EXHIBIT A
FORM OF AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION dated as of __________, 2002 (the
"Agreement"), between and among The Advisors' Inner Circle Fund ("AIC Trust"), a
Massachusetts business trust, with its principal place of business at 101
Federal Street, Boston, MA 02110, with regard to its CRA Realty Shares Portfolio
(the "Acquired Fund") and ING Equity Trust ("ING Equity Trust"), a Massachusetts
business trust, with its principal place of business at 7337 E. Doubletree Ranch
Road, Scottsdale, AZ 85258 with regard to its ING Real Estate Fund (the
"Acquiring Fund").
WHEREAS, AIC Trust was organized on July 18, 1991 under Massachusetts
law as a business trust under an Agreement and Declaration of Trust. AIC Trust
is an open-end management investment company registered under the Investment
Company Act of 1940, as amended (the "1940 Act"). AIC Trust has authorized two
classes of shares of the Acquired Fund: Institutional Class Shares and Class A
Shares. The Acquired Fund is a validly existing series of AIC Trust and has only
Institutional Class Shares issued and outstanding;
WHEREAS, ING Equity Trust was organized on June 12, 1998 under
Massachusetts law as a business trust under a Declaration of Trust. ING Equity
Trust is an open-end management investment company registered under the 1940
Act. ING Equity Trust has authorized capital consisting of an unlimited number
of shares of beneficial interest with par value of separate series of ING
Equity Trust. The Acquiring Fund is a duly organized and validly existing series
of ING Equity Trust;
NOW, THEREFORE, in consideration of the mutual promises herein
contained and intending to be legally bound hereby, the parties hereto agree to
effect the transfer of all of the assets of the Acquired Fund solely in exchange
for the assumption by the Acquiring Fund of all of the liabilities of the
Acquired Fund and shares of beneficial interest of Class I Shares of the
Acquiring Fund ("Acquiring Fund Shares") followed by the distribution, at the
Effective Time (as defined in Section 12 of this Agreement), of such Acquiring
Fund Shares to the holders of Institutional Class Shares of the Acquired Fund
("Acquired Fund Shares") on the terms and conditions hereinafter set forth in
liquidation of the Acquired Fund. The parties hereto covenant and agree as
follows:
1. PLAN OF REORGANIZATION. At the Effective Time, the Acquired
Fund will assign, deliver and otherwise transfer all of its assets and goods and
marketable title thereto, and assign all of the liabilities as are set forth in
a statement of assets and liabilities, to be prepared as of the Valuation Time
(the "Statement of Assets and Liabilities") to the Acquiring Fund free and clear
of all liens, encumbrances and adverse claims except as provided in this
Agreement, and the Acquiring Fund shall acquire all assets, and shall assume all
liabilities of the Acquired Fund, in exchange for delivery to the Acquired Fund
by the Acquiring Fund of a number of Acquiring Fund Shares (both full and
fractional) equivalent in number and value to the Acquired Fund Shares
outstanding immediately prior to the Effective Time. Shareholders of record of
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Institutional Class Shares of the Acquired Fund at the Effective Time
will be credited with full and fractional Class I Shares of the Acquiring Fund.
The assets and liabilities of the Acquired Fund shall be exclusively assigned to
and assumed by the Acquiring Fund. All debts, liabilities, obligations and
duties of the Acquired Fund, to the extent that they exist at or after the
Effective Time shall after the Effective Time attach to the Acquiring Fund and
may be enforced against the Acquiring Fund to the same extent as if the same had
been incurred by the Acquiring Fund. The events outlined in this Section 1 are
the "Reorganization."
2. TRANSFER OF ASSETS.
(a) The assets of the Acquired Fund to be acquired by the
Acquiring Fund and allocated thereto shall include, without limitation,
all cash, cash equivalents, securities, receivables (including interest
and dividends receivable) as set forth in the Statement of Assets and
Liabilities, as well as any claims or rights of action or rights to
register shares under applicable securities laws, any books or records
of the Acquired Fund and other property owned by the Acquired Fund at
the Effective Time.
(b) The Acquired Fund shall direct First Union National Bank,
as custodian for the Acquired Fund (the "Custodian"), to deliver, at
or prior to the Effective Time, a certificate of an authorized
officer stating that: (i) assets have been delivered in proper form to
the Acquiring Fund within two business days prior to or at the
Effective Time, and (ii) all necessary taxes in connection with the
delivery of the assets, including all applicable federal and state
stock transfer stamps, if any, have been paid or provision for
payment has been made. The Acquired Fund's portfolio securities
represented by a certificate or other written instrument shall be
presented for examination by the Custodian to the custodian for the
Acquiring Fund no later than five business days preceding the
Effective Time, and shall be transferred and delivered by the Acquired
Fund prior to or as of the Effective Time for the account of the
Acquiring Fund duly endorsed in proper form for transfer in such
condition as to constitute good delivery thereof. The Custodian shall
deliver prior to or as of the Effective Time by book entry, in
accordance with the customary practices of any securities depository,
as defined in Rule 17f-4 under the 1940 Act, in which the Acquired
Fund's assets are deposited and the Custodian, the Acquired Fund's
assets deposited with such depositories. The cash to be transferred by
the Acquired Fund shall be delivered by wire transfer of federal
funds prior to or as of the Effective Time.
