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FORM OF AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the "Agreement") is made as
of _________, 2001, by and between BB&T Funds ("BB&T"), a Massachusetts business
trust, on behalf of the BB&T Funds as identified herein ("BB&T Funds") and The
Arbor Fund ("Arbor"), a Massachusetts business trust, on behalf of the OVB
Family of Funds as identified herein ("OVB Funds"). The capitalized terms used
herein shall have the meaning ascribed to them in this Agreement.
PLAN OF REORGANIZATION
(a) Arbor will sell, assign, convey, transfer and deliver to BB&T, and
BB&T will acquire, on the Exchange Date, all of the properties and assets
existing at the Valuation Time in the following funds:
OVB Equity Income Portfolio ("OVB Equity Income")
OVB Capital Appreciation Portfolio ("OVB Capital Appreciation")
OVB Government Securities Portfolio ("OVB Government Securities ")
OVB West Virginia Tax-Exempt Income Portfolio ("OVB West Virginia
Tax-Exempt")
OVB Prime Obligations Portfolio ("OVB Prime Obligations")
(such funds each are an "OVB Fund" and are collectively the "OVB
Funds").
Such acquisition is to be made by the following funds:
BB&T Mid Cap Value Fund ("BB&T Mid Cap ")
BB&T Capital Appreciation Fund ("BB&T Capital Appreciation")
BB&T Intermediate U.S. Government Bond Fund ("BB&T Intermediate
Government")
BB&T West Virginia Intermediate Tax-Free Fund ("BB&T West Virginia
Intermediate Tax-Free ")
BB&T Prime Money Market Fund ("BB&T Prime Money Market")
(such funds each are a "BB&T Fund" and are collectively the "BB&T
Funds").
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For purposes of this Agreement the respective OVB Funds correspond to the BB&T
Funds as follows:
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OVB Equity Income BB&T Mid Cap
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OVB Capital Appreciation BB&T Capital Appreciation
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OVB Government Securities BB&T Intermediate Government
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OVB West Virginia Tax-Exempt BB&T West Virginia Intermediate Tax-Free
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OVB Prime Obligations BB&T Prime Money Market
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In consideration therefor, each BB&T Fund shall, on the Exchange Date,
assume all of the liabilities of the corresponding OVB Fund and transfer to the
corresponding OVB Fund a number of full and fractional units of beneficial
interest ("BB&T Shares"), such Shares being BB&T Class A or Trust Shares of the
corresponding BB&T Fund having an aggregate net asset value equal to the value
of all of the assets of each OVB Fund transferred to the corresponding BB&T Fund
on such date less the value of all of the liabilities of each OVB Fund assumed
by the corresponding BB&T Fund on that date. It is intended that each
reorganization described in this Agreement shall be a tax-free reorganization
under the Internal Revenue Code of 1986, as amended (the "Code").
(b) Upon consummation of the transactions described in paragraph (a) of
this Agreement, each OVB Fund in complete liquidation shall distribute to its
respective shareholders of record as of the Exchange Date the BB&T Shares
received by it, each shareholder being entitled to receive that number of BB&T
Shares equal to the proportion which the number of units of beneficial interest
("OVB Shares") of the OVB Fund held by such shareholder bears to the number of
such OVB Shares of the OVB Fund outstanding on such date. OVB Fund shareholders
of record holding OVB Class B Shares will receive BB&T Class A Shares; and OVB
Fund shareholders of record holding OVB Class A Shares will receive BB&T Trust
Shares.
AGREEMENT
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BB&T and Arbor represent, warrant and agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF ARBOR. Each of Arbor and each OVB
Fund represent and warrant to and agree with BB&T and each BB&T Fund that:
(a) Arbor is a business trust duly organized and validly existing under
the laws of The Commonwealth of Massachusetts and has power to own all of its
properties and assets and to carry out its obligations under this Agreement.
Arbor and each OVB Fund are not required to qualify as foreign associations in
any jurisdiction where the failure to so qualify would have a material adverse
effect on Arbor or the OVB Funds. Arbor and each OVB Fund have all necessary
federal, state and local authorizations to carry on its business as now being
conducted
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and to fulfill the terms of this Agreement, except for shareholder approval and
as otherwise described in Section 1(l).
(b) Arbor is registered under the Investment Company Act of 1940, as
amended (the "1940 Act"), as an open-end management investment company, and such
registration has not been revoked or rescinded and is in full force and effect.
Each OVB Fund has elected to qualify and has qualified as a regulated investment
company under Part I of Subchapter M of the Code, as of and since its first
taxable year, and qualifies and intends to continue to qualify as a regulated
investment company through the Exchange Date. Each OVB Fund has been a regulated
investment company under such sections of the Code at all times since its
inception.
(c) The statements of assets and liabilities, statements of operations,
statements of changes in net assets and schedules of portfolio investments
(indicating their market values) for each OVB Fund at and for the year ended
January 31, 2001, such statements and schedules having been audited by
PricewaterhouseCoopers LLP, independent accountants to Arbor, will be furnished
to BB&T. Such statements of assets and liabilities and schedules of portfolio
investments fairly present the financial position of each OVB Fund as of their
respective dates and said statements of operations and changes in net assets
fairly reflect the results of operations and changes in net assets for the
periods covered thereby in conformity with generally accepted accounting
principles.
(d) The prospectus of the OVB Funds dated May 31, 2001 (the "OVB
Prospectus") and the Statement of Additional Information for the OVB Funds dated
May 31, 2001 (the "OVB Statement of Additional Information") and on file with
the Securities and Exchange Commission, which have been previously furnished to
BB&T, did not as of their dates and do not as of the date hereof contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) There are no material legal, administrative or other proceedings
pending or, to the knowledge of Arbor or any OVB Fund, overtly threatened
against Arbor or any OVB Fund which assert liability on the part of Arbor or any
OVB Fund.
(f) There are no material contracts outstanding to which Arbor, with
respect to the OVB Funds, or any OVB Fund is a party, other than as disclosed in
the OVB Prospectus and the corresponding OVB Statement of Additional Information
or in the Registration Statement and the Proxy Statement.
