EXHIBIT 4
XXXXX FARGO FUNDS TRUST
AND
THE ADVISORS' INNER CIRCLE FUND
AGREEMENT AND
PLAN OF
REORGANIZATION
Dated as of March 29, 2004
This AGREEMENT AND PLAN OF REORGANIZATION (the "Plan") is made as of this 29th
day of March, 2004, by and between Xxxxx Fargo Funds Trust ("Xxxxx Fargo
Funds"), a Delaware statutory trust, for itself and on behalf of three of its
series which are listed in the Acquiring Funds column below (each an "Acquiring
Fund") and The Advisors' Inner Circle Fund, a Massachusetts business trust (the
"AIC Trust"), acting for itself and on behalf of three of its series which are
listed in the Acquired Funds column below (each an "Acquired Fund") and (as to
Section 21 only) Xxxxx Fargo Funds Management, LLC ("WFFM"), a Delaware limited
liability company.
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Acquired Funds Acquiring Funds
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C&B Large Cap Value Portfolio Xxxxx Fargo C&B Large Cap Value Fund
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C&B Mid Cap Value Portfolio Xxxxx Fargo C&B Mid Cap Value Fund
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C&B Tax-Managed Value Portfolio Xxxxx Fargo C&B Tax-Managed Value Fund
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WHEREAS, WFFM, on the one hand, and Xxxxx & Xxxxxx, X.X. ("C&B"), a
Pennsylvania limited partnership, on the other hand, have entered into an
agreement dated as of March 9, 2004 which, among other things, provides for both
parties to support the reorganization of the Acquired Funds into the Acquiring
Funds (the "Adoption Agreement");
WHEREAS, Xxxxx Fargo Funds and AIC Trust are open-end management investment
companies registered with the Securities and Exchange Commission (the "SEC")
under the Investment Company Act of 1940 (the "1940 Act");
WHEREAS, the parties desire that each Acquiring Fund acquire the assets and
assume the liabilities of the Acquired Fund listed above opposite the Acquiring
Fund ("Corresponding Acquired Fund") in exchange for shares of equal value of
the Acquiring Fund and the distribution of the shares of the Acquiring Fund to
the shareholders of the Corresponding Acquired Fund in connection with the
liquidation and termination of the Corresponding Acquired Fund (each transaction
between an Acquiring Fund and its Corresponding Acquired Fund, a
"Reorganization"); and
WHEREAS, the parties intend that each Reorganization qualify as a
"reorganization," within the meaning of Section 368(a) of the Internal Revenue
Code of 1986 (the "Code"), and that each Acquiring Fund and its Corresponding
Acquired Fund be a "party to a reorganization," within the meaning of Section
368(b) of the Code, with respect to that Reorganization;
NOW, THEREFORE, in accordance with the mutual promises described herein,
the parties agree as follows:
1. Definitions.
The following terms shall have the following meanings:
1933 Act..................... The Securities Act of 1933.
1934 Act..................... The Securities Exchange Act of 1934.
Acquired Fund Class.......... The Acquired Fund share class set forth
opposite an Acquiring Fund Class in the
Corresponding Classes Table on Schedule A.
Acquiring Fund Class......... The class of an Acquiring Fund's shares that
Xxxxx Fargo Funds will issue to the
shareholders of the Corresponding Acquired Fund
Class as set forth in the Corresponding Classes
Table on Schedule A.
Acquired Fund Financial
Statements................... The audited financial statements of each
Acquired Fund for its most recently completed
fiscal year and, if applicable, the unaudited
financial statements of each Acquired Fund for
its most recently completed semi-annual period.
Acquiring Fund Financial
Statements................... The audited financial statements of each
Acquiring Fund for its most recently completed
fiscal year and, if applicable, the unaudited
financial statements of each Acquiring Fund for
its most recently completed semi-annual period.
Assets....................... All property and assets of any kind and all
interests, rights, privileges and powers of or
attributable to an Acquired Fund, whether or
not determinable at the appropriate Effective
Time and wherever located. Assets include all
cash, cash equivalents, securities, claims
(whether absolute or contingent, Known or
unknown, accrued or unaccrued or conditional or
unmatured), contract rights and receivables
(including dividend and interest receivables)
owned by an Acquired Fund and any deferred or
prepaid expense shown as an asset on the
Acquired Fund's books.
Closing Date................. Expected July 2004, or such other time as the
parties may agree to in writing with respect to
a Reorganization.
Effective Time............... 9:00 a.m. Eastern Time on the business day
following the Closing Date of a Reorganization,
or such other time and date as the parties may
agree to in writing.
Fund......................... An Acquiring Fund or an Acquired Fund.
HSR Act...................... The Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976.
Know, Known or Knowledge..... Known after reasonable inquiry.
Liabilities.................. All liabilities of, allocated or attributable
to, a Fund, whether Known or unknown, accrued
or unaccrued, absolute or contingent or
conditional or unmatured.
Material Agreements.......... The agreements set forth on Schedule B, as may
be amended from time to time.
N-1A Registration Statement.. The Registration Statement of Xxxxx Fargo Funds
on Form N-1A under the 1933 Act and the 1940
Act that will register the shares of each
Acquiring Fund to be issued commencing on the
Closing Date.
N-14 Registration Statement.. The Registration Statement on Form N-14 under
the 1933 Act and the 1940 Act that will
register the shares of each Acquiring Fund to
be issued in the Reorganizations and will
include the proxy materials necessary for the
shareholders of the Corresponding Acquired
Funds to approve the Reorganizations.
Reorganization Documents..... Such bills of sale, assignments, and other
instruments of transfer as Xxxxx Fargo Funds
and AIC Trust deems desirable for an Acquired
Fund to transfer to an Acquiring Fund all right
and title to and interest in the Corresponding
Acquired Fund's Assets and Liabilities and for
the Acquiring Fund to assume the Corresponding
Acquired Fund's Assets and Liabilities.
Schedule A................... Schedule A to this Plan.
Schedule B................... Schedule B to this Plan, as may be amended from
time to time.
Valuation Time............... The time on the Reorganization's Closing Date,
the business day immediately preceding the
Closing Date if the Closing Date is not a
business day or such other time and date as the
parties may agree to in writing, that Xxxxx
Fargo Funds determines the net asset value of
the shares of the Acquiring Fund and AIC Trust
determines the net value of the Assets of or
attributable to the Corresponding Acquired
Fund. Unless otherwise agreed to in writing,
the Valuation Time of a Reorganization shall be
at the time of day then set forth in the
Acquiring Fund's and the Acquired Fund's
Registration Statement on Form N-1A as the time
of day at which net asset value is calculated.
2. Regulatory Filings and Shareholder Action.
(a) Xxxxx Fargo Funds shall promptly prepare and file the Form N-14
Registration Statement with the SEC. Xxxxx Fargo Funds also shall promptly
prepare and file an amendment to its Registration Statement with the SEC on Form
N-1A to register the shares of the Acquiring Funds to be issued commencing on
the Closing Date. Xxxxx Fargo Funds shall make any other required filings
including, without limitation, filings with state securities regulatory
authorities.
(b) AIC Trust shall assist Xxxxx Fargo Funds in preparing the Form
N-14 Registration Statement.
(c) The parties shall seek orders of the SEC, if appropriate,
providing them with any necessary relief from the 1940 Act to permit them to
consummate the transactions contemplated by this Plan.
(d) As soon as practicable after the effective date of the Form N-14
Registration Statement, each Acquired Fund shall hold a meeting of its
shareholders to consider and approve this Plan, the Reorganization and such
other matters as the Board of Trustees of the Acquired Fund may determine.
