the Sterling Fund and, except
as described in Section 1(l), without any restrictions upon the transfer
thereof.
(k) Except as to Investments otherwise disclosed as unregistered
securities pursuant to Section 1(h) hereof, no registration under the Securities
Act of 1933, as amended (the "1933 Act"), of any of the Investments would be
required if they were, as of the time of such transfer, the subject of a public
distribution by either of Advisors or BB&T.
(l) No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by Advisors on behalf of
the Sterling Fund of the transactions contemplated by this Agreement, except
such as may be required under the 1933 Act, the
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Securities Exchange Act of 1934, as amended (the "1934 Act"), the 1940 Act,
state securities or blue sky laws (which term as used herein shall include the
laws of the District of Columbia and of Puerto Rico) or the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976 (the "H-S-R Act").
(m) The registration statement (the "Registration Statement") filed
with the Securities and Exchange Commission (the "Commission") by BB&T on Form
N-14 relating to the BB&T Fund Shares issuable hereunder, and the proxy
statement of Advisors included therein (the "Proxy Statement"), on the effective
date of the Registration Statement and insofar as they relate to Advisors and
the Sterling Fund, (i) will 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 and (ii) will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which such
statements were made, not misleading; and at the time of the shareholders'
meeting referred to in Section 8(a) below and on the Exchange Date, the
prospectus contained in the Registration Statement of which the Proxy Statement
is a part (the "Prospectus"), as amended or supplemented by any amendments or
supplements filed with the Commission by BB&T, insofar as it relates to Advisors
and the Sterling Fund, will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which such
statements were made, not misleading; provided, however, that none of the
representations and warranties in this subsection shall apply to statements in
or omissions from the Registration Statement, the Prospectus or the Proxy
Statement, made in reliance upon or in conformity with information furnished by
BB&T, or the BB&T Fund, for use in the Registration Statement, Prospectus, or
Proxy Statement.
(n) All of the issued and outstanding Shares of the Sterling Fund have
been offered for sale and sold in conformity with all applicable federal and
state securities laws.
(o) No payments will be made by the Sterling Fund to its shareholders
in connection with or as a result of this Agreement or the transactions
contemplated by this Agreement, except that the Sterling Fund will, in the
ordinary course of its business as an open-end investment company, make
distributions of dividends paying out investment income or capital gains, and
distributions in redemption of Shares.
(p) The Sterling Fund has not received written notification from any
tax authority that asserts a position contrary to any of the above
representations.
2. REPRESENTATIONS AND WARRANTIES OF BB&T. Each of BB&T and the BB&T
Fund jointly and severally represent and warrant to and agree with Advisors and
the Sterling Fund that:
(a) BB&T is a business trust duly established and validly existing
under the laws of the Commonwealth of Massachusetts and has power to carry on
its business as it is now being conducted and to carry out its obligations under
this Agreement. BB&T and the BB&T Fund are
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not required to qualify as a foreign association in any jurisdiction. BB&T and
the BB&T Fund have all necessary federal, state and local authorizations to own
all of its properties and assets and to carry on its business as now being
conducted and to fulfill the terms of this Agreement, except as set forth in
Section 2(g).
(b) BB&T is registered under the 1940 Act as an open-end management
investment company, and such registration has not been revoked or rescinded and
is in full force and effect, and the BB&T Fund is a separate series thereof duly
designated in accordance with the applicable provisions of the 1940 Act and the
Declaration of Trust and Bylaws of BB&T. The BB&T Fund, which has not had active
operations prior to the Exchange Date, intends to qualify as a regulated
investment company under Part I of Subchapter M of the Code.
(c) There are no material legal, administrative or other proceedings
pending or, to the knowledge of BB&T or the BB&T Fund, overtly threatened
against BB&T or the BB&T Fund which assert liability on the part of BB&T or the
BB&T Fund.
(d) There are no material contracts outstanding to which BB&T or the
BB&T Fund is a party, other than as disclosed in the Prospectus and the
corresponding Statement of Additional Information or in the Registration
Statement.
(e) Neither BB&T nor the BB&T Fund has any known liabilities of a
material nature, contingent or otherwise, other than those incurred in the
ordinary course of the business of BB&T as an investment company. Prior to the
Exchange Date, BB&T will advise Advisors of all known material liabilities,
contingent or otherwise, incurred by it and the BB&T Fund, whether or not
incurred in the ordinary course of business.
(f) No consent, approval, authorization or order of any governmental
authority is required for the consummation by BB&T or the BB&T Fund of the
transactions contemplated by this Agreement, except such as may be required
under the 1933 Act, the 1934 Act, the 1940 Act, state securities or Blue Sky
laws or the H-S-R Act.
(g) As of both the Valuation Time and the Exchange Date and otherwise
as described in Section 2(g), BB&T on behalf of the BB&T Fund will have full
right, power and authority to purchase the Investments and any other assets and
assume the liabilities of the Sterling Fund to be transferred to the BB&T Fund
pursuant to this Agreement.
(h) The Registration Statement, the Prospectus and the Proxy Statement,
on the effective date of the Registration Statement and insofar as they relate
to BB&T and the BB&T Fund: (i) will 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 and (ii) will 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 in which
they were made, not misleading; and at the time of the shareholders' meeting
referred to in Section 8(a) and at the Exchange Date, the Prospectus, as amended
or supplemented by any amendments or supplements filed with the Commission by
BB&T or the BB&T Fund, will not contain any
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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 in which they were made, not misleading; provided, however, that
none of the representations and warranties in this subsection shall apply to
statements in or omissions from the Registration Statement, the Prospectus or
the Proxy Statement or any amendments or supplements thereto made in reliance
upon and in conformity with information furnished by Advisors or the Sterling
Fund for use in the Registration Statement, the Prospectus or the Proxy
Statement. For these purposes, information shall be permitted "on behalf" of
Advisors or the Sterling Fund if furnished by it or an affiliate or by another
person with the approval of Advisors or the Sterling Fund or their affiliate.