(g) Neither Arbor, with respect to the OVB Funds, nor any OVB Fund has
any known liabilities of a material nature, contingent or otherwise, other than
those shown as belonging to it on its statement of assets and liabilities as of
January 31, 2001, and those incurred in the ordinary course of Arbor's business
as an investment company since that date. Prior to the Exchange Date, Arbor will
advise BB&T of all known material liabilities, contingent or otherwise, incurred
by it, with respect to the OVB Funds, and each OVB Fund subsequent to January
31, 2001, whether or not incurred in the ordinary course of business.
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(h) As used in this Agreement, the term "Investments" shall mean each
OVB Fund's investments shown on the schedule of its portfolio investments as of
January 31, 2001, referred to in Section 1(c) hereof, as supplemented with such
changes as Arbor or each OVB Fund shall make after January 31, 2001, which
changes shall be disclosed to BB&T, and changes resulting from stock dividends,
stock split-ups, mergers and similar corporate actions.
(i) Each OVB Fund has filed or will file all federal and other tax
returns which, to the knowledge of Arbor's officers, are required to be filed by
each OVB Fund and has paid or will pay all federal and other taxes shown to be
due on said returns or on any assessments received by each OVB Fund. To the best
of such officers' knowledge, all tax liabilities of each OVB Fund have been
adequately provided for on its books, and no tax deficiency or liability of any
OVB Fund has been asserted, and no question with respect thereto has been
raised, by the Internal Revenue Service or by any state or local tax authority
for taxes in excess of those already paid.
(j) As of both the Valuation Time and the Exchange Date and except for
shareholder approval and otherwise as described in Section 1(l), Arbor on behalf
of each OVB Fund will have full right, power and authority to sell, assign,
transfer and deliver the Investments and any other assets and liabilities of
each OVB Fund to be transferred to the corresponding BB&T Fund pursuant to this
Agreement. At the Exchange Date, subject only to the delivery of the Investments
and any such other assets and liabilities as contemplated by this Agreement,
BB&T will, on behalf of each BB&T Fund, acquire the Investments and any such
other assets subject to no encumbrances, liens or security interests in favor of
any third party creditor of Arbor or an OVB Fund and, except as described in
Section 1(k), without any restrictions upon the transfer thereof.
(k) Except as to Investments otherwise disclosed as unregistered
securities pursuant to Section 1(h) hereof, no registration under the Securities
Act of 1933, as amended (the "1933 Act"), of any of the Investments would be
required if they were, as of the time of such transfer, the subject of a public
distribution by either of Arbor or BB&T.
(l) No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by Arbor on behalf of
the OVB Funds or any OVB Fund of the transactions contemplated by this
Agreement, except such as may be required under the 1933 Act, the Securities
Exchange Act of 1934, as amended (the "1934 Act"), the 1940 Act, state
securities or blue sky laws (which term as used herein shall include the laws of
the District of Columbia and of Puerto Rico) or the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 (the "H-S-R Act").
(m) The registration statement (the "Registration Statement") filed
with the Securities and Exchange Commission (the "Commission") by BB&T on Form
N-14 relating to the BB&T Shares issuable hereunder, and the proxy statement of
Arbor included therein (the "Proxy Statement"), on the effective date of the
Registration Statement and insofar as they relate to Arbor and the OVB Funds,
(i) will comply in all material respects with the provisions of the 1933 Act,
the 1934 Act and the 1940 Act and the rules and regulations thereunder and (ii)
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or
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necessary to make the statements therein, in light of the circumstances under
which such statements were made, not misleading; and at the time of the
shareholders' meeting referred to in Section 8(a) below and on the Exchange
Date, the prospectus contained in the Registration Statement of which the Proxy
Statement is a part (the "Prospectus"), as amended or supplemented by any
amendments or supplements filed with the Commission by BB&T, insofar as it
relates to Arbor and the OVB Funds, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which such statements were made, not misleading; provided, however, that none of
the representations and warranties in this subsection shall apply to statements
in or omissions from the Registration Statement, the Prospectus or the Proxy
Statement, made in reliance upon or in conformity with information furnished by
BB&T, or any BB&T Fund, for use in the Registration Statement, Prospectus, or
Proxy Statement.
(n) All of the issued and outstanding OVB Shares of each OVB Fund have
been offered for sale and sold in conformity with all applicable federal and
state securities laws.
(o) Each OVB Fund and Arbor through its administrator, transfer agent,
custodian or otherwise, will cooperate fully and in a timely manner with BB&T in
completing each of the actions required of it and its agents and necessary for
consummation of the transactions described in Sections 3 (a) and (b) of this
Agreement.
2. REPRESENTATIONS AND WARRANTIES OF BB&T. Each of BB&T and each BB&T
Fund jointly and severally represent and warrant to and agree with Arbor and
each OVB Fund that:
(a) BB&T is a business trust duly established and validly existing
under the laws of The Commonwealth of Massachusetts and has power to carry on
its business as it is now being conducted and to carry out this Agreement. BB&T
and each BB&T Fund are not required to qualify as foreign associations in any
jurisdiction. BB&T and each BB&T Fund have all necessary federal, state and
local authorizations to own all of its properties and assets and to carry on its
business as now being conducted and to fulfill the terms of this Agreement,
except as set forth in Section 2(i).
(b) BB&T is registered under the 1940 Act as an open-end management
investment company, and such registration has not been revoked or rescinded and
is in full force and effect. Each BB&T Fund that has had active operations prior
to the Exchange Date, has elected to qualify and has qualified as a regulated
investment company under Part I of Subchapter M of the Code, as of and since its
first taxable year, and qualifies and intends to continue to qualify as a
regulated investment company for its current tax year. Each BB&T Fund that has
had actual operations prior to the Exchange Date has been a regulated investment
company under such sections of the Code at all times since its inception. BB&T
Mid Cap, BB&T Capital Appreciation, and BB&T West Virginia Intermediate Tax-Free
, which have not had active operations prior to the Exchange Date, intend to
qualify as regulated investment companies under Part I of Subchapter M of the
Code.
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(c) The statements of assets and liabilities, statements of operations,
statements of changes in net assets and schedules of investments (indicating
their market values) for each BB&T Fund for the year ended September 30, 2000,
such statements and schedules having been audited by KPMG LLP, independent
accountants to BB&T, have been furnished to Arbor.