(c) The Acquired Fund shall direct Forum Financial Systems,
Inc. (the "Transfer Agent"), on behalf of the Acquired Fund, to deliver
prior to or as of the Effective Time a certificate of an authorized
officer stating that its records contain the names and addresses of the
Acquired Fund Shareholders and the number and percentage ownership of
outstanding Institutional Class shares owned by each shareholder
immediately prior to the Effective Time. The Acquiring Fund shall issue
and deliver a confirmation evidencing the Acquiring Fund Shares to be
credited at the Effective Time to the Secretary of the Acquired Fund,
or provide evidence satisfactory to the Acquired Fund that such
Acquiring Fund Shares have been credited to the Acquired Fund's account
on the books of the Acquiring Fund. No later than the Effective Time
each party shall deliver to the other such bills of sale, checks,
assignments, share certificates, if any, receipts or other documents as
such other party or its counsel may reasonably request.
3. CALCULATIONS.
(a) The number of Acquiring Fund Shares issued to the Acquired
Fund pursuant to Section 1 hereof will be the number of issued and
outstanding Acquired Fund Shares at the Valuation Time.
(b) The net asset value of the Acquiring Fund Shares shall be
the net asset value of the Acquired Fund's shares at the Valuation
Time. The net asset value of Acquired Fund Shares shall be computed at
the Valuation Time in the manner set forth in the Acquired Fund's then
current prospectus under the Securities Act of 1933 (the "1933 Act").
4. VALUATION OF ASSETS. The value of the assets of the Acquired
Fund shall be the value of such assets computed as of the time at which the
Acquired Fund's net asset value is calculated at the Valuation Time (as
hereinafter defined). The net asset value of the assets of the Acquired Fund to
be transferred to the Acquiring Fund shall be computed by AIC Trust (and shall
be subject to adjustment by the amount, if any, agreed to by AIC Trust and the
Acquired Fund and ING Equity Trust and the Acquiring Fund). In determining the
value of the securities transferred by the Acquired Fund to the Acquiring Fund,
each security shall be priced in accordance with the pricing policies and
procedures of the Acquired Fund as described in its then current prospectus and
statement of additional information. For such purposes, price quotations and the
security characteristics relating to establishing such quotations shall be
determined by AIC Trust, provided that such determination shall be subject to
the approval of ING Equity Trust. AIC Trust and ING Equity Trust agree to use
all commercially reasonable efforts to resolve, prior to the Valuation Time, any
material pricing differences between the prices of portfolio securities
determined in accordance with the pricing policies and procedures of the
Acquiring Fund and those determined in accordance with the pricing policies and
procedures of the Acquired Fund.
5. VALUATION TIME. The valuation time shall be 4:00 p.m., Eastern
Time, on November 1, 2002, or such earlier or later date and time as may be
mutually agreed in writing by an authorized officer of each of the parties (the
"Valuation Time"). Notwithstanding anything
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herein to the contrary, in the event that at the Valuation Time, (a) the New
York Stock Exchange shall be closed to trading or trading thereon shall be
restricted or (b) trading or the reporting of trading on such exchange or
elsewhere shall be disrupted so that, in the judgment of ING Equity Trust or AIC
Trust, accurate appraisal of the value of the net assets of the Acquiring Fund
or the Acquired Fund is impracticable, the Valuation Time shall be postponed
until the first business day after the day when trading shall have been fully
resumed without restriction or disruption, reporting shall have been restored
and accurate appraisal of the value of the net assets of the Acquiring Fund is
practicable.
6. LIQUIDATION OF THE ACQUIRED FUND AND CANCELLATION OF SHARES.
At the Effective Time, the Acquired Fund will liquidate and the Acquiring Fund
Shares (both full and fractional) received by the Acquired Fund will be
distributed to the shareholders of record of the Acquired Fund as of the
Effective Time in exchange for the Acquired Fund Shares and in complete
liquidation of the Acquired Fund. Each shareholder of the Acquired Fund will
receive a number of Acquiring Fund Shares equal in number and value to the
Acquired Fund Shares held by that shareholder, and each Acquiring Fund Share and
each Acquired Fund Share will be of equivalent net asset value per share. Such
liquidation and distribution will be accompanied by the establishment of an open
account on the share records of the Acquiring Fund in the name of each
shareholder of the Acquired Fund that represents the respective number of
Acquiring Fund Shares due such shareholder. All of the issued and outstanding
shares of the Acquired Fund shall be cancelled on the books of AIC Trust at the
Effective Time and shall thereafter represent only the right to receive
Acquiring Fund Shares. The Acquired Fund's transfer books shall be closed
permanently. AIC Trust also shall take any and all other steps as shall be
necessary and proper to effect a complete termination of the Acquired Fund.