(i) BB&T Fund Shares to be issued to the Sterling Fund have been duly
authorized and, when issued and delivered pursuant to this Agreement and the
Prospectus, will be legally and validly issued and will be fully paid and
nonassessable by BB&T and no shareholder of BB&T will have any preemptive right
of subscription or purchase in respect thereof.
(j) The issuance of BB&T Fund Shares pursuant to this Agreement will be
in compliance with all applicable federal and state securities laws.
(k) Immediately prior to the consummation of the transactions
contemplated by this Agreement, the BB&T Fund will not hold any property or have
any tax attributes (including those specified in Section 381(c) of the Code),
and immediately following the consummation of such transactions, the BB&T Fund
will possess solely assets and liabilities that were possessed by the Sterling
Fund immediately prior to such transactions, provided however that at the time
of or before such transactions, the BB&T Fund may hold a nominal amount of
assets to facilitate its organization.
(l) Immediately prior to the consummation of the transactions
contemplated by this Agreement, there shall be no issued and outstanding Shares
of the BB&T Fund (and no options, warrants, or other rights to subscribe for or
purchase Shares of the BB&T Fund, or securities convertible into Shares of the
BB&T Fund) other than a nominal amount of Shares issued to facilitate the
organization of the BB&T Fund. In connection with the transactions contemplated
by this Agreement all of the BB&T Fund Shares that are or will be issued (other
than a nominal amount of Shares of the BB&T Fund that may be issued to
facilitate the organization of the BB&T Fund) will be in respect of Sterling
Fund Shares. Immediately following consummation of the transactions contemplated
by the Agreement, all of the outstanding Shares of the BB&T Fund will be owned
by the former shareholders of the Sterling Fund (other than a nominal amount of
Shares of the BB&T Fund that may be issued to facilitate the organization of the
BB&T Fund), who will own such shares solely by reason of their ownership of
Shares of the Sterling Fund immediately prior to the transactions contemplated
by this Agreement.
(m) The BB&T Fund was formed for the purpose of effecting the
transactions contemplated by this Agreement and will not engage in any business
prior to the transactions contemplated by this Agreement. The BB&T Fund has
never held, and will not hold prior to the transactions contemplated by this
Agreement, directly or indirectly, any Sterling Fund Shares.
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(n) The BB&T Fund has not yet filed its first federal income tax
return, and, thus, has not yet elected to be a regulated investment company for
federal income tax purposes. The BB&T Fund will file its first income tax return
at the completion of its first taxable year as a regulated investment company
and until such time will take all steps necessary to ensure qualification as a
regulated investment company under Sections 851 and 852 of the Code.
(o) No payments will be made by the BB&T Fund to its shareholders in
connection with or as a result of this Agreement or the transactions
contemplated by this Agreement, except that the BB&T Fund will, in the ordinary
course of its business as an open-end investment company, make distributions of
dividends paying out investment income or capital gains, and distributions in
redemption of Shares.
(p) BB&T through its administrator, transfer agent, custodian or
otherwise, will cooperate fully and in a timely manner with Advisors and the
Sterling Fund in completing each of the actions required of it and its agents
and necessary for consummation of the transactions described in Sections 3 (a)
and (b) of this Agreement.
3. REORGANIZATION. (a) Subject to the requisite approval of the
shareholders of the Sterling Fund and to the other terms and conditions
contained herein, Advisors and the Sterling Fund agree to sell, assign, convey,
transfer and deliver to the BB&T Fund, and the BB&T Fund agrees to acquire from
the Sterling Fund, on the Exchange Date all of the Investments, all of the cash,
property, rights, privileges, powers, franchises and other assets, know or
unknown, of the Sterling Fund in exchange for that number of Shares of the BB&T
Fund provided for in Section 4 and the assumption by the BB&T Fund of all of the
liabilities of, allocated or attributable to, the Sterling Fund, whether known
or unknown, accrued or unaccrued, absolute or contingent or conditional or
unmatured. Without limiting the foregoing, BB&T agrees to assume the obligation
of Advisors to indemnify and hold harmless the trustees and officers of Advisors
with respect to any action or omission or alleged action or omission relating to
the Sterling Fund prior to the consummation of the transactions described in
paragraph (a) of this Agreement, including the obligation to advance expenses,
to the maximum extent permitted by applicable law and as set forth in Advisors'
Declaration of Trust and By-laws. Pursuant to this Agreement, the Sterling Fund
will, as soon as practicable after the Exchange Date, distribute in liquidation
all of the BB&T Fund Shares received by it to its shareholders in exchange for
their Shares of the Sterling Fund.
(b) Advisors, on behalf of the Sterling Fund, will pay or cause to be
paid to the BB&T Fund any interest and cash dividends received by it on or after
the Exchange Date with respect to the Investments transferred to the BB&T Fund
hereunder. Advisors, on behalf of the Sterling Fund, will transfer to the BB&T
Fund any rights, stock dividends or other securities received by Advisors or the
Sterling Fund after the Exchange Date as stock dividends or other distributions
on or with respect to the Investments transferred, which rights, stock dividends
and other securities shall be deemed included in the assets transferred to the
BB&T Fund at the Exchange Date and shall not be separately valued, in which case
any such distribution that remains unpaid
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as of the Exchange Date shall be included in the determination of the value of
the assets of the Sterling Fund acquired by the BB&T Fund.