(d) The prospectuses of the BB&T Funds dated February 1, 2001, (the
"BB&T Prospectuses"), and the Statement of Additional Information for the BB&T
Funds, dated February 1, 2001 (the "BB&T Statement of Additional Information")
and on file with the Securities and Exchange Commission, which have been
previously furnished to Arbor, did not as of their dates and do not as of the
date hereof contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(e) There are no material legal, administrative or other proceedings
pending or, to the knowledge of BB&T or any BB&T Fund, overtly threatened
against BB&T or any BB&T Fund which assert liability on the part of BB&T or any
BB&T Fund.
(f) There are no material contracts outstanding to which BB&T or any
BB&T Fund is a party, other than as disclosed in the BB&T Prospectuses and the
corresponding Statement of Additional Information or in the Registration
Statement.
(g) Neither BB&T nor any BB&T Fund has any known liabilities of a
material nature, contingent or otherwise, other than those shown on its
statement of assets and liabilities as of September 30, 2000, referred to above
and those incurred in the ordinary course of the business of BB&T as an
investment company or any BB&T Fund since such date. Prior to the Exchange Date,
BB&T will advise Arbor of all known material liabilities, contingent or
otherwise, incurred by it and each BB&T Fund subsequent to September 30, 2000,
whether or not incurred in the ordinary course of business.
(h) Each BB&T Fund has filed or will file all federal and other tax
returns which, to the knowledge of BB&T's officers, are required to be filed by
each BB&T Fund and has paid or will pay all federal and other taxes shown to be
due on said returns or on any assessments received by each BB&T Fund. To the
best of such officers' knowledge, all tax liabilities of each BB&T Fund have
been adequately provided for on its books, and no tax deficiency or liability of
any BB&T Fund has been asserted, and no question with respect thereto has been
raised, by the Internal Revenue Service or by any state or local tax authority
for taxes in excess of those already paid.
(i) No consent, approval, authorization or order of any governmental
authority is required for the consummation by BB&T or any BB&T Fund of the
transactions contemplated by this Agreement, except such as may be required
under the 1933 Act, the 1934 Act, the 1940 Act, state securities or Blue Sky
laws or the H-S-R Act.
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(j) As of both the Valuation Time and the Exchange Date and otherwise
as described in Section 2(i), BB&T on behalf of each BB&T Fund will have full
right, power and authority to purchase the Investments and any other assets and
assume the liabilities of each OVB Fund to be transferred to the corresponding
BB&T Fund pursuant to this Agreement.
(k) The Registration Statement, the Prospectus and the Proxy Statement,
on the effective date of the Registration Statement and insofar as they relate
to BB&T and the BB&T Funds: (i) will comply in all material respects with the
provisions of the 1933 Act, the 1934 Act and the 1940 Act and the rules and
regulations thereunder and (ii) will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading; and at the time of the shareholders' meeting
referred to in Section 8(a) and at the Exchange Date, the Prospectus, as amended
or supplemented by any amendments or supplements filed with the Commission by
BB&T or any BB&T Fund, will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading; provided, however, that none of the representations and
warranties in this subsection shall apply to statements in or omissions from the
Registration Statement, the Prospectus or the Proxy Statement made in reliance
upon and in conformity with information furnished by Arbor or any OVB Fund for
use in the Registration Statement, the Prospectus or the Proxy Statement.
(l) BB&T Shares to be issued to each OVB Fund have been duly authorized
and, when issued and delivered pursuant to this Agreement and the Prospectus,
will be legally and validly issued and will be fully paid and nonassessable by
BB&T and no shareholder of BB&T will have any preemptive right of subscription
or purchase in respect thereof.
(m) The issuance of BB&T Shares pursuant to this Agreement will be in
compliance with all applicable federal and state securities laws.
(n) Each of BB&T Intermediate Government and BB&T Prime Money Market,
is qualified and will at all times through the Exchange Date qualify for
taxation as a "regulated investment company" under Sections 851 and 852 of the
Code. BB&T Mid Cap, BB&T Capital Appreciation, and BB&T West Virginia
Intermediate Tax-Free , upon filing of their first income tax returns at the
completion of their first taxable year will elect to be regulated investment
companies and until such time will take all steps necessary to ensure
qualification as regulated investment companies under Sections 851 and 852 of
the Code.
(o) BB&T through its administrator, transfer agent, custodian or
otherwise, will cooperate fully and in a timely manner with Arbor and each OVB
Fund in completing each of the actions required of it and its agents and
necessary for consummation of the transactions described in Sections 3 (a) and
(b) of this Agreement.
3. REORGANIZATION. (a) Subject to the requisite approval of the
shareholders of each OVB Fund and to the other terms and conditions contained
herein (including each OVB
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Fund's obligation to distribute to its respective shareholders all of its
investment company taxable income and net capital gain as described in Section
9(k) hereof), Arbor and each OVB Fund agree to sell, assign, convey, transfer
and deliver to the corresponding BB&T Fund, and each BB&T Fund agree to acquire
from the corresponding OVB Fund, on the Exchange Date all of the Investments and
all of the cash and other assets of each OVB Fund in exchange for that number of
BB&T Shares of the corresponding BB&T Fund provided for in Section 4 and the
assumption by the corresponding BB&T Fund of all of the liabilities of the OVB
Fund. Pursuant to this Agreement, such OVB Fund will, as soon as practicable
after the Exchange Date, distribute in liquidation all of the BB&T Shares
received by it to its shareholders in exchange for their OVB Shares of such OVB
Fund.
(b) Arbor, on behalf of each OVB Fund, will pay or cause to be paid to
the corresponding BB&T Fund any interest and cash dividends received by it on or
after the Exchange Date with respect to the Investments transferred to the BB&T
Funds hereunder. Arbor, on behalf of each OVB Fund, will transfer to the
corresponding BB&T Fund any rights, stock dividends or other securities received
by Arbor or any OVB Fund after the Exchange Date as stock dividends or other
distributions on or with respect to the Investments transferred, which rights,
stock dividends and other securities shall be deemed included in the assets
transferred to each BB&T Fund at the Exchange Date and shall not be separately
valued, in which case any such distribution that remains unpaid as of the
Exchange Date shall be included in the determination of the value of the assets
of the OVB Fund acquired by the corresponding BB&T Fund.