3. Transfer of Acquired Fund Assets. AIC Trust, on behalf of each
Acquired Fund, and Xxxxx Fargo Funds shall take the following steps with respect
to each Reorganization:
(a) On or prior to the Closing Date, AIC Trust shall endeavor to pay
or make reasonable provision to pay out of the Acquired Fund's Assets all of the
Liabilities, expenses, costs and charges of or attributable to the Acquired Fund
that are Known to AIC Trust and that are due and payable as of the Closing Date.
(b) At the Effective Time, AIC Trust shall assign, transfer, deliver
and convey all of the Acquired Fund's Assets to the Acquiring Fund. Xxxxx Fargo
Funds shall then accept the Acquired Fund's Assets and assume the Acquired
Fund's Liabilities such that at and after the Effective Time (i) all of the
Acquired Fund's Assets at or after the Effective Time shall become and be the
Assets of the Acquiring Fund and (ii) all of the Acquired Fund's Liabilities at
the Effective Time shall attach to the Acquiring Fund, and be enforceable
against the Acquiring Fund to the same extent as if initially incurred by the
Acquiring Fund. Without limiting the foregoing, Xxxxx Fargo Funds agree to
assume the obligation of AIC Trust to indemnify and hold harmless the trustees
and officers of AIC Trust with respect to any action or omission or alleged
action or omission relating to any of the Acquired Funds prior to the
Reorganization, including the obligation to advance expenses, to the maximum
extent permitted by applicable law and as set forth in AIC Trust's Declaration
of Trust and By-Laws, provided, however, that AIC Trust first shall use
reasonable efforts to have any such costs paid by insurance available to the
trustees and officers of AIC Trust.
(c) AIC Trust shall assign, transfer, deliver and convey the Acquired
Fund's Assets to the corresponding Acquiring Fund at the Reorganization's
Effective Time on the following bases:
(1) In exchange for the transfer of the Assets, Xxxxx Fargo
Funds shall simultaneously issue and deliver to the Acquired Fund full and
fractional shares of beneficial interest of the corresponding Acquiring
Class. Xxxxx Fargo Funds shall determine the number of shares of each
Acquiring Class to issue by dividing the net value of the Assets
attributable to the Corresponding Acquired Fund Class by the net asset
value of one Acquiring Class share. Based on this calculation, Xxxxx Fargo
Funds shall issue shares of beneficial interest of each Acquiring Class
with an aggregate net asset value equal to the net value of the Assets of
the Corresponding Acquired Fund Class.
(2) The parties shall determine the net asset value of the
Acquiring Fund shares to be delivered, and the net value of the Assets to
be conveyed, as of the Valuation Time substantially in accordance with
Xxxxx Fargo Funds current valuation procedures, a copy of which has been
furnished to AIC Trust. The parties shall make all computations to the
fourth decimal place or such other decimal place as the parties may agree
to in writing.
(3) AIC Trust shall cause its custodian to transfer the Assets
with good and marketable title to the custodian for the account of the
Acquiring Fund. AIC Trust shall cause its custodian to transfer all cash in
the form of immediately available funds payable to the order of the Xxxxx
Fargo Funds' custodian for the account of the Acquiring Fund. AIC Trust
shall cause its custodian to transfer any Assets that were not transferred
to the Acquiring Fund's custodian at the Effective Time to the Xxxxx Fargo
Funds' custodian at the earliest practicable date thereafter.
(d) Promptly after the Closing Date, AIC Trust will deliver to Xxxxx
Fargo Funds an unaudited Statement of Assets and Liabilities of the Acquired
Fund as of the Closing Date.
4. Liquidation and Termination of Acquired Funds, Registration of Shares
and Access to Records. AIC Trust, on behalf of each of the Acquired Funds, and
Xxxxx Fargo Funds, shall take the following steps with respect to each
Reorganization:
(a) At or as soon as reasonably practical after the Effective Time,
AIC Trust shall dissolve and liquidate the Acquired Fund in accordance with
applicable law and its Declaration of Trust by transferring to shareholders of
record of the Corresponding Acquired Fund Class full and fractional shares of
beneficial interest of the corresponding Acquiring Class equal in value, as of
the Valuation Time, to the shares of the
Corresponding Acquired Fund Class held by the shareholder. Each shareholder also
shall have the right to receive from the Acquiring Fund after the Effective Time
any unpaid dividends or other distributions that AIC Trust declared with respect
to the shareholder's Corresponding Acquired Fund shares before the Effective
Time. Xxxxx Fargo Funds shall record on its books the ownership by the
shareholders of the respective Acquiring Fund shares; AIC Trust shall
simultaneously redeem and cancel on its books all of the issued and outstanding
shares of each Corresponding Acquired Fund Class. Xxxxx Fargo Funds does not
issue certificates, and shall not be responsible to issue certificates to
shareholders of the Acquired Fund. AIC Trust shall wind up the affairs of the
Acquired Fund and shall take all steps as are necessary and proper to terminate
the Acquired Fund as soon as is reasonably possible after the Effective Time and
in accordance with all applicable laws and regulations.
(b) If a former Acquired Fund shareholder requests a change in the
registration of the shareholder's Acquiring Fund shares to a person other than
the shareholder, Xxxxx Fargo Funds shall require the shareholder to (i) furnish
Xxxxx Fargo Funds an instrument of transfer properly endorsed, accompanied by
any required signature guarantees and otherwise in proper form for transfer;
(ii) if any of the shares are outstanding in certificated form, deliver to Xxxxx
Fargo Funds the certificate representing such shares; and (iii) pay to the
Acquiring Fund any transfer or other taxes required by reason of such
registration or establish to the reasonable satisfaction of Xxxxx Fargo Funds
that such tax has been paid or does not apply.
(c) From the date of this Plan until the Closing Date, AIC Trust shall
afford the officers, agents, attorneys, accountants and other authorized
representatives of Xxxxx Fargo Funds reasonable access upon reasonable notice
and during normal business hours and accompanied by an authorized representative
of AIC Trust to personnel, offices, properties, books and records of AIC Trust
insofar as they relate to the Acquired Funds and, as applicable, direct the
service providers of the Acquired Funds to do the same, so that Xxxxx Fargo
Funds may have full opportunity to make such reasonable investigation as it
shall desire to make of the management, business, properties and affairs of the
Acquired Funds, and Xxxxx Fargo Funds shall be permitted to make abstracts from,
or copies of, all such books and records.
(d) At and after the Closing Date, AIC Trust shall provide Xxxxx Fargo
Funds and its transfer agent with immediate access to: (i) all records
containing the names, addresses and taxpayer identification numbers of all of
the Acquired Fund shareholders and the number and percentage ownership of the
outstanding shares of the Corresponding Acquired Fund Classes owned by each
shareholder as of the Effective Time and (ii) all original documentation
(including all applicable Internal Revenue Service forms, certificates,
certifications and correspondence) relating to the Acquired Fund shareholders'
taxpayer identification numbers and their liability for or exemption from
back-up withholding. Prior to the Closing Date, AIC Trust shall direct each of
its service providers that maintain records with respect to the Acquired Fund as
required by Section 31 of, and Rules 31a-1 and 31a-2 under, the 1940 Act to
continue to preserve and maintain such records as required by such Section and
Rules, unless Xxxxx Fargo Funds
direct in writing that such records be delivered to Xxxxx Fargo Funds or a
service provider to the Xxxxx Fargo Funds. As soon as practicable following the
Reorganization with respect to the Acquired Fund, AIC Trust shall deliver all
books and records with respect to the Acquired Fund in its possession to Xxxxx
Fargo Funds and Xxxxx Fargo Funds shall thereafter have the responsibility to
preserve and maintain, or to cause its service providers to preserve and
maintain, all such records received by it in accordance with Section 31 of, and
Rule 31a-1 and 31a-2 under, the 1940 Act.