4. EXCHANGE DATE; VALUATION TIME. On the Exchange Date, BB&T will
deliver to Advisors a number of Sterling Shares of the BB&T Fund having an
aggregate net asset value equal to the value of the assets attributable to the
Institutional Class Shares of the Sterling Fund acquired by the BB&T Fund, less
the value of the liabilities of the Sterling Fund assumed, determined as
hereafter provided in this Section 4.
(a) Subject to Section 4(d) hereof, the value of the Sterling Fund's
net assets will be computed as of the Valuation Time using the valuation
procedures for the BB&T Fund set forth in the Prospectus and Statement of
Additional Information.
(b) Subject to Section 4(d) hereof, the net asset value of a share of
the BB&T Fund will be determined to the nearest full cent as of the Valuation
Time, using the valuation procedures set forth in the Prospectus.
(c) Subject to Section 4(d), the Valuation Time shall be 4:00 p.m.
Eastern Standard time on ______________ for the Sterling Fund, or such earlier
or later days as may be mutually agreed upon in writing by the parties hereto
(the "Valuation Time").
(d) No formula will be used to adjust the net asset value of the
Sterling Fund or BB&T Fund to take into account differences in realized and
unrealized gains and losses.
(e) The BB&T Fund shall issue its Shares to the Sterling Fund on one
share deposit receipt registered in the name of the Sterling Fund. The Sterling
Fund shall distribute in liquidation the BB&T Fund Shares received by it
hereunder pro rata to its shareholders by redelivering such share deposit
receipt to BB&T 's transfer agent which will as soon as practicable set up open
accounts for the Sterling Fund shareholder in accordance with written
instructions furnished by Advisors.
(f) The BB&T Fund shall assume all liabilities of the Sterling Fund, as
set forth in Section 3(a) hereof, in connection with the acquisition of assets
and subsequent dissolution of the Sterling Fund or otherwise, except that
recourse for assumed liabilities relating to the Sterling Fund will be limited
to the BB&T Fund.
5. EXPENSES, FEES, ETC. (a) Subject to subsections 5(b) through 5(e),
all fees and expenses, including accounting expenses, portfolio transfer taxes
(if any) or other similar expenses incurred directly in connection with the
consummation by BB&T, the BB&T Fund, Advisors, the Sterling Fund and Sterling
Capital Management LLC, the investment adviser to the BB&T Fund and the Sterling
Fund, of the transactions contemplated by this Agreement will be borne by
Sterling Capital Management LLC, including the costs of proxy materials, proxy
solicitation, and legal expenses. All such fees and expenses incurred and so
borne by Sterling Capital Management LLC shall be solely and directly related to
the transactions contemplated by this Agreement and shall be paid directly by
Sterling Capital Management LLC to the relevant
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providers of services or other payees, in accordance with the principles set
forth in Revenue Ruling 73-54, 1973-1 C.B. 187. Fees and expenses not incurred
directly in connection with the consummation of the transactions contemplated by
this Agreement will be borne by the party incurring such fees and expenses.
Notwithstanding the foregoing, expenses will in any event be paid by the party
directly incurring such expenses if and to the extent that the payment by the
other party of such expenses would result in the disqualification of the BB&T
Fund or the Sterling Fund, as the case may be, as a "regulated investment
company" within the meaning of Section 851 of the Code. Sterling Fund
shareholders will pay their respective expenses, if any, incurred in connection
with the transactions contemplated by this Agreement. Neither the BB&T Fund nor
the Sterling Fund will pay the Sterling Fund shareholders' expenses.
(b) In the event the transactions contemplated by this Agreement are
not consummated by reason of Advisors being either unwilling or unable to go
forward (other than by reason of the nonfulfillment or failure of any condition
to Advisors' obligations referred to in Section 8(a) or Section 10), Advisors
shall pay directly all reasonable fees and expenses incurred by BB&T in
connection with such transactions, including, without limitation, legal,
accounting and filing fees.
(c) In the event the transactions contemplated by this Agreement are
not consummated by reason of BB&T being either unwilling or unable to go forward
(other than by reason of the nonfulfillment or failure of any condition to
BB&T's obligations referred to in Section 8(a) or Section 9), BB&T shall pay
directly all reasonable fees and expenses incurred by Advisors in connection
with such transactions, including without limitation legal, accounting and
filing fees.
(d) In the event the transactions contemplated by this Agreement are
not consummated for any reason other than (i) BB&T or Advisors being either
unwilling or unable to go forward or (ii) the nonfulfillment or failure of any
condition to Advisors or BB&T's obligations referred to in Section 8(a), Section
9 or Section 10 of this Agreement, then each of Advisors and BB&T shall bear the
expenses it has actually incurred in connection with such transactions.
(e) Notwithstanding any other provisions of this Agreement, if for any
reason the transactions contemplated by this Agreement are not consummated, no
party shall be liable to the other party for any damages resulting therefrom,
including without limitation consequential damages, except as specifically set
forth above.
6. PERMITTED ASSETS. BB&T and Advisors agree to review the assets of
the Sterling Fund to ensure that at any time prior to the Exchange Date the
assets of the Sterling Fund do not include any assets that the BB&T Fund is not
permitted, or reasonably believes to be unsuitable for it, to acquire, including
without limitation any security that, prior to its acquisition by the Sterling
Fund, is unsuitable for the BB&T Fund to acquire.