4. EXCHANGE DATE; VALUATION TIME. On the Exchange Date, BB&T will
deliver to Arbor a number of BB&T Shares having an aggregate net asset value
equal to the value of the assets attributable to each class of OVB Shares of the
corresponding OVB Fund acquired by each BB&T Fund, less the value of the
liabilities of such OVB Fund assumed, determined as hereafter provided in this
Section 4.
(a) Subject to Section 4(d) hereof, the value of each OVB Fund's net
assets will be computed as of the Valuation Time using the valuation procedures
for the corresponding BB&T Fund set forth in the BB&T Prospectuses and BB&T
Statement of Additional Information. In no event shall the same security held by
both an OVB Fund and BB&T be valued at different prices.
(b) Subject to Section 4(d) hereof, the net asset value of a share of
each BB&T Fund will be determined to the nearest full cent as of the Valuation
Time, using the valuation procedures set forth in the BB&T Prospectuses for the
particular BB&T Fund.
(c) Subject to Section 4(d), the Valuation Time shall be 4:00 p.m.
Eastern Standard time on July 20, 2001 for all of the OVB Funds, or such earlier
or later days as may be mutually agreed upon in writing by the parties hereto
(the "Valuation Time").
(d) No formula will be used to adjust the net asset value of any OVB
Fund or BB&T Fund to take into account differences in realized and unrealized
gains and losses.
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(e) Each BB&T Fund shall issue its BB&T Shares to the corresponding OVB
Fund on one share deposit receipt registered in the name of the corresponding
OVB Fund. Each OVB Fund shall distribute in liquidation the BB&T Shares received
by it hereunder pro rata to its shareholders by redelivering such share deposit
receipt to BB&T's transfer agent which will as soon as practicable set up open
accounts for each OVB Fund shareholders in accordance with written instructions
furnished by Arbor.
(f) Each BB&T Fund shall assume all liabilities of the corresponding
OVB Fund, whether accrued or contingent, in connection with the acquisition of
assets and subsequent dissolution of the corresponding OVB Fund or otherwise,
except that recourse for assumed liabilities relating to a particular OVB Fund
will be limited to the corresponding BB&T Fund.
5. EXPENSES, FEES, ETC. (a) Subject to subsections 5(b) through 5(e),
all fees and expenses, including accounting expenses, portfolio transfer taxes
(if any) or other similar expenses incurred directly in connection with the
consummation by BB&T and Arbor of the transactions contemplated by this
Agreement will be borne by BB&T Bank, including the costs of proxy materials,
proxy solicitation, and legal expenses; PROVIDED, HOWEVER, that such expenses
will in any event be paid by the party directly incurring such expenses if and
to the extent that the payment by the other party of such expenses would result
in the disqualification of any BB&T Fund or any OVB Fund, as the case may be, as
a "regulated investment company" within the meaning of Section 851 of the Code.
Fees and expenses not incurred directly in connection with the consummation of
the Transaction will be borne by the party incurring such fees and expenses.
(b) In the event the transactions contemplated by this Agreement are
not consummated by reason of Arbor being either unwilling or unable to go
forward (other than by reason of the nonfulfillment or failure of any condition
to Arbor's obligations referred to in Section 8(a) or Section 10), Arbor shall
pay directly all reasonable fees and expenses incurred by BB&T in connection
with such transactions, including, without limitation, legal, accounting and
filing fees.
(c) In the event the transactions contemplated by this Agreement are
not consummated by reason of BB&T being either unwilling or unable to go forward
(other than by reason of the nonfulfillment or failure of any condition to
BB&T's obligations referred to in Section 8(a) or Section 9), BB&T shall pay
directly all reasonable fees and expenses incurred by Arbor in connection with
such transactions, including without limitation legal, accounting and filing
fees.
(d) In the event the transactions contemplated by this Agreement are
not consummated for any reason other than (i) BB&T or Arbor being either
unwilling or unable to go forward or (ii) the nonfulfillment or failure of any
condition to Arbor's or BB&T's obligations referred to in Section 8(a), Section
9 or Section 10 of this Agreement, then each of Arbor and BB&T shall bear the
expenses it has actually incurred in connection with such transactions.
(e) Notwithstanding any other provisions of this Agreement, if for any
reason the transactions contemplated by this Agreement are not consummated, no
party shall be liable to the
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other party for any damages resulting therefrom, including without limitation
consequential damages, except as specifically set forth above.
6. PERMITTED ASSETS. BB&T and Arbor agree to review the assets of the
OVB Funds to ensure that at any time prior to the Exchange Date the assets of
any OVB Fund do not include any assets that the corresponding BB&T Fund is not
permitted, or reasonably believes to be unsuitable for it, to acquire, including
without limitation any security that, prior to its acquisition by any OVB Fund,
is unsuitable for the corresponding BB&T Fund to acquire.
7. EXCHANGE DATE. Delivery of the assets of the OVB Funds to be
transferred, assumption of the liabilities of the OVB Funds to be assumed, and
the delivery of BB&T Shares to be issued shall be made on July 23, 2001 at 10:00
a.m. or at such other times and dates agreed to by Arbor and BB&T, the date and
time upon which such delivery is to take place being referred to herein as the
"Exchange Date."
8. SPECIAL MEETING OF SHAREHOLDERS; DISSOLUTION. (a) Arbor agrees to
call a special meeting of the shareholders of each OVB Fund as soon as is
practicable after the effective date of the Registration Statement for the
purpose of considering the sale of all of the assets of each OVB Fund to and the
assumption of all of the liabilities of each OVB Fund by the corresponding BB&T
Fund as herein provided, approving this Agreement, and authorizing the
liquidation and dissolution of each OVB Fund, and, except as set forth in
Section 13, it shall be a condition to the obligations of each of the parties
hereto that the holders of the OVB Shares of each OVB Fund shall have approved
this Agreement and the transactions contemplated herein in the manner required
by law and Arbor's Declaration of Trust and Bylaws at such a meeting on or
before the Valuation Time.
(b) Arbor and each OVB Fund agree that the liquidation of each OVB Fund
will be effected in the manner provided in Arbor's Declaration of Trust and
Bylaws in accordance with applicable law, that it will not make any
distributions of any BB&T Shares to the shareholders of an OVB Fund without
first paying or adequately providing for the payment of all of such OVB Fund's
known debts, obligations and liabilities.