7. REPRESENTATIONS AND WARRANTIES OF THE ACQUIRING FUND. The
Acquiring Fund represents and warrants to the Acquired Fund as follows:
(a) ORGANIZATION, EXISTENCE, ETC. ING Equity Trust is a
business trust duly organized and validly existing under the laws of
the Commonwealth of Massachusetts and has the power to carry on its
business as it is now being conducted.
(b) REGISTRATION AS INVESTMENT COMPANY. ING Equity
Trust is registered under the 1940 Act as an open-end management
investment company; such registration has not been revoked or rescinded
and is in full force and effect.
(c) SHARES TO BE ISSUED UPON REORGANIZATION. The Acquiring
Fund Shares to be issued by the Acquiring Fund in connection with the
Reorganization have been duly authorized and upon consummation of the
Reorganization will be validly issued, fully paid and non-assessable by
the Trust. Prior to the Effective Time, there shall be no issued and
outstanding Acquiring Fund Shares or any other securities issued by the
Acquiring Fund.
(d) AUTHORITY RELATIVE TO THIS AGREEMENT. ING Equity Trust, on
behalf of the Acquiring Fund, has the power to enter into this
Agreement and to carry out its obligations hereunder. The execution,
delivery and performance of this Agreement, and the consummation of the
transactions contemplated hereby, have been duly authorized by ING
Equity Trust's Board of Trustees, and no other proceedings by the
Acquiring Fund
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are necessary to authorize ING Equity Trust's officers to effectuate
this Agreement and the transactions contemplated hereby. The Acquiring
Fund is not a party to or obligated under any charter, by-law,
indenture or contract provision or any other commitment or obligation,
or subject to any order or decree, which would be violated by its
executing and carrying out this Agreement.
(e) LIABILITIES. There are no liabilities of the Acquiring
Fund, whether or not determined or determinable, other than liabilities
incurred in the ordinary course of business subsequent to the Effective
Time or otherwise disclosed to the Acquired Fund, none of which has
been materially adverse to the business, assets or results of
operations of the Acquiring Fund. ING Equity Trust's Registration
Statement, which is on file with the Securities and Exchange Commission
(the "SEC"), does not contain an untrue statement of material fact or
omit a material fact that is required to be stated therein or that is
necessary to make the statements therein not misleading.
(f) LITIGATION. Except as disclosed to the Acquired Fund,
there are no claims, actions, suits or proceedings pending or, to the
actual knowledge of the Acquiring Fund, threatened which would
materially adversely affect the Acquiring Fund or its assets or
business or which would prevent or hinder in any material respect
consummation of the transactions contemplated hereby.
(g) CONTRACTS. Except for contracts and agreements disclosed
to the Acquired Fund, under which no default exists, the Acquiring Fund
is not a party to or subject to any material contract, debt instrument,
plan, lease, franchise, license or permit of any kind or nature
whatsoever with respect to the Acquiring Fund.
(h) TAXES. As of the Effective Time, all Federal and other tax
returns, information returns, and other tax-related reports of the
Acquiring Fund required by law to have been filed by such date
(including extensions) shall have been filed, and all other taxes shall
have been paid so far as due, or provision shall have been made for the
payment thereof, and to the best of the Acquiring Fund's knowledge, no
such return is currently under audit and no assessment has been
asserted with respect to any of such returns.
(i) SUBCHAPTER M. For each taxable year of its operation
(including the taxable year that includes the Effective Date), the
Acquiring Fund has met (or will meet) the requirements of Subchapter M
of the Code for qualification as a regulated investment company, has
been eligible to (or will be eligible to) and has computed (or will
compute) its federal income tax under Section 852 of the Code, and has
distributed all of its investment company taxable income and net
capital gain (as defined in the Code) for periods ending prior to the
Effective Date.
8. REPRESENTATIONS AND WARRANTIES OF THE ACQUIRED FUND. The
Acquired Fund represents and warrants to the Acquiring Fund as follows:
(a) ORGANIZATION, EXISTENCE, ETC. AIC Trust is a business
trust duly organized and validly existing under the laws of the
Commonwealth of Massachusetts and has the power to carry on its
business as it is now being conducted.
(b) REGISTRATION AS INVESTMENT COMPANY. AIC Trust is
registered under the 1940 Act as an open-end management investment
company; such registration has not been revoked or rescinded and is in
full force and effect.
(c) FINANCIAL STATEMENTS. The audited financial statements of
AIC Trust relating to the Acquired Fund for the fiscal year ended
October 31, 2001 and unaudited financial statements of AIC Trust
relating to the Acquired Fund for the semi-annual period ended April
30, 2001 (the "Acquired Fund's Financial Statements"), as delivered
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to the Acquiring Fund, fairly present the financial position of
the Acquired Fund as of the dates thereof, and the results of its
operations and changes in its net assets for the periods indicated.
There are no known contingent liabilities of the Acquired Fund required
to be reflected on a balance sheet (including notes thereto) in
accordance with generally accepted accounting principles as of such
date not disclosed therein.