7. EXCHANGE DATE. Delivery of the assets of the Sterling Fund to be
transferred, assumption of the liabilities of the Sterling Fund to be assumed,
and the delivery of BB&T Fund Shares to be issued shall be made on ___________
at 10:00 a.m. or at such other times and dates
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agreed to by Advisors and BB&T, the date and time upon which such delivery is to
take place being referred to herein as the "Exchange Date."
8. SPECIAL MEETING OF SHAREHOLDERS; DISSOLUTION. (a) Advisors agrees to
call a special meeting of the shareholders of the Sterling Fund as soon as is
practicable after the effective date of the Registration Statement for the
purpose of considering the sale of all of the assets of the Sterling Fund to and
the assumption of all of the liabilities of the Sterling Fund by the BB&T Fund
as herein provided, approving this Agreement, and authorizing the liquidation
and dissolution of the Sterling Fund, and, except as set forth in Section 13, it
shall be a condition to the obligations of each of the parties hereto that the
holders of the Shares of the Sterling Fund shall have approved this Agreement
and the transactions contemplated herein in the manner required by law and
Advisors' Declaration of Trust and Bylaws at such a meeting on or before the
Valuation Time.
(b) Advisors and the Sterling Fund agree that the liquidation of the
Sterling Fund will be effected in the manner provided in Advisors' Declaration
of Trust and Bylaws in accordance with applicable law, that it will not make any
distributions of any BB&T Fund Shares to the shareholders of the Sterling Fund
without first paying or adequately providing for the payment of all of the
Sterling Fund's known debts, obligations and liabilities.
(c) Each of BB&T and Advisors will cooperate with the other, and each
will furnish to the other the information relating to itself required by the
1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder
to be set forth in the Registration Statement, including the Prospectus and the
Proxy Statement.
9. CONDITIONS TO BB&T'S OBLIGATIONS. The obligations of BB&T and the
BB&T Fund hereunder shall be subject to the following conditions:
(a) That this Agreement shall have been approved and the transactions
contemplated hereby, including the liquidation of the Sterling Fund, shall have
been approved by the shareholders of the Sterling Fund in the manner required by
law.
(b) Advisors shall have furnished to BB&T a statement of the Sterling
Fund's assets and liabilities, with values determined as provided in Section 4
of this Agreement, together with a list of Investments with their respective tax
costs, all as of the Valuation Time, certified on Advisors' behalf by its
President (or any Vice President) and Chief Financial Officer, and a certificate
of both such officers, dated the Exchange Date, to the effect that as of the
Valuation Time and as of the Exchange Date there has been no material adverse
change in the financial position of the Sterling Fund since October 31, 2005,
other than changes in the Investments since that date or changes in the market
value of the Investments, or changes due to net redemptions of Shares of the
Sterling Fund, dividends paid or losses from operations.
(c) As of the Valuation Time and as of the Exchange Date, all
representations and warranties of Advisors and the Sterling Fund made in this
Agreement are true and correct in all material respects as if made at and as of
such dates, Advisors and the Sterling Fund have
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complied with all the agreements and satisfied all the conditions on their part
to be performed or satisfied at or prior to each of such dates, and Advisors
shall have furnished to BB&T a statement, dated the Exchange Date, signed by
Advisors' President (or any Vice President) and Treasurer certifying those facts
as of such dates.
(d) Advisors shall have delivered to BB&T a letter from KPMG LLP dated
the Exchange Date stating that such firm reviewed the federal and state income
tax returns of the Sterling Fund for the year ended October 31, 2005 and that,
in the course of such review, nothing came to their attention which caused them
to believe that such returns did not properly reflect, in all material respects,
the federal and state income taxes of the Sterling Fund for the periods covered
thereby, or that the Sterling Fund would not qualify as a regulated investment
company for federal income tax purposes.
(e) There shall not be any material litigation pending with respect to
the matters contemplated by this Agreement.
(f) BB&T shall have received an opinion of Xxxxxx, Xxxxx & Xxxxxxx LLP,
in form reasonably satisfactory to BB&T and dated the Exchange Date, to the
effect that (i) Advisors is a business trust validly existing in conformity with
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 presently conducted,
and the Sterling Fund is a separate series thereof duly constituted in
accordance with the applicable provisions of the 1940 Act and the Declaration of
Trust and Bylaws of Advisors; (ii) this Agreement has been duly authorized,
executed, and delivered by Advisors on behalf of the Sterling Fund and, assuming
that the Registration Statement, the Prospectus and the Proxy Statement comply
with the 1933 Act, the 1934 Act and the 1940 Act and assuming due authorization,
execution and delivery of this Agreement by BB&T, is a valid and binding
obligation of Advisors with respect to the Sterling Fund, enforceable against
the Sterling Fund in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, moratorium, fraudulent conveyance and similar
laws relating to or affecting creditors' rights generally and court decisions
with respect thereto; (iii) Advisors has power to sell, assign, convey, transfer
and deliver the Investments and other assets contemplated hereby and, upon
consummation of the transactions contemplated hereby in accordance with the
terms of this Agreement, Advisors and the Sterling Fund will have duly sold,
assigned, conveyed, transferred and delivered such Investments and other assets
to BB&T; (iv) the execution and delivery of this Agreement did not, and the
consummation of the transactions contemplated hereby will not, violate Advisors'
Declaration of Trust and Bylaws or any provision of an agreement known to such
counsel to which Advisors, with respect to the Sterling Fund, is a party or by
which it is bound or, to the knowledge of such counsel, result in the
acceleration of any obligations or the imposition of any penalty under any
agreement, judgment, or decree to which the Sterling Fund is a party or by which
it is bound; (v) to such counsel's knowledge, no consent, approval,
authorization or order of any court or governmental authority is required for
the consummation by Advisors on behalf of the Sterling Fund of the transactions
contemplated hereby, 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 or
blue sky laws and the H-S-R Act; (vi) to such counsel's knowledge, there is no
legal, administrative or
11
governmental proceeding, investigation, order, decree or judgment of any court
or governmental body, only insofar as they relate to the Sterling Fund or its
assets or properties, pending, threatened or otherwise existing on or before the
effective date of the Registration Statement or the Exchange 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 Sterling Fund's business; (vii)
Advisors 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 (viii) to the
knowledge of such counsel, except as has been disclosed in writing to the BB&T
Fund, no litigation or administrative proceeding or investigation of or before
any court or governmental body is presently pending or threatened as to the
Sterling Fund or any of its properties or assets or any person whom the Sterling
Fund may be obligated to indemnify in connection with such litigation,
proceeding or investigation, and the Sterling Fund is not a party to or subject
to the provisions of any order, decree or judgment of any court or governmental
body, which materially and adversely affects its business or its ability to
consummate the transactions contemplated hereby.