(c) Each of BB&T and Arbor will cooperate with the other, and each will
furnish to the other the information relating to itself required by the 1933
Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder to
be set forth in the Registration Statement, including the Prospectus and the
Proxy Statement.
9. CONDITIONS TO BB&T'S OBLIGATIONS. The obligations of BB&T and each
BB&T Fund hereunder shall be subject to the following conditions:
(a) That this Agreement shall have been approved and the transactions
contemplated hereby, including the liquidation of the OVB Funds, shall have been
approved by the Arbor Fund's Board of Trustees and the shareholders of each OVB
Fund in the manner required by law.
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(b) Arbor shall have furnished to BB&T a statement of each OVB Fund's
assets and liabilities, with values determined as provided in Section 4 of this
Agreement, together with a list of Investments with their respective tax costs,
all as of the Valuation Time, certified on Arbor's behalf by its President (or
any Vice President) and Treasurer, and a certificate of both such officers,
dated the Exchange Date, to the effect that as of the Valuation Time and as of
the Exchange Date there has been no material adverse change in the financial
position of any OVB Fund since January 31, 2001, other than changes in the
Investments since that date or changes in the market value of the Investments,
or changes due to net redemptions of OVB Shares of the OVB Funds, dividends paid
or losses from operations.
(c) As of the Valuation Time and as of the Exchange Date, all
representations and warranties of Arbor and each OVB Fund made in this Agreement
are true and correct in all material respects as if made at and as of such
dates, Arbor and each OVB Fund has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at or
prior to each of such dates, and Arbor shall have furnished to BB&T a statement,
dated the Exchange Date, signed by Arbor's President (or any Vice President) and
Treasurer certifying those facts as of such dates.
(d) Arbor shall have delivered to BB&T a letter from
PricewaterhouseCoopers LLP dated the Exchange Date stating that such firm
reviewed the federal and state income tax returns of each OVB Fund for the year
ended January 31, 2001 and that, in the course of such review, nothing came to
their attention which caused them to believe that such returns did not properly
reflect, in all material respects, the federal and state income taxes of each
OVB Fund for the periods covered thereby, or that each OVB Fund would not
qualify as a regulated investment company for federal income tax purposes.
(e) There shall not be any material litigation pending with respect to
the matters contemplated by this Agreement.
(f) BB&T shall have received an opinion of Xxxxxx, Xxxxx & Xxxxxxx LLP,
in form reasonably satisfactory to BB&T and dated the Exchange Date, to the
effect that (i) Arbor is a business trust duly organized and validly existing
under the laws of The Commonwealth of Massachusetts, (ii) this Agreement has
been duly authorized, executed, and delivered by Arbor on behalf of the OVB
Funds and, assuming that the Registration Statement, the Prospectus and the
Proxy Statement comply with the 1933 Act, the 1934 Act and the 1940 Act and
assuming due authorization, execution and delivery of this Agreement by BB&T, is
a valid and binding obligation of Arbor with respect to the OVB Funds, subject
to the effect of bankruptcy, insolvency, moratorium, fraudulent conveyance and
similar laws relating to or affecting creditors' rights generally and court
decisions with respect thereto, and such counsel shall not be required to
express an opinion with respect to the application of equitable principles in
any proceeding, whether at law or in equity, or with respect to the provisions
of this Agreement intended to limit liability for particular matters to an OVB
Fund and its assets, (iii) Arbor has power to sell, assign, convey, transfer and
deliver the Investments and other assets contemplated hereby and, upon
consummation of the transactions contemplated hereby in accordance with the
terms of this Agreement, Arbor and each OVB Fund will have duly sold, assigned,
conveyed, transferred and
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delivered such Investments and other assets to BB&T, (iv) the execution and
delivery of this Agreement did not, and the consummation of the transactions
contemplated hereby will not, violate Arbor's Declaration of Trust and Bylaws or
any provision of an agreement known to such counsel (without any independent
inquiry or investigation) to which Arbor, with respect to the OVB Funds, or any
OVB Fund is a party or by which it is bound, it being understood that with
respect to investment restrictions as contained in Arbor's Declaration of Trust
and Bylaws, such counsel may rely upon a certificate of an officer of Arbor
whose responsibility it is to advise Arbor with respect to such matters, and (v)
to such counsel's knowledge, no consent, approval, authorization or order of any
court or governmental authority is required for the consummation by Arbor on
behalf of the OVB Funds or any OVB Fund of the transactions contemplated hereby,
except such as have been obtained under the 1933 Act, the 1934 Act and the 1940
Act and such as may be required under state securities or blue sky laws and the
H-S-R Act, and it being understood that such opinion shall not be deemed to
apply to BB&T's compliance obligations under the 1933 Act, 1934 Act, 1940 Act,
state securities or blue sky laws and H-S-R Act. Such opinion may rely on the
opinion of other counsel to the extent set forth in such opinion, provided such
other counsel is reasonably acceptable to BB&T.
(g) BB&T shall have received an opinion of Ropes & Xxxx,
counsel to BB&T addressed to BB&T and each BB&T Fund, and to Arbor and each OVB
Fund in form reasonably satisfactory to BB&T and dated the Exchange Date (which
opinion would be based upon certain factual representations and subject to
certain qualifications), to the effect that, on the basis of the existing
provisions of the Code, current administrative rules and court decisions, for
Federal income tax purposes: (i) the transaction will constitute a
reorganization within the meaning of Section 368(a) of the Code, and the BB&T
Fund and the OVB Fund each will be a "party to a reorganization" within the
meaning of Section 368(b) of the Code; (ii) no gain or loss will be recognized
by the BB&T Fund upon the receipt of the assets of the OVB Fund in exchange for
BB&T Shares and the assumption by the BB&T Fund of the liabilities of the OVB
Fund; (iii) the basis in the hands of the BB&T Fund of the assets of the OVB
Fund transferred to the BB&T Fund in a transaction will be the same as the basis
of such assets in the hands of the OVB Fund immediately prior to the transfer;
(iv) the holding periods of the assets of the OVB Fund in the hands of the BB&T
Fund will include the periods during which such assets were held by the OVB
Fund; (v) no gain or loss will be recognized by the OVB Fund upon the transfer
of the OVB Fund's assets to the BB&T Fund in exchange for BB&T Shares and the
assumption by the BB&T Fund of the liabilities of the OVB Fund, or upon the
distribution of BB&T Shares by the OVB Fund to its shareholders in liquidation;
(vi) no gain or loss will be recognized by the OVB Fund's shareholders upon the
exchange of their OVB Shares for BB&T Shares; (vii) the aggregate basis of BB&T
Shares an OVB Fund's shareholder receives in connection with the transaction
will be the same as the aggregate basis of his or her OVB Shares exchanged
therefor; (viii) an OVB Fund shareholder's holding period for his or her BB&T
Shares will be determined by including the period for which he or she held the
OVB Shares exchanged therefor, provided that he or she held such OVB Shares as
capital assets; and (ix) the BB&T Fund will succeed to and take into account the
items of the OVB Fund described in Section 381(c) of the Code. The BB&T Fund
will take these items into account subject to the conditions and limitations
specified in Sections 381, 382, 383 and 384 of the Code and the Regulations
thereunder.