5. Certain Representations, Warranties and Agreements of AIC Trust. AIC
Trust, on behalf of itself and each of its Acquired Funds, represents and
warrants to, and agrees with, Xxxxx Fargo Funds as follows:
(a) AIC Trust is a business trust duly created, validly existing and
in good standing under the laws of the Commonwealth of Massachusetts. The Board
of Trustees of AIC Trust duly established and designated the Acquired Funds as
series of AIC Trust. The AIC Trust is registered with the SEC as an open-end
management investment company under the 1940 Act, and such registration is in
full force and effect.
(b) AIC Trust has the power and all necessary federal, state and local
qualifications and authorizations to own all of its properties and Assets, to
carry on its business as now being conducted and described in its currently
effective Registration Statement on Form N-1A, to enter into this Plan and to
consummate the transactions contemplated herein.
(c) The Board of Trustees of AIC Trust has duly authorized the
execution and delivery of the Plan and the transactions contemplated herein.
Duly authorized officers of AIC Trust have executed and delivered the Plan. The
Plan represents a valid and binding contract, enforceable in accordance with its
terms, subject as to enforcement to bankruptcy, insolvency, reorganization,
arrangement, moratorium, and other similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles. The
execution and delivery of this Plan does not, and, subject to the approval of
shareholders referred to in Section 2, the consummation of the transactions
contemplated by this Plan will not, violate AIC Trust's Declaration of Trust or
By-Laws or any Material Agreement. Except for the approval of the Acquired Fund
shareholders, AIC Trust does not need to take any other action to authorize its
officers to effectuate this Plan and the transactions contemplated herein.
(d) The Acquired Fund has qualified as a "regulated investment
company" under Part I of Subchapter M of Subtitle A, Chapter 1, of the Code (a
"RIC") in respect of each taxable year since the commencement of its operations
and will not undertake any action which would cause it to fail to qualify as a
regulated investment company under the Code between the date hereof and the
Effective Time.
(e) The Form N-14 Registration Statement, when filed with the SEC,
when distributed to shareholders and at the time of the Acquired Fund
shareholder meeting for
the Reorganization and at the Effective Time of the Reorganization, insofar as
it contains information about AIC Trust and the Acquired Fund: (i) shall comply
in all material respects with the applicable provisions of the 1933 Act, the
1934 Act and the 1940 Act, the rules and regulations thereunder and state
securities laws and (ii) shall 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 made therein not misleading in light of the circumstances
under which they were made.
(g) AIC Trust has duly authorized and validly issued all of the issued
and outstanding shares of the Acquired Fund and all of the shares are validly
outstanding, fully paid and non-assessable by AIC Trust, and were offered for
sale and sold in conformity with the registration requirements of all applicable
federal and state securities laws. There are no outstanding options, warrants or
other rights to subscribe for or purchase the Acquired Fund shares, nor are
there any securities convertible into Acquired Fund shares.
(h) AIC Trust, with respect to the Acquired Fund, is in compliance in
all material respects with all applicable laws, rules and regulations,
including, without limitation, the 1940 Act, the 1933 Act, the 1934 Act and all
applicable state securities laws. AIC Trust, with respect to the Acquired Fund,
is in compliance in all material respects with the investment policies and
restrictions applicable to it set forth in its Form N-1A Registration Statement
currently in effect. The performance record of the Acquired Fund as set forth in
its Form N-1A Registration Statement is true and correct and has been prepared
in accordance with the requirements of the SEC with respect to standardized
performance information. The value of the net assets of the Acquired Fund is
determined using portfolio valuation methods that comply in all material
respects with the requirements of the 1940 Act and the policies of the Acquired
Fund and all purchases and redemptions of Acquired Fund shares have been
effected at the net asset value per share calculated in such a manner.
(i) Except as otherwise provided herein, AIC Trust shall operate the
business of the Acquired Fund in the ordinary course between the date hereof and
the Effective Time, it being agreed that such ordinary course of business will
include the declaration and payment of dividends and distributions pursuant to
standard dividend and distribution policies approved by the Acquired Fund's
Board of Trustees prior to the date of this Plan, and any other dividends and
distributions deemed advisable by mutual agreement of the Acquired Fund and
Xxxxx Fargo Funds in anticipation of the Reorganization. Notwithstanding the
foregoing, AIC Trust shall: (i) use its best efforts to cause each
Reorganization to qualify, and will not (whether before or after consummation of
the Reorganization) take any actions that could prevent a Reorganization from
qualifying as a "reorganization" under the provisions of Section 368 of the
Code; and (ii) take all other appropriate actions necessary to ensure
satisfaction of representations in certificates to be provided to Xxxxxxxx &
Xxxxxxxx LLP in connection with their opinion described in Sections 7(g) and
8(g), regardless of whether any such measures or actions are in the ordinary
course.
(j) At the Effective Time, the Acquired Fund will have good and
marketable title to its Assets and full right, power and authority to assign,
transfer, deliver and convey such Assets.
(k) The Acquired Fund Financial Statements, copies of which have been
previously delivered to Xxxxx Fargo Funds, fairly present the financial position
of the Acquired Fund as of the Acquired Fund's most recent fiscal year-end and
the results of the Acquired Fund's operations and changes in the Acquired Fund's
Known Assets and Known Liabilities, in the ordinary course for the periods
indicated. The Acquired Fund Financial Statements have been prepared in
accordance with generally accepted accounting principles consistently applied.
(l) To the Knowledge of AIC Trust, the Acquired Fund has no
Liabilities, whether or not determined or determinable, other than the
Liabilities disclosed or provided for in the Acquired Fund Financial Statements
or Liabilities incurred in the ordinary course of business subsequent to the
date of this Plan. Without limiting the generality of the previous sentence, the
Acquired Fund has no liabilities to C&B or any other service provider of the
Acquired Fund for fees previously waived or deferred by C&B or any other such
service provider.
(m) AIC Trust does not Know of any claims, actions, suits, inquiries,
investigations or proceedings of any type pending or threatened against the
Acquired Fund or its Assets or businesses. The Acquired Fund does not Know of
any facts that it currently has reason to believe are likely to form the basis
for the institution of any such claim, action, suit, inquiry, investigation or
proceeding against the Acquired Fund. For purposes of this provision, investment
underperformance or negative investment performance shall not be deemed to
constitute such facts, provided all customary performance disclosures have been
made. Neither AIC Trust nor the Acquired Fund is a party to or subject to the
provisions of any order, decree or judgment of any court or governmental body
that adversely affects, or is reasonably likely to adversely affect, its
financial condition, results of operations, business, properties or Assets or
its ability to consummate the transactions contemplated by the Plan.
(n) All contracts, agreements and similar instruments that are
material to AIC Trust's business as it relates to the Acquired Funds are listed
on Schedule B. No material default exists under any contract or agreement listed
on Schedule B. With respect to any contract, agreement or similar instrument
related to the Acquired Funds to which AIC Trust is a party that is not listed
on Schedule B: (i) such instrument was entered into in the ordinary course of
AIC Trust's business; (ii) no material default exists with respect to such
instrument; and (iii) such instrument is not material to the business of AIC
Trust. Nothing in this Section prevents AIC Trust from entering into, amending
or terminating a contract, agreement or instrument after the date of this Plan
if such action is contemplated by this Plan or consistent with AIC Trust's
obligations under this Plan.
(o) AIC Trust has (i) timely filed all of its and its Acquired Fund's
tax returns for all of their taxable years to and including the Acquired Fund's
most recent taxable
year required to be filed on or before the date of this Plan, and has paid all
taxes payable pursuant to such returns; and (ii) made available to Xxxxx Fargo
Funds all of its and its Acquired Fund's previously filed tax returns. To the
Knowledge of the Acquired Fund, no such return is currently under audit and no
assessment has been asserted with respect to such returns. AIC Trust will file
all of its and its Acquired Fund's tax returns for all of their taxable periods
ending on or before the Closing Date not previously filed on or before their due
dates (taking account of any valid extensions thereof).