(g) BB&T shall have received an opinion of Ropes & Xxxx LLP, counsel to
BB&T, addressed to BB&T and the BB&T Fund, in form reasonably satisfactory to
BB&T and dated the Exchange Date (which opinion will be based upon certain
factual representations and subject to certain qualifications), to the effect
that, on the basis of the existing provisions of the Code, Treasury regulations,
current administrative rules and court decisions, generally, for federal income
tax purposes: (i) the transfer of all of the assets of the Sterling Fund to the
BB&T Fund in exchange solely for the BB&T Fund Shares and the assumption by the
BB&T Fund of the liabilities of the Sterling Fund, followed by the distribution
by the Sterling Fund of the BB&T Fund Shares to the Sterling Fund shareholders
in complete liquidation of the Sterling Fund, will constitute a "reorganization"
as defined in Section 368(a) of the Code, and the Sterling Fund and the BB&T
Fund will each be "a party to a reorganization" within the meaning of Section
368(b) of the Code; (ii) no gain or loss will be recognized by the BB&T Fund
upon the receipt of the assets of the Sterling Fund in exchange for BB&T Fund
Shares and the assumption by the BB&T Fund of the liabilities of the Sterling
Fund; (iii) the basis in the hands of the BB&T Fund of the assets of the
Sterling Fund transferred to the BB&T Fund will be the same as the basis of such
assets in the hands of the Sterling Fund immediately prior to the transfer; (iv)
the holding periods of the assets of the Sterling Fund in the hands of the BB&T
Fund will include the periods during which such assets were held by the Sterling
Fund; (v) no gain or loss will be recognized by the Sterling Fund upon the
transfer of the Sterling Fund's assets to the BB&T Fund in exchange for BB&T
Fund Shares and the assumption by the BB&T Fund of the liabilities of the
Sterling Fund, or upon the distribution of BB&T Fund Shares by the Sterling Fund
to its shareholders in liquidation pursuant to this Agreement; (vi) no gain or
loss will be recognized by the Sterling Fund shareholders upon the exchange of
their Sterling Fund Shares for BB&T Fund Shares; (vii) the aggregate basis of
the BB&T Fund Shares a Sterling Fund shareholder receives in connection with the
transactions contemplated by this Agreement will be the same as the aggregate
basis of his or her Sterling Fund Shares exchanged therefor; (viii) a Sterling
Fund shareholder's holding period for his or her BB&T Fund Shares will be
determined by including the period for which he or she held the Sterling Fund
Shares exchanged therefor, provided that he or she held such
12
Sterling Fund Shares as capital assets; and (ix) the BB&T Fund will succeed to
and take into account the items of the Sterling Fund described in Section 381(c)
of the Code.
(h) Subject to the parties' compliance with Section 6 hereof, the
assets of the Sterling Fund to be acquired by the BB&T Fund will include no
assets which the BB&T Fund, by reason of limitations contained in its
Declaration of Trust or of investment restrictions disclosed in the Prospectus
in effect on the Exchange Date, may not properly acquire. BB&T shall not change
the BB&T Declaration of Trust and the Prospectus so as to restrict permitted
investments for the BB&T Fund except as required by the Commission or any state
regulatory authority.
(i) The Registration Statement shall have become effective under the
1933 Act and applicable Blue Sky provisions, and no stop order suspending such
effectiveness shall have been instituted or, to the knowledge of BB&T,
contemplated by the Commission and or any state regulatory authority.
(j) All proceedings taken by Advisors in connection with the
transactions contemplated by this Agreement and all documents incidental thereto
reasonably shall be satisfactory in form and substance to BB&T.
(k) Advisors shall have furnished to BB&T a certificate, signed by the
President (or any Vice President) and the Chief Financial Officer of Advisors,
as to the tax cost to Advisors of the securities delivered to BB&T pursuant to
this Agreement, together with any such other evidence as to such tax cost as
BB&T may reasonably request.
(l) The Sterling Fund's custodian shall have delivered to BB&T a
certificate identifying all of the assets of the Sterling Fund held by such
custodian as of the Valuation Time.
(m) The Sterling Fund's transfer agent shall have provided to BB&T's
transfer agent (i) the originals or true copies of all of the records of the
Sterling Fund in the possession of such Sterling transfer agent as of the
Exchange Date, (ii) a record specifying the number of Shares of the Sterling
Fund outstanding as of the Valuation Time and (iii) a record specifying the name
and address of each holder of record of any such Shares of the Sterling Fund and
the number of Shares held of record by each such shareholder as of the Valuation
Time. Sterling's transfer agent shall also have provided BB&T with a certificate
confirming that the acts specified in the preceding sentence have been taken and
that the information so supplied is complete and accurate to the best knowledge
of the transfer agent.