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(h) Subject to the parties' compliance with Section 6 hereof, the
assets of each OVB Fund to be acquired by the corresponding BB&T Fund will
include no assets which the corresponding BB&T Fund, by reason of limitations
contained in its Declaration of Trust or of investment restrictions disclosed in
the BB&T Prospectuses in effect on the Exchange Date, may not properly acquire.
BB&T shall not change the BB&T Declaration of Trust and the BB&T Prospectuses so
as to restrict permitted investments for each BB&T Fund except as required by
the Commission or any state regulatory authority.
(i) The Registration Statement shall have become effective under the
1933 Act and applicable Blue Sky provisions, and no stop order suspending such
effectiveness shall have been instituted or, to the knowledge of BB&T,
contemplated by the Commission and or any state regulatory authority.
(j) All proceedings taken by Arbor in connection with the transactions
contemplated by this Agreement and all documents incidental thereto reasonably
shall be satisfactory in form and substance to BB&T.
(k) Prior to the Exchange Date, each OVB Fund (other than an OVB Fund
that will combine with a BB&T Fund in a manner qualifying for treatment under
Section 368(a)(1)(F) of the Code) shall have declared a dividend or dividends
which, together with all previous such dividends, shall have the effect of
distributing to its shareholders all of its investment company taxable income
for its taxable year ended January 31, 2001 and the short taxable year beginning
February 1, 2001 and ending on the Exchange Date (computed without regard to any
deduction for dividends paid), and all of the OVB Fund's net capital gain
realized in its taxable year ended January 31, 2001 and the short taxable year
beginning on February 1, 2001 and ending on the Exchange Date (after reduction
for any capital loss carryover).
(l) Arbor shall have furnished to BB&T a certificate, signed by the
President (or any Vice President) and the Treasurer of Arbor, as to the tax cost
to Arbor of the securities delivered to BB&T pursuant to this Agreement,
together with any such other evidence as to such tax cost as BB&T may reasonably
request.
(m) OVB Funds' custodian shall have delivered to BB&T a certificate
identifying all of the assets of each OVB Fund held by such custodian as of the
Valuation Time.
(n) OVB Funds' transfer agent shall have provided to BB&T's transfer
agent (i) the originals or true copies of all of the records of each OVB Fund in
the possession of such OVB transfer agent as of the Exchange Date, (ii) a record
specifying the number of OVB Shares of each OVB Fund outstanding as of the
Valuation Time and (iii) a record specifying the name and address of each holder
of record of any such OVB Shares of each OVB Fund and the number of OVB Shares
held of record by each such shareholder as of the Valuation Time. OVB's transfer
agent shall also have provided BB&T with a certificate confirming that the acts
specified in the preceding sentence have been taken and that the information so
supplied is complete and accurate to the best knowledge of the transfer agent.
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(o) All of the issued and outstanding OVB Shares of each OVB Fund shall
have been offered for sale and sold in conformity with all applicable federal or
state securities or blue sky laws and, to the extent that any audit of the
records of Arbor or any OVB Fund or its transfer agent by BB&T or its agents
shall have revealed otherwise, either (i) Arbor and each OVB Fund shall have
taken all actions that in the reasonable opinion of BB&T are necessary to remedy
any prior failure on the part of Arbor to have offered for sale and sold such
OVB Shares in conformity with such laws or (ii) Arbor shall have furnished (or
caused to be furnished) surety, or deposited (or caused to be deposited) assets
in escrow, for the benefit of BB&T in amounts sufficient and upon terms
satisfactory, in the opinion of BB&T or its counsel, to indemnify BB&T against
any expense, loss, claim, damage or liability whatsoever that may be asserted or
threatened by reason of such failure on the part of Arbor to have offered and
sold such OVB Shares in conformity with such laws.
(p) BB&T shall have received from KPMG LLP a letter addressed to BB&T
dated as of the Exchange Date reasonably satisfactory in form and substance to
BB&T and Arbor to the effect that, on the basis of limited procedures agreed
upon by BB&T and Arbor and described in such letter (but not an examination in
accordance with generally accepted auditing standards), as of the Valuation Time
the value of the assets of each OVB Fund to be exchanged for the BB&T Shares
have been determined in accordance with the valuation procedures for the
corresponding BB&T Fund as set forth in the BB&T Prospectuses and Statement of
Additional Information.
(q) Arbor shall have duly executed and delivered to BB&T bills of sale,
assignments, certificates and other instruments of transfer ("Transfer
Documents") as BB&T may deem necessary or desirable to transfer all of Arbor's
and each OVB Fund's entire right, title and interest in and to the Investments
and all other assets of each OVB Fund.
10. CONDITIONS TO ARBOR'S OBLIGATIONS. The obligations of Arbor and
each OVB Fund hereunder shall be subject to the following conditions:
(a) This Agreement shall have been adopted and the transactions
contemplated hereby, including the liquidation of the OVB Funds, shall have been
approved by the Arbor Fund's Board of Trustees and the shareholders of each OVB
Fund in the manner required by law.