(d) MARKETABLE TITLE TO ASSETS. The Acquired Fund will have,
at the Effective Time, good and marketable title to, and full right,
power and authority to sell, assign, transfer and deliver, the assets
to be transferred to the Acquiring Fund. Upon delivery and payment for
such assets, the Acquiring Fund will have good and marketable title to
such assets without restriction on the transfer thereof free and clear
of all liens, encumbrances and adverse claims.
(e) AUTHORITY RELATIVE TO THIS AGREEMENT. AIC Trust, on behalf
of the Acquired Fund, has the power to enter into this Agreement and to
carry out its obligations hereunder. The execution, delivery and
performance of this Agreement, and the consummation of the transactions
contemplated hereby, have been duly authorized by AIC Trust's Board of
Trustees, and, except for approval by the shareholders of the Acquired
Fund, no other proceedings by that Acquired Fund are necessary to
authorize AIC Trust's officers to effectuate this Agreement and the
transactions contemplated hereby. The Acquired Fund is not a party to
or obligated under any charter, by-law, indenture or contract provision
or any other commitment or obligation, or subject to any order or
decree, which would be violated by its executing and carrying out this
Agreement.
(f) LIABILITIES. There are no liabilities of the Acquired
Fund, whether or not determined or determinable, other than liabilities
disclosed or provided for in the Acquired Fund's Financial Statements
and liabilities incurred in the ordinary course of business prior to
the Effective Time, or otherwise disclosed to the Acquiring Fund, none
of which has been materially adverse to the business, assets or results
of operations of the Acquired Fund. AIC Trust's Registration Statement,
which is on file with the SEC, does not contain an untrue statement of
a material fact or omit a material fact that is required to be stated
therein or that is necessary to make the statements therein not
misleading.
(g) LITIGATION. Except as disclosed to the Acquiring Fund,
there are no claims, actions, suits or proceedings pending or, to the
knowledge of the Acquired Fund, threatened which would materially
adversely affect the Acquired Fund or its assets or business or which
would prevent or hinder in any material respect consummation of the
transactions contemplated hereby.
(h) CONTRACTS. Except for contracts and agreements disclosed
to the Acquiring Fund, under which no default exists, the Acquired
Fund, at the Effective Time, is not a party to or subject to any
material contract, debt instrument, plan, lease, franchise, license or
permit of any kind or nature whatsoever.
(i) TAXES. As of the Effective Time, all Federal and other tax
returns and reports of the Acquired Fund required by law to have been
filed shall have been filed, and all other taxes shall have been paid
so far as due, or provision shall have been made for the payment
thereof, and to the best of the Acquired Fund's knowledge, no such
return is currently under audit and no assessment has been asserted
with respect to any of such returns.
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(j) SUBCHAPTER M. For each taxable year of its operation
(including the taxable year ending on the Effective Date), the
Acquired Fund has met (or will meet) the requirements of Subchapter M
of the Code for qualification as a regulated investment company, has
been (or will be) eligible to and has computed (or will compute) its
federal income tax under Section 852 of the Code, and will have
distributed all of its investment company taxable income and net
capital gain (as defined in the Code) that has accrued through the
Effective Date, and before the Effective Date will have declared
dividends sufficient to distribute all of its investment company
taxable income and net capital gain for the period ending on the
Effective Date.
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND.
(a) All representations and warranties of the Acquired Fund
contained in this Agreement shall be true and correct in all material
respects as of the date hereof and, except as they may be affected by
the transactions contemplated by this Agreement, as of the Effective
Time, with the same force and effect as if made on and as of the
Effective Time. At the Effective Time, ING Equity Trust shall have
received a certificate from the President or Vice President of AIC
Trust, dated as of such date, certifying on behalf of AIC Trust that as
of such date that the conditions set forth in this clause (a) have been
met.
(b) The Acquiring Fund shall have received an opinion of
counsel on behalf of the Acquired Fund, dated as of the Effective Time,
addressed and in form and substance satisfactory to counsel for the
Acquiring Fund, to the effect that (i) AIC Trust is duly organized
under the laws of the Commonwealth of Massachusetts and the Acquired
Fund is a validly existing series of AIC Trust; (ii) AIC Trust is an
open-end management investment company registered under the 1940 Act;
(iii) this Agreement and the Reorganization provided for herein and the
execution of this Agreement have been duly authorized and approved by
all requisite corporate action on behalf of AIC Trust and this
Agreement has been duly executed and delivered by AIC Trust on behalf
of the Acquired Fund and is a valid and binding obligation of AIC Trust
on behalf of the Acquired Fund, subject to applicable bankruptcy,
insolvency, fraudulent conveyance and similar laws or court decisions
regarding enforcement of creditors' rights generally and such counsel
shall express no opinion with respect to the application of equitable
principles on any proceeding, whether at law or in equity, as to the
enforceability of any provision of this Agreement relating to remedies
after default, as to availability of any specific or equitable relief
of any kind, with respect to the provisions of this Agreement intended
to limit liability for a particular matter to a particular Acquired
Fund and its assets, including but not limited to Section 21 of this
Agreement or with respect to the provisions of this Agreement relating
to indemnification; and (iv) to the best of counsel's knowledge, no
consent, approval, order or other authorization of any Federal or state
court or administrative or regulatory agency is required for AIC Trust
to enter into this Agreement on behalf of the Acquired Fund or carry
out its terms that has not been obtained other than where the failure
to obtain any such consent, approval, order or authorization would not
have a material adverse effect on the operations of the Acquired Fund.