(n) All of the issued and outstanding Shares of the Sterling Fund shall
have been offered for sale and sold in conformity with all applicable federal or
state securities or blue sky laws and, to the extent that any audit of the
records of Advisors or the Sterling Fund or its transfer agent by BB&T or its
agents shall have revealed otherwise, either (i) Advisors and the Sterling Fund
shall have taken all actions that in the reasonable opinion of BB&T are
necessary to remedy any prior failure on the part of Advisors to have offered
for sale and sold such Sterling Fund Shares in conformity with such laws or (ii)
Advisors shall have furnished (or caused to be furnished) surety, or deposited
(or caused to be deposited) assets in escrow, for the benefit of BB&T in
13
amounts sufficient and upon terms satisfactory, in the opinion of BB&T or its
counsel, to indemnify BB&T against any expense, loss, claim, damage or liability
whatsoever that may be asserted or threatened by reason of such failure on the
part of Advisors to have offered and sold such Sterling Fund Shares in
conformity with such laws.
(o) BB&T shall have received from KPMG LLP a letter addressed to BB&T
dated as of the Exchange Date reasonably satisfactory in form and substance to
BB&T and Advisors to the effect that, on the basis of limited procedures agreed
upon by BB&T and Advisors and described in such letter (but not an examination
in accordance with generally accepted auditing standards), as of the Valuation
Time the value of the assets of the Sterling Fund to be exchanged for the Shares
have been determined in accordance with the valuation procedures for the BB&T
Fund as set forth in the Prospectus and Statement of Additional Information.
(p) Advisors shall have duly executed and delivered to BB&T bills of
sale, assignments, certificates and other instruments of transfer ("Transfer
Documents") as BB&T may deem necessary or desirable to transfer all of Advisors'
and the Sterling Fund's entire right, title and interest in and to the
Investments and all other assets of the Sterling Fund.
10. CONDITIONS TO ADVISORS' OBLIGATIONS. The obligations of Advisors
and the Sterling Fund hereunder shall be subject to the following conditions:
(a) This Agreement shall have been adopted and the transactions
contemplated hereby, including the liquidation of the Sterling Fund, shall have
been approved by the shareholders of the Sterling Fund in the manner required by
law.
(b) BB&T shall have executed and delivered to Advisors an Assumption of
Liabilities dated as of the Exchange Date pursuant to which the BB&T Fund will
assume all of the liabilities of the Sterling Fund existing at the Valuation
Time in connection with the transactions contemplated by this Agreement.
(c) As of the Valuation Time and as of the Exchange Date, all
representations and warranties of BB&T and the BB&T Fund made in this Agreement
are true and correct in all material respects as if made at and as of such
dates, BB&T and the BB&T Fund has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied at or
prior to each of such dates, and BB&T shall have furnished to Advisors a
statement, dated the Exchange Date, signed by BB&T's President (or any Vice
President) and Treasurer certifying those facts as of such dates.
(d) There shall not be any material litigation pending with respect to
the matters contemplated by this Agreement.
(e) Advisors shall have received an opinion of Ropes & Xxxx LLP, in
form reasonably satisfactory to Advisors and dated the Exchange Date, to the
effect that (i) BB&T is a business trust validly existing in conformity with 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 presently
14
conducted, and the BB&T Fund is a separate series thereof duly constituted in
accordance with the applicable provisions of the 1940 Act and the Declaration of
Trust and Bylaws of BB&T; (ii) the BB&T Fund Shares to be delivered to Advisors
as provided for by this Agreement are duly authorized and upon such delivery
will be validly issued and will be fully paid and nonassessable by BB&T and no
shareholder of BB&T has any preemptive right to subscription or purchase in
respect thereof; (iii) this Agreement has been duly authorized, executed and
delivered by BB&T and, assuming that the Prospectus, the Registration Statement
and the Proxy Statement comply with the 1933 Act, the 1934 Act and the 1940 Act
and assuming due authorization, execution and delivery of this Agreement by
Advisors, is a valid and binding obligation of BB&T; (iv) the execution and
delivery of this Agreement did not, and the consummation of the transactions
contemplated hereby will not, violate BB&T's Declaration of Trust, as amended,
or Bylaws, or any provision of any agreement known to such counsel to which BB&T
or the BB&T Fund is a party or by which it is bound, it being understood that
with respect to investment restrictions as contained in BB&T's Declaration of
Trust, as amended, Bylaws or the Prospectus, such counsel may rely upon a
certificate of an officer of BB&T whose responsibility it is to advise BB&T with
respect to such matters; (v) no consent, approval, authorization or order of any
court or governmental authority is required for the consummation by BB&T or the
BB&T 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 or blue sky laws and the H-S-R Act; (vi) BB&T 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 (vii) to the knowledge of
such counsel, except as has been disclosed in writing to the Sterling Fund, no
litigation or administrative proceeding or investigation of or before any court
or governmental body is presently pending or threatened as to the BB&T Fund or
any of its properties or assets or any person whom the BB&T Fund may be
obligated to indemnify in connection with such litigation, proceeding or
investigation, and the BB&T Fund is not a party to or subject to the provisions
of any order, decree or judgment of any court or governmental body, which
materially and adversely affects its business or its ability to consummate the
transactions contemplated hereby.