(b) BB&T shall have furnished to Arbor a statement of each BB&T Fund's
net assets, together with a list of portfolio holdings with values determined as
provided in Section 4, all as of the Valuation Time, certified on BB&T's behalf
by its President (or any Vice President) and Treasurer (or any Assistant
Treasurer), and a certificate of both such officers, dated the Exchange Date, to
the effect that as of the Valuation Time and as of the Exchange Date there has
been no material adverse change in the financial position of any BB&T Fund since
September 30, 2000, other than changes in its portfolio securities since that
date, changes in the market value of its portfolio securities, changes due to
net redemptions, dividends paid or losses from operations.
(c) BB&T shall have executed and delivered to Arbor an Assumption of
Liabilities dated as of the Exchange Date pursuant to which each BB&T Fund will
assume all of the liabilities of
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the corresponding OVB Fund existing at the Valuation Time in connection with the
transactions contemplated by this Agreement.
(d) As of the Valuation Time and as of the Exchange Date, all
representations and warranties of BB&T and each BB&T Fund made in this Agreement
are true and correct in all material respects as if made at and as of such
dates, BB&T and each BB&T Fund has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied at or
prior to each of such dates, and BB&T shall have furnished to Arbor a statement,
dated the Exchange Date, signed by BB&T's President (or any Vice President) and
Treasurer certifying those facts as of such dates.
(e) There shall not be any material litigation pending with respect to
the matters contemplated by this Agreement.
(f) Arbor shall have received an opinion of Ropes & Xxxx, in form
reasonably satisfactory to Arbor and dated the Exchange Date, to the effect that
(i) BB&T is a business trust and validly existing in conformity with the laws of
The Commonwealth of Massachusetts, and, to the knowledge of such counsel,
neither BB&T nor any BB&T Fund is required to qualify to do business as a
foreign association in any jurisdiction, (ii) the BB&T Shares to be delivered to
Arbor as provided for by this Agreement are duly authorized and upon such
delivery will be validly issued and will be fully paid and nonassessable by BB&T
and no shareholder of BB&T has any preemptive right to subscription or purchase
in respect thereof, (iii) this Agreement has been duly authorized, executed and
delivered by BB&T and, assuming that the Prospectus, the Registration Statement
and the Proxy Statement comply with the 1933 Act, the 1934 Act and the 1940 Act
and assuming due authorization, execution and delivery of this Agreement by
Arbor, is a valid and binding obligation of BB&T, (iv) the execution and
delivery of this Agreement did not, and the consummation of the transactions
contemplated hereby will not, violate BB&T's Declaration of Trust, as amended,
or Bylaws, or any provision of any agreement known to such counsel to which BB&T
or any BB&T Fund is a party or by which it is bound, it being understood that
with respect to investment restrictions as contained in BB&T's Declaration of
Trust, as amended, Bylaws or then-current prospectus or statement of additional
information of each BB&T Fund, such counsel may rely upon a certificate of an
officer of BB&T whose responsibility it is to advise BB&T with respect to such
matters, (v) no consent, approval, authorization or order of any court or
governmental authority is required for the consummation by BB&T or any BB&T Fund
of the transactions contemplated herein, except such as have been obtained under
the 1933 Act, the 1934 Act and the 1940 Act and such as may be required under
state securities or blue sky laws and the H-S-R Act and it being understood that
such opinion shall not be deemed to apply to Arbor's compliance obligations
under the 1933 Act, 1934 Act, 1940 Act, state securities or blue sky laws and
the H-S-R Act; and (vi) the Registration Statement has become effective under
the 1933 Act, and to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or
contemplated under the 1933 Act.
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(g) Arbor shall have received an opinion of Ropes & Xxxx addressed to
Arbor and each OVB Fund in a form reasonably satisfactory to Arbor and dated the
Exchange Date (which opinion would be based upon certain factual representations
and subject to certain qualifications), with respect to the matters specified in
Section 9(g) of this Agreement.
(h) All proceedings taken by BB&T in connection with the transactions
contemplated by this Agreement and all documents incidental thereto reasonably
shall be satisfactory in form and substance to Arbor.
(i) The Registration Statement shall have become effective under the
1933 Act and applicable Blue Sky provisions, and no stop order suspending such
effectiveness shall have been instituted or, to the knowledge of BB&T,
contemplated by the Commission or any state regulatory authority.
(j) BB&T shall have purchased, for the benefit of the OVB Funds and all
present and former Trustees and officers of the OVB Funds (collectively, the
"Insureds") a so-called "run-off" or "extended reporting period" endorsement to
[Insurance Company and Policy Number] (the "Policy") pursuant to which the
Policy will be extended to cover all claims against any of the Insureds first
made prior to September 1, 2004. BB&T shall, on or before the Exchange Date and
from time to time upon request, provide each Trustee and officer of the OVB
Funds a certificate evidencing such coverage.
11. INDEMNIFICATION. (a) Arbor will indemnify and hold harmless BB&T,
its trustees and its officers (for purposes of this subsection, the "Indemnified
Parties") against any and all expenses, losses, claims, damages and liabilities
at any time imposed upon or reasonably incurred by any one or more of the
Indemnified Parties in connection with, arising out of, or resulting from any
claim, action, suit or proceeding in which any one or more of the Indemnified
Parties may be involved or with which any one or more of the Indemnified Parties
may be threatened by reason of any untrue statement or alleged untrue statement
of a material fact relating to Arbor or any OVB Fund contained in the
Registration Statement, the Prospectus or the Proxy Statement or any amendment
or supplement to any of the foregoing, or arising out of or based upon the
omission or alleged omission to state in any of the foregoing a material fact
relating to Arbor or any OVB Fund required to be stated therein or necessary to
make the statements relating to Arbor or any OVB Fund therein not misleading,
including, without limitation, any amounts paid by any one or more of the
Indemnified Parties in a reasonable compromise or settlement of any such claim,
action, suit or proceeding, or threatened claim, action, suit or proceeding made
with the prior consent of Arbor. The Indemnified Parties will notify Arbor in
writing within ten days after the receipt by any one or more of the Indemnified
Parties of any notice of legal process or any suit brought against or claim made
against such Indemnified Party as to any matters covered by this Section 11(a).