(c) The Acquired Fund shall have delivered to the Acquiring
Fund at the Effective Time the Acquired Fund's Statement of Assets and
Liabilities, prepared in accordance with generally accepted accounting
principles consistently applied, together with a certificate of the
Treasurer or Assistant Treasurer of AIC Trust as to the aggregate asset
value of the Acquired Fund's portfolio securities.
(d) At the Effective Time, AIC Trust shall have performed and
complied in all
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material respects with each of its agreements and covenants required by
this Agreement to be performed or complied with by AIC Trust prior to
or at the Effective Time and ING Equity Trust shall have received a
certificate from the President or Vice President of AIC Trust, dated as
of such date, certifying on behalf of AIC Trust that the conditions set
forth in this clause (d) have been, continue to be, satisfied.
10. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED FUND.
(a) All representations and warranties of the Acquiring Fund
contained in this Agreement shall be true and correct in all material
respects as of the date hereof and, except as they may be affected by
the transactions contemplated by this Agreement, as of the Effective
Time, with the same force and effect as if made on and as of the
Effective Time. At the Effective Time, AIC Trust shall have received a
certificate from the President or Vice President of ING Equity Trust,
dated as of such date, certifying on behalf of ING Equity Trust that as
of such date that the conditions set forth in this clause (a) have been
met.
(b) The Acquired Fund shall have received an opinion of
counsel on behalf of the Acquiring Fund, dated as of the Effective
Time, addressed and in form and substance satisfactory to counsel for
the Acquired Fund, to the effect that: (i)ING Equity Trust is duly
organized under the laws of the Commonwealth of Massachusetts and the
Acquiring Fund is a validly existing series of ING Equity Trust (ii)
ING Equity Trust is an open-end management investment company
registered under the 1940 Act; (iii) this Agreement and the
Reorganization provided for herein and the execution of this Agreement
have been duly authorized and approved by all requisite corporate
action of ING Equity Trust, on behalf of the Acquiring Fund and this
Agreement has been duly executed and delivered by ING Equity Trust, on
behalf of the Acquiring Fund and is a valid and binding obligation of
ING Equity Trust, on behalf of the Acquiring Fund, subject to
applicable bankruptcy, insolvency, fraudulent conveyance and similar
laws or court decisions regarding enforcement of creditors' rights
generally and such counsel shall express no opinion with respect to the
application of equitable principles on any proceeding, whether at law
or in equity, as to the enforceability of any provision of this
Agreement relating to remedies after default, as to availability of any
specific or equitable relief of any kind, with respect to the
provisions of this Agreement intended to limit liability for a
particular matter to a particular Acquiring Fund and its assets,
including but not limited to Section 21 of this Agreement or with
respect to the provisions of this Agreement relating to
indemnification; (iv) to the best of counsel's knowledge, no consent,
approval, order or other authorization of any Federal or state court or
administrative or regulatory agency is required for ING Equity Trust to
enter into this Agreement on behalf of the Acquiring Fund or carry out
its terms that has not already been obtained, other than where the
failure to obtain any such consent, approval, order or authorization
would not have a material adverse effect on the operations of the
Acquiring Fund; and (v) the Acquiring Fund Shares to be issued in the
Reorganization have been duly authorized and upon issuance thereof in
accordance with this Agreement will be validly issued, fully paid and
non-assessable by the Trust.
(c) At the Effective Time, ING Equity Trust shall have
performed and complied in all material respects with each of its
agreements and covenants required by this Agreement to be performed or
complied with by ING Equity Trust prior to or at the Effective Time and
AIC Trust shall have received a certificate from the President or Vice
President of ING Equity Trust, dated as of such date, certifying on
behalf of ING Equity Trust that the conditions set forth in this clause
(c) have been, and continue to be, satisfied.
(d) The Acquired Fund shall have declared and paid a
distribution or distributions prior to the Closing that, together
with all previous distributions, shall have the effect of distributing
to its shareholders: (i) all of its investment company taxable
income and all of its net realized capital gains, if any, for the
period). from the close of its last fiscal year to 4:00 p.m. Eastern
Time on the Closing; and (ii) any undistributed investment company
taxable income and net realized capital gains from any period to the
extent not otherwise already distributed.