(f) Advisors shall have received an opinion of Ropes & Xxxx LLP
addressed to Advisors and the Sterling Fund, in a form reasonably satisfactory
to Advisors and dated the Exchange Date (which opinion will be based upon
certain factual representations and subject to certain qualifications), to the
effect that, on the basis of the existing provisions of the Code, Treasury
regulations, current administrative rules and court decisions, generally, for
federal income tax purposes: (i) the transfer of all of the assets of the
Sterling Fund to the BB&T Fund in exchange solely for the BB&T Fund Shares and
the assumption by the BB&T Fund of the liabilities of the Sterling Fund,
followed by the distribution by the Sterling Fund of the BB&T Fund Shares to the
Sterling Fund shareholders in complete liquidation of the Sterling Fund, will
constitute a "reorganization" as defined in Section 368(a) of the Code, and the
Sterling Fund and the BB&T Fund will each be "a party to a reorganization"
within the meaning of Section 368(b) of the Code; (ii) no gain or loss will be
recognized by the BB&T Fund upon the receipt of the assets of the Sterling Fund
in exchange for BB&T Fund Shares and the assumption by the BB&T Fund of the
liabilities of the Sterling Fund; (iii) the basis in the hands of the BB&T Fund
of the assets of
15
the Sterling Fund transferred to the BB&T Fund will be the same as the basis of
such assets in the hands of the Sterling Fund immediately prior to the transfer;
(iv) the holding periods of the assets of the Sterling Fund in the hands of the
BB&T Fund will include the periods during which such assets were held by the
Sterling Fund; (v) no gain or loss will be recognized by the Sterling Fund upon
the transfer of the Sterling Fund's assets to the BB&T Fund in exchange for BB&T
Fund Shares and the assumption by the BB&T Fund of the liabilities of the
Sterling Fund or upon the distribution of BB&T Fund Shares by the Sterling Fund
to its shareholders in liquidation pursuant to this Agreement; (vi) no gain or
loss will be recognized by the Sterling Fund shareholders upon the exchange of
their Sterling Fund Shares for BB&T Fund Shares; (vii) the aggregate basis of
the BB&T Fund Shares a Sterling Fund shareholder receives in connection with the
transactions contemplated by this Agreement will be the same as the aggregate
basis of his or her Sterling Fund Shares exchanged therefor; (viii) a Sterling
Fund shareholder's holding period for his or her BB&T Fund Shares will be
determined by including the period for which he or she held the Sterling Fund
Shares exchanged therefor, provided that he or she held such Sterling Fund
Shares as capital assets; and (ix) the BB&T Fund will succeed to and take into
account the items of the Sterling Fund described in Section 381(c) of the Code.
(g) All proceedings taken by BB&T in connection with the transactions
contemplated by this Agreement and all documents incidental thereto shall be
reasonably satisfactory in form and substance to Advisors.
(h) The Registration Statement shall have become effective under the
1933 Act and applicable Blue Sky provisions, and no stop order suspending such
effectiveness shall have been instituted or, to the knowledge of BB&T,
contemplated by the Commission or any state regulatory authority.
(i) At the Exchange Date, the Sterling Fund will have sold such of its
assets, if any, if informed by BB&T in writing that such sale is necessary to
assure that, after giving effect to the acquisition of the assets pursuant to
this Agreement, the BB&T Fund designated as a "diversified company" will remain
a "diversified company" within the meaning of Section 5(b)(1) of the 1940 Act
and in compliance with such other mandatory investment restrictions as are set
forth in the BB&T Prospectus previously furnished to Advisors.
(j) All fees and expenses, as specified in Section 5 hereof, shall be
paid in full by Sterling Capital Management LLC.
11. INDEMNIFICATION. (a) Advisors will indemnify and hold harmless
BB&T, its trustees and its officers (for purposes of this subsection, the
"Indemnified Parties") against any and all expenses, losses, claims, damages and
liabilities at any time imposed upon or reasonably incurred by any one or more
of the Indemnified Parties in connection with, arising out of, or resulting from
any claim, action, suit or proceeding in which any one or more of the
Indemnified Parties may be involved or with which any one or more of the
Indemnified Parties may be threatened by reason of any untrue statement or
alleged untrue statement of a material fact relating to Advisors or the Sterling
Fund contained in the Registration Statement, the Prospectus or the Proxy
Statement or any amendment or supplement to any of the foregoing, or arising out
16
of or based upon the omission or alleged omission to state in any of the
foregoing a material fact relating to Advisors or the Sterling Fund required to
be stated therein or necessary to make the statements relating to Advisors or
the Sterling Fund therein not misleading, including, without limitation, any
amounts paid by any one or more of the Indemnified Parties in a reasonable
compromise or settlement of any such claim, action, suit or proceeding, or
threatened claim, action, suit or proceeding made with the prior consent of
Advisors. The Indemnified Parties will notify Advisors in writing within ten
days after the receipt by any one or more of the Indemnified Parties of any
notice of legal process or any suit brought against or claim made against such
Indemnified Party as to any matters covered by this Section 11(a). Advisors
shall be entitled to participate at its own expense in the defense of any claim,
action, suit or proceeding covered by this Section 11(a), or, if it so elects,
to assume at its expense by counsel satisfactory to the Indemnified Parties the
defense of any such claim, action, suit or proceeding, and if Advisors elects to
assume such defense, the Indemnified Parties shall be entitled to participate in
the defense of any such claim, action, suit or proceeding at their expense.
Advisors' and the Sterling Fund's obligation under this Section 11(a) to
indemnify and hold harmless the Indemnified Parties shall constitute a guarantee
of payment so that the Sterling Fund will pay in the first instance any
expenses, losses, claims, damages and liabilities required to be paid by them
under this Section 11(a) without the necessity of the Indemnified Parties' first
paying the same.