(p) Since the date of the Acquired Fund Financial Statements, there
has been no material adverse change in the financial condition, results of
operations, business, properties or Assets of the Acquired Fund. For purposes of
this provision, investment underperformance, negative investment performance or
net redemptions shall not be deemed to constitute such facts, provided all
customary performance disclosures have been made.
6. Certain Representations, Warranties and Agreements of Xxxxx Fargo
Funds. Xxxxx Fargo Funds, on behalf of itself and, as appropriate, each
Acquiring Fund, represents and warrants to, and agrees with AIC Trust as
follows:
(a) Xxxxx Fargo Funds is a statutory trust duly created, validly
existing and in good standing under the laws of the State of Delaware. The Board
of Trustees of Xxxxx Fargo Funds duly established and designated the Acquiring
Fund as a series of Xxxxx Fargo Funds and each Acquiring Class as a class of the
Acquiring Fund. Xxxxx Fargo Funds is registered with the SEC as an open-end
management investment company under the 1940 Act, and such registration is in
full force and effect.
(b) Xxxxx Fargo Funds and the Acquiring Fund each has the power and
all necessary federal, state and local qualifications and authorizations to own
all of its properties and assets, to carry on its business as described in its
Registration Statement on Form N-1A as filed with the SEC, to enter into this
Plan and to consummate the transactions contemplated herein.
(c) The Board of Trustees of Xxxxx Fargo Funds has duly authorized the
execution and delivery of the Plan and the transactions contemplated herein.
Duly authorized officers of Xxxxx Fargo Funds have executed and delivered the
Plan. The Plan represents a valid and binding contract, enforceable in
accordance with its terms, subject as to enforcement to bankruptcy, insolvency,
reorganization, arrangement, moratorium and other similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles. The execution and delivery of this Plan does not, and the
consummation of the transactions contemplated by this Plan will not, violate the
Declaration of Trust or By-Laws of Xxxxx Fargo Funds or any Material Agreement.
Xxxxx Fargo Funds does not need to take any other action to authorize its
officers to effectuate the Plan and the transactions contemplated herein.
(d) The Acquiring Fund has qualified as a RIC in respect of each
taxable year since the commencement of its operations and will continue to so
qualify for its current taxable year.
(e) The Form N-14 Registration Statement, when filed with the SEC,
when distributed to shareholders and at the time of the Acquired Fund
shareholder meeting for the Reorganization and at the Effective Time of the
Reorganization, insofar as it relates to the Xxxxx Fargo Funds or the Acquiring
Fund or Acquiring Class: (i) shall comply in all material respects with the
applicable provisions of the 1933 Act, the 1934 Act and the 1940 Act, the rules
and regulations thereunder and state securities laws and (ii) shall 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 made therein
not misleading in light of the circumstances under which they were made.
(f) There shall be no issued and outstanding shares of the Acquiring
Fund prior to the Closing Date other than those issued to a seed capital
investor (which shall be an affiliate of the Acquiring Fund) in order to
commence the operations of the Acquiring Fund.
(g) Xxxxx Fargo Funds shall duly authorize the Acquiring Fund shares
to be issued and delivered to the Acquired Fund as of the Effective Time. When
issued and delivered, the Acquiring Fund shares shall have been registered for
sale under the 1933 Act and qualified under all applicable state securities laws
and shall be duly and validly issued, fully paid and non-assessable, and no
shareholder of the Acquiring Fund shall have any preemptive right of
subscription or purchase in respect of them. There are no outstanding options,
warrants or other rights to subscribe for or purchase the Acquiring Fund shares,
nor are there any securities convertible into Acquiring Fund shares.
(h) At the Effective Time, the Acquiring Fund will be in compliance in
all material respects with all applicable laws, rules and regulations,
including, without limitation, the 1940 Act, the 1933 Act, the 1934 Act, and
with the investment policies and restrictions applicable to it set forth in the
Form N-1A Registration Statement.
(i) Xxxxx Fargo Funds does not Know of any claims, actions, suits,
inquiries, investigations or proceedings of any type pending or threatened
against Xxxxx Fargo Funds or the Acquiring Fund or their assets or businesses.
There are no facts that Xxxxx Fargo Funds currently has reason to believe are
likely to form the basis for the institution of any such claim, action, suit,
inquiry, investigation or proceeding against Xxxxx Fargo Funds or the Acquiring
Fund. For purposes of this provision, investment underperformance or negative
investment performance shall not be deemed to constitute such facts, provided
all customary performance disclosures have been made. Neither Xxxxx Fargo Funds
nor the Acquiring Fund is a party to or subject to the provisions of any order,
decree or judgment of any court or governmental body that adversely affects, or
is reasonably likely to adversely affect, its financial condition, results of
operations,
business, properties or Assets or its ability to consummate the transactions
contemplated by this Plan.
(j) All contracts, agreements and similar instruments that are
material to the Xxxxx Fargo Funds' business are listed on Schedule B. No
material default exists under any contract or agreement listed on Schedule B.
With respect to any contract, agreement or similar instrument to which the Xxxxx
Fargo Funds are a party that is not listed on Schedule B: (i) such instrument
was entered into in the ordinary course of the Xxxxx Fargo Funds' business; (ii)
no material default exists with respect to such instrument; and (iii) such
instrument is not material to the business of the Xxxxx Fargo Funds.
7. Conditions to an Acquired Fund's Obligations. The obligations of an
Acquired Fund with respect to its Reorganization, and the obligations of AIC
Trust with respect to that Reorganization, shall be subject to the following
conditions precedent:
(a) The shareholders of the Acquired Fund shall have approved the
Reorganization in the manner required by the Declaration of Trust and applicable
law. If the Acquired Fund's shareholders fail to approve the Reorganization,
that failure shall release AIC Trust of its obligation under this Plan only with
respect to that Reorganization and not any other Reorganization.
(b) Xxxxx Fargo Funds shall have duly executed and delivered the
Acquiring Fund's Reorganization Documents to the Acquired Fund.
(c) All representations and warranties of Xxxxx Fargo Funds made in
this Plan that apply to the Reorganization shall be true and correct in all
material respects as if made at and as of the Valuation Time and the Effective
Time.
(d) Xxxxx Fargo Funds shall have delivered to AIC Trust a certificate
dated as of the Closing Date and executed in its name by its Secretary or
Treasurer, in a form reasonably satisfactory to AIC Trust, stating that the
representations and warranties of Xxxxx Fargo Funds in this Plan that apply to
the Reorganization are true and correct in all material respects at and as of
the Valuation Time and that it has approved the Acquired Fund's Assets as being
consistent with its investment objectives, policies and restrictions and that
the Acquired Fund's Assets may otherwise be lawfully acquired by the Acquiring
Fund.