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11. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED
FUND AND THE ACQUIRING FUND. The obligations of the Acquired Fund and the
Acquiring Fund to effectuate this Agreement shall be subject to the
satisfaction of each of the following conditions:
(a) With respect to the Acquired Fund, AIC Trust will call a
meeting of shareholders to consider and act upon this Agreement and to
take all other actions reasonably necessary to obtain the approval by
shareholders of the Acquired Fund of this Agreement and the
transactions contemplated herein, including the Reorganization and the
termination of the Acquired Fund if the Reorganization is consummated.
AIC Trust has prepared or will prepare a notice of meeting, form of
proxy, and proxy statement (collectively, the "Proxy Materials") to be
used in connection with such meeting; provided that the Acquiring Fund
has furnished or will furnish information relating to it as is
reasonably necessary for the preparation of the Proxy Materials.
(b) The Registration Statement on Form N-14 of the Acquiring
Fund shall be effective under the 1933 Act and, to the best knowledge
of the Acquiring Fund, no investigation or proceeding for that purpose
shall have been instituted or be pending, threatened or contemplated
under the 1933 Act.
(c) The shares of the Acquiring Fund shall have been duly
qualified for offering to the public in all states of the United
States, the Commonwealth of Puerto Rico and the District of Columbia
(except where such qualifications are not required) so as to permit the
transfer contemplated by this Agreement to be consummated.
(d) The Acquired Fund and the Acquiring Fund shall have
received on or before the Effective Time an opinion of counsel
satisfactory to the Acquired Fund and the Acquiring Fund, based on
customary officers' certificates provided by each, substantially to the
effect that for Federal income tax purposes:
(1) No gain or loss will be recognized by the
Acquired Fund upon the transfer of its assets in exchange
solely for Acquiring Fund Shares and the assumption by the
Acquiring Fund of the Acquired Fund's stated liabilities;
(2) No gain or loss will be recognized by the
Acquiring Fund on its receipt of Acquired Fund assets in
exchange for Acquiring Fund Shares and the assumption by the
Acquiring Fund of the Acquired Fund's liabilities;
(3) The basis of the Acquired Fund's assets in the
Acquiring Fund's hands will be the same as the basis of those
assets in the Acquired Fund's hands immediately before the
Effective Time;
(4) The Acquiring Fund's holding period for the
assets received by the Acquired Fund will include the holding
period of those assets in the Acquired Fund's hands
immediately before the Effective Time;
(5) No gain or loss will be recognized by the
Acquired Fund on the
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distribution of Acquiring Fund Shares to the Acquired Fund's
shareholders in exchange for their Acquired Fund Shares;
(6) No gain or loss will be recognized by any
Acquired Fund shareholder as a result of the Acquired Fund's
distribution of Acquiring Fund Shares to such shareholder in
exchange for such shareholder's Acquired Fund Shares;
(7) The basis of the Acquiring Fund Shares received
by each Acquired Fund shareholder will be the same as the
adjusted basis of that Acquired Fund shareholder's Acquired
Fund Shares surrendered in exchange therefor; and
(8) The holding period of the Acquiring Fund Shares
received by each Acquired Fund shareholder will include such
shareholder's holding period for the Acquired Fund Shares
surrendered in exchange therefor, provided that said Acquired
Fund Shares were held as capital assets as of the Effective
Time.
(e) This Agreement and the Reorganization contemplated hereby
shall have been approved by at least a majority of the outstanding
shares of the Acquired Fund entitled to vote on the matter.
(f) The Board of Trustees of ING Equity Trust shall have
approved this Agreement and authorized the issuance by the Acquiring
Fund of Acquiring Fund Shares at the Effective Time in exchange for the
assets of the Acquired Fund pursuant to the terms and provisions of
this Agreement.
12. EFFECTIVE TIME OF THE REORGANIZATION. The exchange of the
Acquired Fund's assets for the Acquiring Fund Shares shall be effective as of
opening of business on November 4, 2002, or at such other time and date as fixed
by the mutual consent of the parties (the "Effective Time").
13. TERMINATION. This Agreement and the transactions contemplated
hereby may be terminated and abandoned without penalty by resolution of the
Board of Trustees of AIC Trust and/or by resolution of the Board of Trustees of
ING Equity Trust, at any time prior to the Effective Time, if circumstances
should develop that, in the opinion of both or either Board, make proceeding
with the Agreement inadvisable.
14. AMENDMENT. This Agreement may be amended, modified or
supplemented in such manner as may be mutually agreed upon in writing by the
parties; provided, however, no such amendment may have the effect of changing
the provisions for determining the number or value of Acquiring Fund Shares to
be paid to the Acquired Fund's shareholders under this Agreement to the
detriment of such Acquired Fund's shareholders.
15. GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the Commonwealth of
Massachusetts.
16. NOTICES. Any notice, report, statement or demand required
or permitted by any provision of this Agreement shall be in writing and shall be
given by prepaid telegraph, telecopy,
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certified mail or overnight express courier addressed as follows:
if to the Acquiring Fund: if to the Acquired Fund:
Kimberly Anderson William E. Zitelli, Esq.