(b) BB&T will indemnify and hold harmless Advisors, its directors and
its officers (for purposes of this subsection, the "Indemnified Parties")
against any and all expenses, losses, claims, damages and liabilities at any
time imposed upon or reasonably incurred by any one or more of the Indemnified
Parties in connection with, arising out of, or resulting from any claim, action,
suit or proceeding in which any one or more of the Indemnified Parties may be
involved or with which any one or more of the Indemnified Parties may be
threatened by reason of any untrue statement or alleged untrue statement of a
material fact relating to BB&T or the BB&T Fund contained in the Registration
Statement, the Prospectus or the Proxy Statement, or any amendment or supplement
to any of the foregoing, or arising out of or based upon the omission or alleged
omission to state in any of the foregoing a material fact relating to BB&T or
the BB&T Fund required to be stated therein or necessary to make the statements
relating to BB&T or the BB&T Fund therein not misleading, including, without
limitation, any amounts paid by any one or more of the Indemnified Parties in a
reasonable compromise or settlement of any such claim, action, suit or
proceeding, or threatened claim, action, suit or proceeding made with the prior
consent of BB&T. The Indemnified Parties will notify BB&T in writing within ten
days after the receipt by any one or more of the Indemnified Parties of any
notice of legal process or any suit brought against or claim made against such
Indemnified Party as to any matters covered by this Section 11(b). BB&T shall be
entitled to participate at its own expense in the defense of any claim, action,
suit or proceeding covered by this Section 11(b), or, if it so elects, to assume
at its expense by counsel satisfactory to the Indemnified Parties the defense of
any such claim, action, suit or proceeding, and, if BB&T elects to assume such
defense, the Indemnified Parties shall be entitled to participate in the defense
of any such claim, action, suit or proceeding at their own expense. The BB&T
Fund's obligation under this Section 11(b) to indemnify and hold harmless the
Indemnified Parties shall constitute a guarantee of payment so that the BB&T
Fund will pay in the first instance any expenses, losses, claims, damages and
liabilities required to be
17
paid by them under this Section 11(b) without the necessity of the Indemnified
Parties' first paying the same.
12. NO BROKER, ETC. Each of BB&T and Advisors represents that there is
no person who has dealt with it who by reason of such dealings is entitled to
any broker's or finder's or other similar fee or commission arising out of the
transactions contemplated by this Agreement.
13. TERMINATION. BB&T and Advisors may, by mutual consent of their
respective trustees, terminate this Agreement, and BB&T or Advisors, after
consultation with counsel and by consent of their respective trustees and
directors or an officer authorized by such trustees or directors, may waive any
condition to their respective obligations hereunder. If the transactions
contemplated by this Agreement have not been substantially completed by
____________, this Agreement shall automatically terminate on that date unless a
later date is agreed to by BB&T and Advisors.
14. COVENANTS, ETC. DEEMED MATERIAL. All covenants, agreements,
representations and warranties made under this Agreement and any certificates
delivered pursuant to this Agreement shall be deemed to have been material and
relied upon by each of the parties, notwithstanding any investigation made by
them or on their behalf.
15. SOLE AGREEMENT; AMENDMENTS. This Agreement supersedes all previous
correspondence and oral communications between the parties regarding the subject
matter hereof, constitutes the only understanding with respect to such subject
matter, may not be changed except by a letter of agreement signed by each party
hereto, and shall be construed in accordance with and governed by the laws of
the Commonwealth of Massachusetts.
16. BB&T AGREEMENT AND DECLARATION OF TRUST. BB&T is a business trust
organized under Massachusetts law and under a Declaration of Trust, to which
reference is hereby made and a copy of which is on file at the office of the
Secretary of The Commonwealth of Massachusetts and elsewhere as required by law,
and to any and all amendments thereto so filed or hereafter filed. The
obligations of BB&T or BB&T Fund entered into in the name or on behalf thereof
by any of the Trustees, officers, employees or agents are made not individually,
but in such capacities, and are not binding upon any of the Trustees, officers,
employees, agents or shareholders of BB&T personally, but bind only the assets
of BB&T and all persons dealing with any series or funds of BB&T, such as the
BB&T Fund, with respect to all obligations contained in this Agreement, must
look solely to the assets of BB&T belonging to such series or fund for the
enforcement of any claims against BB&T.
17. ADVISORS AGREEMENT AND DECLARATION OF TRUST. Advisors is a business
trust organized under Massachusetts law and under a Declaration of Trust, to
which reference is hereby made and a copy of which is on file at the office of
the Secretary of The Commonwealth of Massachusetts and elsewhere as required by
law, and to any and all amendments thereto so filed or hereafter filed. The
obligations of Advisors or Sterling Fund entered into in the name or on behalf
thereof by any of the Trustees, officers, employees or agents are made not
individually, but in such capacities, and are not binding upon any of the
Trustees, officers, employees, agents
18
or shareholders of Advisors personally, but bind only the assets of Advisors and
all persons dealing with any series or funds of Advisors, such as the Sterling
Fund, with respect to all obligations contained in this Agreement, must look
solely to the assets of Advisors belonging to such series or fund for the
enforcement of any claims against Advisors.
[Signature Page Follows]
19
This Agreement may be executed in any number of counter-parts, each of
which, when executed and delivered, shall be deemed to be an original.
THE ADVISORS' INNER CIRCLE FUND,
on behalf of the Sterling Capital Small
Cap Value Fund
By:
------------------------------
Name:
Title:
BB&T FUNDS,
on behalf of the Sterling Capital Small
Cap Value Fund
By:
------------------------------
Name:
Title:
20