(e) AIC Trust shall have received an opinion of Xxxxxxxx & Xxxxxxxx
LLP, as counsel to Xxxxx Fargo Funds, in form and substance reasonably
satisfactory to AIC Trust and dated as of the Closing Date, substantially to the
effect that:
(1) Xxxxx Fargo Funds is a statutory trust duly created, validly
existing and in good standing under the laws of the State of Delaware and
is an open-end, management investment company registered under the 1940
Act;
(2) the shares of the Acquiring Fund to be delivered as provided
for by this Plan are duly authorized and upon delivery will be validly
issued, fully paid and non-assessable by Xxxxx Fargo Funds, provided that
the payments for transfer taxes by shareholders provided for in Section
4(b) of this Plan shall not be deemed to render the shares issued
assessable;
(3) this Plan has been duly authorized, executed and delivered by
Xxxxx Fargo Funds, and the execution and delivery of this Plan did not, and
the consummation of the Reorganization will not, violate the Declaration of
Trust of Xxxxx Fargo Funds or any Material Agreement to which Xxxxx Fargo
Funds is a party or by which it is bound; and
(4) to the Knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority is required
for the consummation by Xxxxx Fargo Funds of the Reorganization, or for the
execution and delivery of Xxxxx Fargo Funds' Reorganization Documents,
except those that have been obtained under the 1933 Act, the 1934 Act, the
1940 Act and the rules and regulations under those Acts or that may be
required under state securities laws, the HSR Act or subsequent to the
Effective Time or when the failure to obtain the consent, approval,
authorization or order would not have a material adverse effect on the
operation of the Acquiring Fund.
In rendering such opinion, such counsel may (i) rely on the opinion of other
counsel to the extent set forth in such opinion, (ii) make assumptions regarding
the authenticity, genuineness and/or conformity of documents and copies thereof
without independent verification thereof, (iii) limit such opinion to applicable
federal and state law, (iv) 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 Plan and (v) rely on certificates
of officers or trustees of Xxxxx Fargo Funds.
(f) AIC Trust shall have received an opinion of Xxxxxxxx, Xxxxxx &
Finger, P.A., addressed to AIC Trust and Xxxxx Fargo Funds, in form and
substance reasonably satisfactory to AIC Trust and Xxxxx Fargo Funds and dated
as of the Closing Date, substantially to the effect that, assuming due
authorization, execution and delivery of this Plan by AIC Trust and Xxxxx Fargo
Funds, the Plan represents a legal, valid and binding contract of the Acquiring
Fund, enforceable in accordance with its terms, subject to the effect of
bankruptcy, insolvency, moratorium, fraudulent conveyance and transfer and
similar laws relating to or affecting creditors' rights generally and court
decisions with respect thereto, and further subject to the application of
equitable principles in any proceeding whether at law or in equity or with
respect to the enforcement of provisions of the Plan and the effect of judicial
decisions which have held that certain provisions are unenforceable when their
enforcement would violate an implied covenant of good faith and fair dealing or
would be commercially unreasonable or when default under the Plan is not
material. In rendering such opinion, such counsel may (i) make assumptions
regarding the authenticity, genuineness and/or conformity of documents and
copies thereof without independent verification thereof, (ii) limit such opinion
to applicable state
law, and (iii) rely on certificates of officers or trustees of AIC Trust and
Xxxxx Fargo Funds.
(g) AIC Trust shall have received an opinion dated as of the Closing
Date of Xxxxxxxx & Xxxxxxxx LLP, upon which the Acquired Fund and its
shareholders may rely, based upon representations reasonably acceptable to
Xxxxxxxx & Xxxxxxxx LLP made in certificates provided to Xxxxxxxx & Xxxxxxxx LLP
by Xxxxx Fargo Funds, AIC Trust, their affiliates and/or principal shareholders,
addressed to AIC Trust and Xxxxx Fargo Funds in a form reasonably satisfactory
to them that the transfer of all of the assets of the Acquired Fund to the
Acquiring Fund solely in exchange for the Acquiring Fund shares, and the
distribution of the Acquiring Fund shares to the shareholders of the Acquired
Fund in complete liquidation of the Acquired Fund, as provided in this Plan,
will constitute a reorganization within the meaning of Section 368(a) of the
Code;
(1) no gain or loss will be recognized by the Acquired Fund upon
the transfer of its assets to the Acquiring Fund solely in exchange for the
Acquiring Fund shares or upon the distribution of the Acquiring Fund shares
in complete liquidation of the Acquired Fund;
(2) no gain or loss will be recognized by the Acquiring Fund upon
receipt of the Acquired Fund Assets solely in exchange for the Acquiring
Fund shares;
(3) no gain or loss will be recognized by an Acquired Fund
shareholder upon the exchange of the Acquired Fund shares held by such
Acquired Fund shareholder solely for Acquiring Fund shares;
(4) the tax basis to the Acquiring Fund of the assets of the
Acquired Fund will be, in each instance, the same as the tax basis of such
assets in the hands of the Acquired Fund immediately prior to the
Reorganization;
(5) the tax basis of the Acquiring Fund shares to be received by
each Acquired Fund shareholder will be the same as the tax basis of the
Acquired Fund shares surrendered in exchange therefor;
(6) the holding period of the Acquiring Fund with respect to the
assets received from the Acquired Fund in the Reorganization will include
the holding period for such assets in the hands of the Acquired Fund;
(7) the holding period of the Acquiring Fund shares to be
received by each Acquired Fund shareholder will include the holding period
for which such Acquired Fund shareholder held the Acquired Fund shares
exchanged therefor provided that such Acquired Fund shares are capital
assets in the hands of such Acquired Fund shareholder as of the Closing
Date; and
(8) the Acquiring Fund will succeed to and take into account the
items of the Acquired Fund described in Section 381(c) of the Code as if
the transactions contemplated by this Plan had not occurred.
(h) AIC Trust shall have received a memorandum addressed to AIC Trust
and Xxxxx Fargo Funds, in form and substance reasonably satisfactory to AIC
Trust and Xxxxx Fargo Funds, prepared by Xxxxxxxx & Xxxxxxxx LLP, or another
person agreed to in writing by the parties, concerning compliance with each
relevant state's securities laws in connection with Xxxxx Fargo Funds' issuance
of Acquiring Fund shares.
(i) The N-1A Registration Statement and the Form N-14 Registration
Statement shall have become effective under the 1933 Act as to the Acquiring
Fund's shares and no stop order suspending the effectiveness of the N-1A
Registration Statement or the Form N-14 Registration Statement shall have been
issued and, to the Knowledge of Xxxxx Fargo Funds, the SEC is not contemplating
issuing such a stop order.
(j) No action, suit or other proceeding shall be threatened or
pending before any court or governmental agency in which it is sought to
restrain or prohibit, or obtain damages or other relief in connection with, the
Reorganization.
(k) The SEC shall not have issued any unfavorable advisory report
under Section 25(b) of the 1940 Act relating to, nor instituted any proceeding
seeking to enjoin consummation of, the Reorganization under Section 25(c) of the
1940 Act.
(l) Xxxxx Fargo Funds shall have performed and complied in all
material respects with each of its agreements and covenants required by this
Plan to be performed or complied with by it prior to or at the Reorganization's
Valuation Time and Effective Time.
(m) AIC Trust shall have received from Xxxxx Fargo Funds a duly
executed instrument, in a form and substance reasonably acceptable to AIC Trust,
whereby the Acquiring Fund assumes all of the Liabilities of or attributable to
the Acquired Fund.
(n) AIC Trust shall have received a letter dated as of the effective
date of the N-14 Registration Statement from KPMG LLP addressed to AIC Trust and
Xxxxx Fargo Funds in form and substance reasonably satisfactory to AIC Trust and
Xxxxx Fargo Funds to the effect that on the basis of limited procedures as
agreed to by AIC Trust and Xxxxx Fargo Funds and described in such letter (but
not an examination in accordance with generally accepted auditing standards):
(1) the data used in the calculation of any expense ratio of the
Acquired Fund and the Acquiring Fund appearing in the N-14 Registration
Statement agree with the underlying accounting records of the Acquired Fund
and the Acquiring Fund, as appropriate, or with written estimates provided
by officers of AIC Trust or Xxxxx Fargo Funds, as appropriate, having
responsibility for financial and reporting matters; and
(2) the information relating to the Acquiring Fund and the
Acquired Fund appearing in the N-14 Registration Statement that is
expressed in dollars or percentages of dollars, if any, has been obtained
from the accounting records of the Acquiring Fund or the Acquired Fund, as
appropriate, or from schedules prepared by officers of AIC Trust or Xxxxx
Fargo Funds, as appropriate, having responsibility for financial and
reporting matters and such information is in agreement with such records or
schedules or with computations made therefrom.