ING Equity Trust SEI Investments Company
7337 E. Doubletree Ranch Road One Freedom Valley Drive
Scottsdale, AZ 85258 Oaks, PA 19456
with a copy to: with a copy to:
Jeffrey S. Puretz, Esq. John M. Ford, Esq.
Dechert Morgan, Lewis & Bockius LLP
1775 Eye Street, NW 1111 Pennsylvania Avenue, NW
Washington, DC 20006 Washington, DC 20004
17. FEES AND EXPENSES.
(a) Each of the Acquiring Fund and the Acquired Fund
represents and warrants to the other that there are no brokers or
finders entitled to receive any payments in connection with the
transactions provided for herein.
(b) Except as otherwise provided for herein, all expenses of
the reorganization contemplated by this Agreement will be borne by ING
Investments, LLC, on behalf of the Acquired Fund. Such expenses
include, without limitation, (i) expenses incurred in connection with
the entering into and the carrying out of the provisions of this
Agreement; (ii) expenses associated with the preparation and filing of
the Proxy Materials under the 1934 Act; (iii) registration or
qualification fees and expenses of preparing and filing such forms as
are necessary under applicable state securities laws to qualify the
Acquiring Fund Shares to be issued in connection herewith in each state
in which the Acquired Fund's shareholders are resident as of the date
of the mailing of the Proxy Materials to such shareholders; (iv)
postage; (v) printing; (iv) accounting fees; (vii) legal fees; and
(viii) solicitation costs related to obtaining shareholder approval of
the transactions contemplated by this Agreement. Notwithstanding the
foregoing, the Acquiring Fund shall pay its own Federal and state
registration fees.
18. INDEMNIFICATION.
(a) ING Equity Trust, out of the assets of the Acquiring Fund
shall indemnify, defend and hold harmless the Acquired Fund, AIC Trust,
its Board of Trustees, officers, employees and agents (collectively
"Acquired Fund Indemnified Parties") against all losses, claims,
demands, liabilities and expenses, including reasonable legal and other
expenses incurred in defending third-party claims, actions, suits or
proceedings, whether or not resulting in any liability to such Acquired
Fund Indemnified Parties, including amounts paid by any one or more of
the Acquired Fund Indemnified Parties in a compromise or settlement of
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any such claim, action, suit or proceeding, or threatened third-party
claim, suit, action or proceeding made with the consent of ING Equity
Trust, on behalf of the Acquiring Fund, arising from any untrue
statement or alleged untrue statement of a material fact contained in
the Proxy Materials, as filed and in effect with the SEC, or any
application prepared by ING Equity Trust, on behalf of the Acquiring
Fund with any state regulatory agency in connection with the
transactions contemplated by this Agreement under the securities laws
thereof ("Application"); or which arises out of or is based upon any
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that ING Equity Trust and the Acquiring
Fund shall only be liable in such case to the extent that any such
loss, claim, demand, liability or expense arises out of or is based
upon an untrue statement or alleged untrue statement or omission or
alleged omission about ING Equity Trust and/or the Acquiring Fund or
the transactions contemplated by this Agreement made in the Proxy
Materials or any Application.
(b) AIC Trust, out of the assets of the Acquired Fund, shall
indemnify, defend, and hold harmless the Acquiring Fund, ING Equity
Trust, its Board of Trustees, officers, employees and agents
("Acquiring Fund Indemnified Parties") against all losses, claims,
demands, liabilities, and expenses, including reasonable legal and
other expenses incurred in defending third-party claims, actions, suits
or proceedings, whether or not resulting in any liability to such
Acquiring Fund Indemnified Parties, including amounts paid by any one
or more of the Acquiring Fund Indemnified Parties in a compromise or
settlement of any such claim, suit, action or proceeding, or threatened
third-party claim, suit, action or proceeding made with the consent of
AIC Trust, on behalf of the Acquired Fund (if the Acquired Fund still
exists), arising from any untrue statement or alleged untrue statement
of a material fact contained in the Proxy Materials, as filed and in
effect with the SEC or any Application; or which arises out of or is
based upon any omission or alleged omission to state therein a material
fact required to be stated therein and necessary to make the statements
therein not misleading; provided, however, that AIC Trust and the
Acquired Fund shall only be liable in such case to the extent that any
such loss, claim, demand, liability or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission
or alleged omission about AIC Trust and/or the Acquired Fund or about
the transactions contemplated by this Agreement made in the Proxy
Materials or any Application.
(c) ING Equity Trust, out of the Acquiring Fund's assets,
shall indemnify, defend, and hold harmless each of the Acquiring
Fund's Indemnified Parties from and against any and all losses, claims,
damage, liabilities, or expenses including, without limitation, the
payment of reasonable legal fees and other expenses incurred in
defending third-party claims, actions, suits or proceedings, whether
or not resulting in any liability to such Acquiring Fund Indemnified
Parties, including amounts paid by any one or more of the Acquiring
Fund Indemnified Parties in a compromise or settlement of any such
claim, action, suit or proceeding, or threatened third party claim,
suit, action or proceeding, insofar as any such loss, claim, damage,
liability, or expense (or actions with respect thereto) arises out of
any act, conduct or omission relating to the Acquired Fund prior to
the Effective Time.