Arbor shall be entitled to participate at its own expense in the defense of any
claim, action, suit or proceeding covered by this Section 11(a), or, if it so
elects, to assume at its expense by counsel satisfactory to the Indemnified
Parties the defense of any such claim, action, suit or proceeding, and if Arbor
elects to assume such defense, the Indemnified Parties shall be entitled to
participate in the defense of
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any such claim, action, suit or proceeding at their expense. Arbor's and the OVB
Funds' obligation under this Section 11(a) to indemnify and hold harmless the
Indemnified Parties shall constitute a guarantee of payment so that the OVB
Funds will pay in the first instance any expenses, losses, claims, damages and
liabilities required to be paid by them under this Section 11(a) without the
necessity of the Indemnified Parties' first paying the same.
(b) BB&T will indemnify and hold harmless Arbor, its trustees and its
officers (for purposes of this subparagraph, the "Indemnified Parties") against
any and all expenses, losses, claims, damages and liabilities at any time
imposed upon or reasonably incurred by any one or more of the Indemnified
Parties in connection with, arising out of, or resulting from any claim, action,
suit or proceeding in which any one or more of the Indemnified Parties may be
involved or with which any one or more of the Indemnified Parties may be
threatened by reason of any untrue statement or alleged untrue statement of a
material fact relating to BB&T or any BB&T Fund contained in the Registration
Statement, the Prospectus or the Proxy Statement, or any amendment or supplement
to any of the foregoing, or arising out of or based upon the omission or alleged
omission to state in any of the foregoing a material fact relating to BB&T or
any BB&T Fund required to be stated therein or necessary to make the statements
relating to BB&T or any BB&T Fund therein not misleading, including, without
limitation, any amounts paid by any one or more of the Indemnified Parties in a
reasonable compromise or settlement of any such claim, action, suit or
proceeding, or threatened claim, action, suit or proceeding made with the prior
consent of BB&T. The Indemnified Parties will notify BB&T in writing within ten
days after the receipt by any one or more of the Indemnified Parties of any
notice of legal process or any suit brought against or claim made against such
Indemnified Party as to any matters covered by this Section 11(b). BB&T shall be
entitled to participate at its own expense in the defense of any claim, action,
suit or proceeding covered by this Section 11(b), or, if it so elects, to assume
at its expense by counsel satisfactory to the Indemnified Parties the defense of
any such claim, action, suit or proceeding, and, if BB&T elects to assume such
defense, the Indemnified Parties shall be entitled to participate in the defense
of any such claim, action, suit or proceeding at their own expense. The BB&T
Funds' obligation under this Section 11(b) to indemnify and hold harmless the
Indemnified Parties shall constitute a guarantee of payment so that the BB&T
Funds will pay in the first instance any expenses, losses, claims, damages and
liabilities required to be paid by them under this Section 11(b) without the
necessity of the Indemnified Parties' first paying the same.
12. NO BROKER, ETC. Each of BB&T and Arbor represents that there is no
person who has dealt with it who by reason of such dealings is entitled to any
broker's or finder's or other similar fee or commission arising out of the
transactions contemplated by this Agreement.
13. TERMINATION. BB&T and Arbor may, by mutual consent of their
respective trustees, terminate this Agreement, and BB&T or Arbor, after
consultation with counsel and by consent of their respective trustees and
trustees or an officer authorized by such trustees or trustees, may waive any
condition to their respective obligations hereunder. If the transactions
contemplated by this Agreement have not been substantially completed by December
31, 2001,
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this Agreement shall automatically terminate on that date unless a later date is
agreed to by BB&T and Arbor.
Notwithstanding any other provision in this Agreement, in the event
shareholder approval of this Agreement and the transactions contemplated by this
Agreement is obtained with respect to only one or more OVB Funds but not all of
the OVB Funds, BB&T and Arbor agree to consummate those transactions with
respect to those OVB Funds that have approved this Agreement and those
transactions.
14. COVENANTS, ETC. DEEMED MATERIAL. All covenants, agreements,
representations and warranties made under this Agreement and any certificates
delivered pursuant to this Agreement shall be deemed to have been material and
relied upon by each of the parties, notwithstanding any investigation made by
them or on their behalf.
15. SOLE AGREEMENT; AMENDMENTS. This Agreement supersedes all previous
correspondence and oral communications between the parties regarding the subject
matter hereof, constitutes the only understanding with respect to such subject
matter, may not be changed except by a letter of agreement signed by each party
hereto, and shall be construed in accordance with and governed by the laws of
The Commonwealth of Massachusetts.
16. BB&T AGREEMENT AND DECLARATION OF TRUST BB&T is a business trust
organized under Massachusetts law and under a Declaration of Trust, to which
reference is hereby made and a copy of which is on file at the office of the
Secretary of The Commonwealth of Massachusetts and elsewhere as required by law,
and to any and all amendments thereto so filed or hereafter filed. The
obligations of "BB&T Funds" entered into in the name or on behalf thereof by any
of the Trustees, officers, employees or agents are made not individually, but in
such capacities, and are not binding upon any of the Trustees, officers,
employees, agents or shareholders of BB&T personally, but bind only the assets
of BB&T and all persons dealing with any series or funds of BB&T, such as the
BB&T Funds, must look solely to the assets of BB&T belonging to such series or
funds for the enforcement of any claims against BB&T.
17. ARBOR AGREEMENT AND DECLARATION OF TRUST The Arbor Fund is a
business trust organized under Massachusetts law and under a Declaration of
Trust, to which reference is hereby made and a copy of which is on file at the
office of the Secretary of The Commonwealth of Massachusetts and elsewhere as
required by law, and to any and all amendments thereto so filed or hereafter
filed. The obligations of "OVB Funds" entered into in the name or on behalf
thereof by any of the Trustees, officers, employees or agents are made not
individually, but in such capacities, and are not binding upon any of the
Trustees, officers, employees, agents or shareholders of Arbor personally, but
bind only the assets of Arbor and all persons dealing with any series or funds
of Arbor, such as the OVB Funds, must look solely to the assets of Arbor
belonging to such series or funds for the enforcement of any claims against
Arbor.
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This Agreement may be executed in any number of counter-parts, each of
which, when executed and delivered, shall be deemed to be an original.
THE ARBOR FUNDS
On Behalf of its OVB Family of Funds
By:___________________________
BB&T FUNDS
On Behalf of its BB&T Funds
By:___________________________
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