AIC Trust also shall have received a letter dated as of the Closing Date that to
KPMG's Knowledge the letter dated as of the effective date of the N-14
Registration Statement (the "Prior Letter") is true and correct, and no changes
to the Prior Letter are necessary.
(o) Neither party shall have terminated this Plan with respect to the
Reorganization pursuant to Section 11 of this Plan.
(p) As of the Closing Date, there shall have been no material change
in the investment objective, policies and restrictions nor any material increase
in the investment management fees, fee levels payable pursuant to any 12b-1 plan
of distribution or shareholder servicing plan or agreement, other fees payable
for services provided to the Acquiring Fund, or sales loads of the Acquiring
Fund nor any material reduction in the fee waiver or expense reduction
undertakings from those described in the N-1A Registration Statement respecting
the Acquiring Fund and in the Form N-14 Registration Statement.
(q) WFFM, pursuant to Section 21, shall have borne all of the
expenses of the parties incurred by them in connection with the Reorganizations
and with this Plan.
(r) C&B shall have satisfied its financial obligations to SEI
Investments Global Funds Services ("SEI GFS") pursuant to the letter agreement
dated March 24, 2004, with respect to the obligations of the Acquired Funds
arising out of or in connection with the termination of the Administration
Agreement between AIC Trust, on behalf of the Acquired Funds, and SEI GFS dated
November 14, 1991, as amended and restated November 12, 2002. C&B and/or AIC
Trust, as applicable, shall have satisfied their financial obligations, if any,
to all other service providers of the Acquired Funds, with respect to the
obligations of the Acquired Funds arising out of or in connection with the
termination of any agreements with such service providers or the
Reorganizations.
(s) All of the conditions precedent to C&B's obligations under the
Adoption Agreement shall have been satisfied.
8. Conditions to Xxxxx Fargo Funds Obligations. The obligations of an
Acquiring Fund with respect to its Reorganization, and the obligations of Xxxxx
Fargo Funds with respect to that Reorganization, shall be subject to the
following conditions precedent:
(a) The shareholders of the Acquired Fund shall have approved the
Reorganization in the manner required by its Declaration of Trust and applicable
law.
(b) AIC Trust shall have duly executed and delivered the Acquired
Fund Reorganization Documents to Xxxxx Fargo Funds.
(c) All representations and warranties of AIC Trust made in this Plan
that apply to the Reorganization shall be true and correct in all material
respects as if made at and as of the Valuation Time and the Effective Time.
(d) AIC Trust shall have delivered to Xxxxx Fargo Funds a certificate
dated as of the Closing Date and executed in its name by its Treasurer or
Secretary, in a form reasonably satisfactory to Xxxxx Fargo Funds, stating that
the representations and warranties of AIC Trust in this Plan that apply to the
Reorganization are true and correct in all material respects at and as of the
Valuation Time.
(e) Xxxxx Fargo Funds shall have received an opinion of Xxxxxx, Xxxxx
& Xxxxxxx LLP, as counsel to AIC Trust, in form and substance reasonably
satisfactory to Xxxxx Fargo Funds and dated as of the Closing Date,
substantially to the effect that:
(1) AIC Trust is a business trust duly created and validly
existing under the laws of the Commonwealth of Massachusetts and is an
open-end, management investment company registered under the 1940 Act;
(2) this Plan has been duly authorized, executed and delivered
by AIC Trust, and the execution and delivery of this Plan did not, and the
consummation of the Reorganization will not, violate the Declaration of
Trust or By-Laws of AIC Trust or any Material Agreement to which AIC Trust
is a party or by which it is bound; and
(3) to the Knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority is required
for the consummation by AIC Trust of the Reorganization, or the execution
and delivery of AIC Trust Reorganization Documents, except those that have
been obtained under the 1933 Act, the 1934 Act, the 1940 Act and the rules
and regulations under those Acts, or that may be required under state
securities laws, the HSR Act or subsequent to the Effective Time or when
the failure to obtain the consent, approval, authorization or order would
not have a material adverse effect on the operation of the Acquired Fund.
In rendering such opinion, such counsel may (i) rely on the opinion of other
counsel to the extent set forth in such opinion, (ii) make assumptions regarding
the authenticity, genuineness and/or conformity of documents and copies thereof
without independent
verification thereof, (iii) limit such opinion to applicable federal and state
law, (iv) 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 Plan and (v) rely on certificates of officers or
trustees of AIC Trust.
(f) Xxxxx Fargo Funds shall have received an opinion from Xxxxxxx,
Xxxxxx & Finger P.A., addressed to AIC Trust and Xxxxx Fargo Funds in form and
substance reasonably satisfactory to the Xxxxx Fargo Funds and dated as of the
Closing Date, with respect to the matters set forth in Section 7(f).
(g) Xxxxx Fargo Funds shall have received an opinion dated as of the
Closing Date of Xxxxxxxx & Xxxxxxxx LLP, upon which the Acquiring Fund and its
shareholders may rely, based upon representations reasonably acceptable to
Xxxxxxxx & Xxxxxxxx LLP made in certificates provided to Xxxxxxxx & Xxxxxxxx LLP
by Xxxxx Fargo Funds, AIC Trust, their affiliates and/or principal shareholders,
addressed to Xxxxx Fargo Funds and AIC Trust in a form reasonably satisfactory
to the Xxxxx Fargo Funds, substantially to the effect that the Reorganization
with respect to each Acquiring Fund and the Acquired Fund will qualify as a
"reorganization" within the meaning of Section 368(a) of the Code, and that each
Acquiring Fund and the Corresponding Acquired Fund will each be a "party to a
reorganization" within the meaning of Section 368(b) of the Code, with respect
to such Reorganization.
(h) The N-1A Registration Statement and the Form N-14 Registration
Statement shall have become effective under the 1933 Act as to the Acquiring
Fund's shares and no stop order suspending the effectiveness of the N-1A
Registration Statement or the Form N-14 Registration Statement shall have been
issued and, to the Knowledge of Xxxxx Fargo Funds, the SEC is not contemplating
issuing such a stop order.
(i) No action, suit or other proceeding shall be threatened or
pending before any court or governmental agency in which it is sought to
restrain or prohibit or obtain damages or other relief in connection with the
Reorganization.
(j) The SEC shall not have issued any unfavorable advisory report
under Section 25(b) of the 1940 Act relating to, nor instituted any proceeding
seeking to enjoin consummation of, the Reorganization under Section 25(c) of the
1940 Act.
(k) AIC Trust shall have performed and complied in all material
respects with each of its agreements and covenants required by this Plan to be
performed or complied with by it prior to or at the Reorganization's Valuation
Time and Effective Time.
(l) AIC Trust shall have taken all steps required to terminate any
agreements with its service providers with respect to the Acquired Funds and
shall have discharged any and all payment obligations under such agreements.
(m) Xxxxx Fargo Funds shall have received the letters from KPMG LLP
addressed to AIC Trust and Xxxxx Fargo Funds as described in Section 7(n).
(n) Except to the extent prohibited by Rule 19b-1 under the 1940 Act,
prior to the Valuation Time, each Acquired Fund shall have declared a dividend
or dividends, with a record date and ex-dividend date prior to the Valuation
Time, which, together with all previous dividends, shall have the effect of
distributing to the Acquired Fund shareholders all of its previously
undistributed (i) "investment company taxable income" within the meaning of
Section 852(b) of the Code (determined without regard to Section 852(b)(2)(D) of
the Code), (ii) excess of (A) the amount specified in Section 852(a)(1)(B)(i) of
the Code over (B) the amount specified in Section 852(a)(1)(B)(ii) of the Code,
and (iii) net capital gain (within the meaning of Section 1222(11) of the Code),
if any, realized in taxable periods or years ending on or before the Effective
Time.