(d) ING Equity Trust, out of the Acquiring Fund's assets,
shall indemnify, defend, and hold harmless each of the Acquired Fund's
Indemnified Parties from and against any and all losses, claims,
damage, liabilities, or expenses including without limitation, the
payment of reasonable legal fees and other expenses incurred in
defending third-party claims, actions, suits or proceedings, whether or
not resulting in any liability to such Acquired Fund Indemnified
Parties, including amounts paid by any one or more of the Acquired Fund
Indemnified Parties in a compromise or settlement of any such claim,
action, suit or proceeding, or threatened third party claim, suit,
action or proceeding, insofar as any such loss, claim, damage,
liability, or expense (or actions with respect thereto) arises out of
any act, conduct or omission relating to the Acquiring Fund subsequent
to the Effective Time.
(e) A party seeking indemnification hereunder is hereinafter
called the "indemnified party" and the party from whom the indemnified
party is seeking indemnification hereunder is hereinafter called the
"indemnifying party." Each indemnified party shall notify the
indemnifying party in writing within ten (10) days of the receipt by
one or more of the indemnified parties of any notice of legal process
of any suit brought against or claim made against such indemnified
party as to any matters covered by this Section 18, but the failure to
notify the indemnifying party shall not relieve the indemnifying party
from any liability which it may have to any indemnified party otherwise
than under this Section 18. The indemnifying party shall be entitled to
participate at its own expense in the defense of any claim, action,
suit, or proceeding covered by this Section 18, or, if it so elects, to
assume at its own expense the defense thereof with counsel satisfactory
to the indemnified parties; provided, however, if the defendants in any
such action include both the indemnifying party and any indemnified
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party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it which are different from or
additional to those available to the indemnifying party, the
indemnified party shall have the right to select separate counsel to
assume such legal defense and to otherwise participate in the defense
of such action on behalf of such indemnified party.
(f) Upon receipt of notice from the indemnifying party to the
indemnified parties of the election by the indemnifying party to assume
the defense of such action, the indemnifying party shall not be liable
to such indemnified parties under this Section 18 for any legal or
other expenses subsequently incurred by such indemnified parties in
connection with the defense thereof unless (i) the indemnified parties
shall have employed such counsel in connection with the assumption of
legal defenses in accordance with the provision of the immediately
preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate
counsel); (ii) the indemnifying party does not employ counsel
reasonably satisfactory to the indemnified parties to represent the
indemnified parties within a reasonable time after notice of
commencement of the action; or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified parties at its
expense.
(g) This Section 18 shall survive the termination of this
Agreement and for a period of five years following the Effective Date.
19. HEADINGS, COUNTERPARTS, ASSIGNMENT.
(a) The article and section headings contained in this
Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
(b) This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
(c) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns, but no assignment or transfer hereof or of any rights or
obligations hereunder shall be made by any party without the written
consent of the other party. Nothing herein expressed or implied is
intended or shall be construed to confer upon or give any person, firm
or corporation other than the parties hereto and their respective
successors and assigns any rights or remedies under or by reason of
this Agreement.
20. ENTIRE AGREEMENT. Each of the Acquiring Fund and the Acquired
Fund agree that neither party has made any representation, warranty or covenant
not set forth herein and that this Agreement constitutes the entire agreement
between the parties. The representations, warranties and covenants contained
herein or in any document delivered pursuant hereto or in connection herewith
shall survive the consummation of the transactions contemplated hereunder.
21. FURTHER ASSURANCES. Each of the Acquiring Fund and the
Acquired Fund shall take such further action as may be necessary or desirable
and proper to consummate the
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transactions contemplated hereby.
22. BINDING NATURE OF AGREEMENT. As provided in AIC Trust's
Declaration of Trust on file with the Secretary of the Commonwealth of
Massachusetts, this Agreement was executed by the undersigned officers and
trustees of AIC Trust, on behalf of the Acquired Fund, as officers and trustees
and not individually, and the obligations of this Agreement are not binding upon
the undersigned officers and trustees individually, but are binding only upon
the assets and property of AIC Trust. Moreover, no series of AIC Trust shall be
liable for the obligations of any other series of AIC Trust. This Agreement was
executed by the undersigned officers and trustees of ING Equity Trust, on behalf
of the Acquiring Fund, as officers and trustees and not individually, and the
obligations of this Agreement are not binding upon the undersigned officers and
trustees individually, but are binding only upon the assets and property of ING
Equity Trust. Moreover, no series of ING Equity Trust shall be liable for the
obligations of any other series of ING Equity Trust.
ING EQUITY TRUST, on behalf of its series, the ING Real Estate Fund
By:_____________________
Title:____________________
THE ADVISORS' INNER CIRCLE FUND, on behalf of its series, the CRA
Realty Shares Portfolio
By:_____________________
Title:____________________