(o) Neither party shall have terminated this Plan with respect to the
Reorganization pursuant to Section 11 of this Plan.
(p) The Xxxxx Fargo Funds shall have received an order of the SEC
relieving the Xxxxx Fargo Funds from the provision of Section 15(f) of the 1940
Act that would otherwise require the Board of Trustees of the Xxxxx Fargo Funds
from the Effective Time to consist of at least 75% of members who are not
"interested persons" as defined in the 1940 Act; or the Xxxxx Fargo Funds Board
of Trustees shall be constituted in such a manner as to meet such 75%
requirement.
(q) The parties shall have received any necessary order of the SEC
providing them with any relief from the 1940 Act to permit the Reorganization.
(r) AIC Trust shall have delivered to Xxxxx Fargo Funds, or shall
have made provision for delivery as promptly as possible after the Effective
Time of, a statement, accurate and complete in all material respects, of assets
of each Acquired Fund of AIC Trust, showing the tax basis of such assets for
federal income tax purposes by lot and the holding periods of such assets for
such purposes, as of the Valuation Time.
(s) The Acquiring Fund shall have engaged all service providers as
described in the Form N-1A Registration Statement and Form N-14 Registration
Statement.
(t) All of the conditions precedent to WFFM's obligations under the
Adoption Agreement shall have been satisfied.
9. Tax Matters.
(a) The parties hereby represent and warrant that each shall use its
best efforts to cause each Reorganization to qualify, and will not (whether
before or after consummation of the Reorganization) take any actions that could
prevent a
Reorganization from qualifying as a "reorganization" under the provisions of
Section 368 of the Code.
(b) Except where otherwise required by law, the parties shall not
take a position on any tax returns inconsistent with the treatment of each
Reorganization for tax purposes as a "reorganization," within the meaning of
Section 368(a) of the Code and each Acquiring Fund and the Corresponding
Acquired Fund will comply with the record keeping and information filing
requirements of Section 1.368-3 of the Treasury Regulation in accordance
therewith.
10. Survival of Representations and Warranties. The representations and
warranties of the parties hereto set forth in this Plan shall survive the
completion of the transactions contemplated herein.
11. Termination of Plan. A majority of a party's Board of Trustees may
terminate this Plan with respect to any Acquiring Fund or the Acquired Fund, as
appropriate if: (i) the party's conditions precedent set forth in Sections 7 or
8, as appropriate, are not satisfied on the Closing Date; (ii) it becomes
reasonably apparent to the party's Board of Trustees that the other party will
not be able to satisfy such conditions precedent on the Closing Date; or (iii)
the party's Board of Trustees determines that the consummation of the
Reorganization is not in the best interests of its shareholders and gives notice
to the other party. The termination of this Plan with respect to an Acquiring
Fund and its Corresponding Acquired Fund shall not affect the survival of the
Plan with respect to any other Acquiring Fund or Acquired Fund.
12. Governing Law. This Plan and the transactions contemplated hereby
shall be governed, construed and enforced in accordance with the laws of the
State of Delaware, except to the extent preempted by federal law, without regard
to conflicts of law principles.
13. Finders Fees. Each party represents and warrants that there are no
brokers or finders entitled to receive any payments from either party in
connection with the transactions provided for in this Plan.
14. Amendments. The parties may, by agreement in writing authorized by
their respective Boards of Trustees, amend this Plan with respect to the
Reorganization at any time before or after the Acquired Fund's shareholders
approve the Reorganization. However, after the Acquired Fund's shareholders
approve the Reorganization, the parties may not amend this Plan in a manner that
materially adversely affects the interests of the Acquired Fund's shareholders
with respect to the Reorganization. This Section shall not preclude the parties
from changing the Closing Date or the Effective Time of the Reorganization by
mutual agreement.
15. Waivers. At any time on or prior to the Closing Date, any party may by
written instrument signed by it (i) waive the effect of any inaccuracies in the
representations and warranties made to it contained herein and (ii) waive
compliance with
any of the agreements, covenants or conditions made for its benefit contained
herein. The parties agree that any waiver shall apply only to the particular
inaccuracy or requirement for compliance waived, and not any other or future
inaccuracy or lack of compliance.
16. Indemnification of Trustees. Xxxxx Fargo Funds shall indemnify, defend
and hold harmless AIC Trust, its officers, trustees, employees and agents
against all losses, claims, demands, liabilities and expenses, including
reasonable legal and other expenses incurred in defending claims or liabilities,
whether or not resulting in any liability of AIC Trust, its officers, trustees,
employees or agents, arising out of or based on (i) any material breach by Xxxxx
Fargo Funds of any of its representations, warranties or agreements set forth in
this Plan, or (ii) any untrue statement or alleged untrue statement of a
material fact contained in any registration statement on Form N-1A for Xxxxx
Fargo Funds, or in the Form N-14 Registration Statement insofar as it relates to
the Xxxxx Fargo Funds or the Acquiring Fund or Acquiring Classes, that is used
in connection with the Reorganization.
17. Cooperation and Further Assurances. Each party will cooperate with the
others in fulfilling its obligations under this Plan and will provide such
information and documentation as is reasonably requested by another party in
carrying out this Plan's terms. Each party will provide such further assurances
concerning the performance of its obligations under this Plan and the
consummation of the Reorganization as another party shall reasonably request.
Each party shall notify the other on and anytime prior to the Closing Date if it
Knows that any of its representations or warranties in Section 5 or 6, as
applicable, are no longer true and correct. Each party will take all reasonable
actions to seek to ensure that each person intended to issue an opinion, letter
or memorandum contemplated by this Plan can issue that opinion, letter or
memorandum.
18. Updating of Form N-14 Registration Statement. If at any time prior to
the Effective Time of a Reorganization a party becomes aware of any untrue
statement of material fact or omission to state a material fact required to be
stated therein or necessary to make the statements made not misleading in light
of the circumstances under which they were made in the Form N-14 Registration
Statement, the party discovering the item shall notify the other parties and the
parties shall cooperate in promptly preparing, filing and clearing with the SEC
and, if appropriate, distributing to shareholders appropriate disclosure with
respect to the item.
19. Limitation on Liabilities. The obligations of AIC Trust and Xxxxx
Fargo Funds shall not bind any of the Trustees, shareholders, nominees,
officers, agents, or employees of AIC Trust or Xxxxx Fargo Funds personally, but
shall bind only the assets and property of the Acquiring Funds and the Acquired
Funds. The execution and delivery of this Plan by the parties' 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 assets and the
property of the Acquiring Funds or the Acquired Funds, as appropriate.
20. Notices. Any notice, report, statement, certificate or demand required
or permitted by any provision of this Plan shall be in writing and shall be
given by facsimile, a reputable overnight express carrier, or by registered or
certified mail, postage prepaid, addressed as follows or to such other address
of which the parties may have given notice:
For the Acquired Funds:
Xxxxxxx X. Xxxxxxx, Xx.
Vice President and Secretary
The Advisors' Inner Circle Fund
c/o SEI Investments
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to:
Xxxx X. Xxxx
Xxxxxx, Xxxxx & Xxxxxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
Facsimile: (000) 000-0000
For Xxxxx Fargo Funds:
Xxxxx X. Xxxxxxx, President
Xxxxx Fargo Funds Trust
000 Xxxxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to:
C. Xxxxx Xxxxxxx, Secretary
Xxxxx Fargo Funds Trust
000 Xxxxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
21. Expenses. Each party hereto acknowledges that all expenses incurred by
it in connection with the Reorganizations and with this Plan, whether or not the
Reorganizations are consummated, shall be borne by WFFM, or one of its
affiliated companies. Notwithstanding the foregoing, the parties to the Adoption
Agreement may decide to otherwise allocate responsibility for such expenses
between themselves.
22. General. This Plan supersedes all prior agreements between the parties
(written or oral), is intended as a complete and exclusive statement of the
terms of the agreement between the parties and may not be changed or terminated
orally. The parties may execute this Plan in counterparts, which shall be
considered one and the same agreement, and shall become effective when the
counterparts have been executed by and delivered to all the parties. The
headings contained in this Plan are for reference only and shall not affect in
any way the meaning or interpretation of this Plan. Nothing in this Plan,
expressed or implied, confers upon any other person any rights or remedies under
or by reason of this Plan except for persons entitled to indemnification under
Section 16. No party may assign or transfer any right or obligation under this
Plan without the written consent of the other parties.
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers designated below to execute this Plan as of the date first written
above.
ATTEST: XXXXX FARGO FUNDS TRUST
/s/ C. Xxxxx Xxxxxxx /s/ Xxxxx X. Xxxxxxx
------------------------------ --------------------------------------
Name: C. Xxxxx Xxxxxxx Name: Xxxxx X. Xxxxxxx
Title: Secretary Title: President
ATTEST: ADVISORS' INNER CIRCLE FUND
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxx Xxxx
------------------------------ --------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx. Name: Xxxxx Xxxx
Title: Vice President and Title: President
Secretary
ATTEST: XXXXX FARGO FUNDS MANAGEMENT, LLC
(a party to this Plan as to Section 21
only)
/s/ C. Xxxxx Xxxxxxx /s/ Xxxxx X. Xxxxxxx
------------------------------ --------------------------------------
Name: C. Xxxxx Xxxxxxx Name: Xxxxx X. Xxxxxxx
Title: Secretary Title: President
SCHEDULE A
Corresponding Classes Table:
---------------------------
------------------------------------------------------------------------
Acquired Fund Acquiring Fund
------------------------------------------------------------------------
C&B Large Cap Value Portfolio Xxxxx Fargo C&B Large Cap Value Fund
Unnamed Share Class Class D
------------------------------------------------------------------------
C&B Mid Cap Value Portfolio Xxxxx Fargo C&B Mid Cap Value Fund
Unnamed Share Class Class D
------------------------------------------------------------------------
C&B Tax-Managed Value Portfolio Xxxxx Fargo C&B Tax-Managed Value Fund
Unnamed Share Class Class D
------------------------------------------------------------------------
SCHEDULE B
MATERIAL AGREEMENTS
The following agreements shall be Material Agreements for AIC Trust:
Investment Advisory Agreement between The Advisors' Inner Circle Fund, on behalf
of the Acquired Funds, and Xxxxx & Xxxxxx, X.X., dated August 31, 2001.
Fee Waiver Agreement between The Advisors' Inner Circle Fund, on behalf of the
Acquired Funds, and Xxxxx & Xxxxxx, X.X., dated March 1, 2004.
Distribution Agreement between The Advisors' Inner Circle Fund and SEI
Investments Distribution Co., dated November 14, 1991, as amended and restated
November 12, 2002.
Custody Agreement between The Advisors' Inner Circle Fund and Wachovia Bank,
N.A. (successor to First Union Bank, N.A. and Core States Bank, N.A.) dated
August 12, 1991, with Schedule A (Fee Schedule) amended February 18, 2004.
Administration Agreement between The Advisors' Inner Circle Fund and SEI
Investments Global Funds Services dated November 14, 1991, as amended and
restated November 12, 2002, with Schedule dated August 13, 2001 relating to the
Acquired Funds.
Agency Agreement between The Advisors' Inner Circle Fund and DST Systems, Inc.,
dated February 5, 2004.
Shareholder Service Plan for the Acquired Funds dated March 1, 2002, as approved
by the Board of The Advisors' Inner Circle Fund on February 19, 2002, with
Appendix A amended February 3, 2004 to include the Acquiring Funds.
Form of Shareholder Service Agreement for the Acquired Funds, as approved by the
Board of The Advisors' Inner Circle Fund on February 19, 2002, with Schedule.
Agreement among Jointly Insured Parties between The Advisors' Inner Circle Fund
and various other jointly insured parties dated as of August 19, 2003 as
approved by the Board on August 12, 2003.
Letter Agreement among Xxxxx & Xxxxxx, X.X., SEI Investments Global Fund
Services and The Advisors' Inner Circle Fund, dated March 24, 2004.
The following agreements shall be Material Agreements for Xxxxx Fargo Funds:
Investment Advisory Contract between Xxxxx Fargo Funds Management, LLC ("Xxxxx
Fargo Funds Management") and Xxxxx Fargo Funds, dated March 1, 2001, with
Schedule A amended February 3, 2004 to include the Acquiring Funds.
Sub-Advisory Contract among Xxxxx & Xxxxxx, X.X., Xxxxx Fargo Funds Management
and Xxxxx Fargo Funds, dated March 24, 2004.
Amended and Restated Distribution Agreement between Xxxxxxxx Inc. and Xxxxx
Fargo Funds, dated May 8, 2002, with Appendix A amended February 3, 2004 to
include the Acquiring Funds.
Distribution Plan adopted pursuant to Rule 12b-1 under the Investment Company
Act of 1940 approved by the Xxxxx Fargo Funds Board on March 26, 1999, with
Appendix A amended February 3, 2004 to include the Acquiring Funds.
Rule 18f-3 Multi-Class Plan approved by the board of Xxxxx Fargo Funds on March
26, 1999, with Appendix A amended February 3, 2004 to include the Acquiring
Funds.
Custody Agreement between Xxxxx Fargo Bank Minnesota, N.A. and Xxxxx Fargo Funds
dated July 25, 2000, with Appendix A amended February 3, 2004 to include the
Acquiring Funds.
Fund Accounting Agreement between PFPC and Xxxxx Fargo Funds dated as of
September 1, 2002.
Administration Agreement between Xxxxx Fargo Funds Management and Xxxxx Fargo
Funds dated March 1, 2003, with Appendix A amended February 3, 2004 to include
the Acquiring Funds.
Transfer Agency and Service Agreement between Boston Financial Data Services,
Inc. and Xxxxx Fargo Funds, dated November 8, 1999, with a March 1, 2003
Amendment and Schedule A amended February 3, 2004 to include the Acquiring
Funds.
Shareholder Servicing Agreement approved by the Board of Xxxxx Fargo Funds on
March 26, 1999, with Appendix A amended February 3, 2004 to include the
Acquiring Funds.
Amended and Restated Fee and Expense Agreement between Xxxxx Fargo Funds and
Xxxxx Fargo Funds Management, dated August 7, 2001, with Schedule A ed February
3, 2004 to include the Acquiring Funds.
Joint Fidelity Bond Allocation Agreement between Xxxxx Fargo Funds, Xxxxx Fargo
Variable Trust and Xxxxx Fargo Core Trust approved by the Boards on August 19,
1999, with Appendix A amended February 3, 2004 to include the Acquiring Funds.
Pooled Repurchase Account Agreement between Xxxxx Fargo Funds, Xxxxx Fargo
Variable Trust and Xxxxx Fargo Core Trust dated March 1, 2001, with Schedule 1
amended February 3, 2004 to include the Acquiring Funds.
Securities Lending Agreement between Xxxxx Fargo Funds, Xxxxx Fargo Funds
Management, LLC and Xxxxx Fargo Bank Minnesota, N.A. dated March 1, 2001, with
Exhibit A amended February 3, 2004 to include the Acquiring Funds.
