0000891554-01-505055.txt : 20011009
0000891554-01-505055.hdr.sgml : 20011009
ACCESSION NUMBER: 0000891554-01-505055
CONFORMED SUBMISSION TYPE: 485BPOS
PUBLIC DOCUMENT COUNT: 3
FILED AS OF DATE: 20010925
EFFECTIVENESS DATE: 20010925
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: TIP FUNDS
CENTRAL INDEX KEY: 0001006783
STANDARD INDUSTRIAL CLASSIFICATION: []
STATE OF INCORPORATION: MA
FISCAL YEAR END: 0930
FILING VALUES:
FORM TYPE: 485BPOS
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-64502
FILM NUMBER: 1744515
BUSINESS ADDRESS:
STREET 1: CT CORP
STREET 2: 2 OLIVER STREET
CITY: BOSTON
STATE: MA
ZIP: 02109
MAIL ADDRESS:
STREET 1: 530 E SWEDESFORD ROAD
CITY: WAYNE
STATE: PA
ZIP: 19087-1693
485BPOS
1
d26807_485bpos.txt
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 25, 2001
File No. 333-64502
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-14
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933 /X/
POST-EFFECTIVE AMENDMENT NO. 1
TIP FUNDS
(Exact Name of Registrant as Specified in Charter)
c/o The CT Corporation System
2 Oliver Street
Boston, Massachusetts 02109
(Address of Principal Executive Offices, Zip Code)
Registrant's Telephone Number, including Area Code (610) 251-0268
(Name and Address of Agent for Service)
JOHN H. GRADY, JR.
TURNER INVESTMENT PARTNERS, INC.
1235 WESTLAKES DR., SUITE 350
BERWYN, PENNSYLVANIA 19312-2414
Copies to:
JAMES W. JENNINGS, ESQUIRE W. JOHN MCGUIRE, ESQUIRE
MORGAN, LEWIS & BOCKIUS LLP MORGAN, LEWIS & BOCKIUS LLP
1701 MARKET STREET 1800 M STREET NW
PHILADELPHIA, PENNSYLVANIA 19103 WASHINGTON, DC 20036
It is proposed that this filing will become effective immediately upon filing,
pursuant to paragraph (b) of Rule 485.
No filing fee is required because an indefinite number of shares have previously
been registered pursuant to Rule 24f-2 under the Investment Company Act of 1940.
This Post-Effective Amendment No. 1 to the Registrant's Registration Statement
on Form N-14 (File No. 333-64502) is being filed solely for the purpose of
filing Exhibit 4, the Plan of Reorganization, and Exhibit 12, the Opinion and
Consent of Morgan, Lewis & Bockius LLP as to tax matters and consequences. The
Cross-Reference sheet, the Prospectus/Proxy Statement and the Statement of
Additional Information along with its required attachments are herein
incorporated by reference to the Registrant's Registration Statement on Form
N-14 as filed on July 3, 2001 (Accession No. 0001135428-01-500090).
TIP FUNDS
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FORM N-14
PART C
OTHER INFORMATION
Item 15. INDEMNIFICATION.
Article VIII of the Amended and Restated Agreement and Declaration of Trust
filed as Exhibit 1 to the Registration Statement is incorporated by reference.
Insofar as indemnification for liability arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the Declaration of Trust or otherwise, the Registrant is
aware that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Act and, therefore,
is unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by trustees, directors, officers or controlling persons of the Registrant
in connection with the successful defense of any act, suit or proceeding) is
asserted by such trustees, directors, officers or controlling persons in
connection with the shares being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issues.
Item 16. Exhibits
(1)(a) Agreement and Declaration of Trust of the Registrant, dated
January 26, 1996 is incorporated herein by reference to Exhibit 1
of the Registrant's Registration Statement on Form N-1A as filed
on February 1, 1996.
(1)(b) Certificate of Amendment of Agreement and Declaration of Trust
dated March 28, 1997, is incorporated herein by reference to
Exhibit 1(a) of Post-Effective Amendment No. 5 to the
Registrant's Registration Statement on Form N-1A as filed on
April 10, 1997.
(2) By-Laws are incorporated herein by reference to Exhibit 2 of the
Registrant's Registration Statement on Form N-1A as filed on
February 1, 1996.
(3) Inapplicable.
(4) Form of Plan of Reorganization dated September 13, 2001, is filed
herewith.
(5) Inapplicable.
(6)(a) Investment Advisory Agreement between the Registrant and Turner
Investment Partners, Inc., is incorporated herein by reference to
Exhibit 5(a) of Post-Effective Amendment No. 4 to the
Registrant's Registration Statement on Form N-1A as filed on
January 28, 1997.
(6)(b) Investment Advisory Agreement between the Registrant and Clover
Capital Management, Inc., is incorporated herein by reference to
Exhibit 5(b) of Post-Effective Amendment No. 10 to the
Registrant's Registration Statement on Form N-1A as filed on
October 15, 1997.
(6)(c) Investment Advisory Agreement between the Registrant and Penn
Capital Management Company, Inc., is incorporated herein by
reference to Exhibit d(3) of Post-Effective Amendment No. 12 to
the Registrant's Registration Statement on Form N-1A as filed on
November 17, 1998.
(6)(d) Investment Advisory Agreement between Registrant and Turner
Investment Partners, Inc., is incorporated herein by reference to
Exhibit d(4) of Post-Effective Amendment No. 12 to the
Registrant's Registration Statement on Form N-1A as filed on
November 17, 1998.
(6)(e) Investment Sub-Advisory Agreement between Turner Investment
Partners, Inc., and Clover Capital Management, Inc., is
incorporated herein by reference to Exhibit d(5) of
Post-Effective Amendment No. 12 to the Registrant's Registration
Statement on Form N-1A as filed on November 17, 1998.
(6)(f) Investment Sub-Advisory Agreement between Turner Investment
Partners, Inc. and Penn Capital Management, Inc., is incorporated
herein by reference to Exhibit d(6) of Post-Effective Amendment
No. 12 to the Registrant's
Registration Statement on Form N-1A as filed on November 17,
1998.
(6)(g) Investment Sub-Advisory Agreement between Turner Investment
Partners, Inc. and Chartwell Investment Partners, is incorporated
herein by reference to Exhibit d(7) of Post-Effective Amendment
No. 14 to the Registrant's Registration Statement on Form N-1A as
filed on March 31, 1999.
(6)(h) Amended Schedule to the Investment Advisory Agreement between the
Registrant and Turner Investment Partners, is incorporated herein
by reference to exhibit d(8) of Post-Effective Amendment No. 14
to the Registrant's Registration Statement on Form N-1A as filed
on March 31, 1999.
(7)(a) Distribution Agreement between the Registrant and SEI Investments
Distribution Co. (formerly, SEI Financial Services Company), is
incorporated herein by reference to Exhibit 6(a) of
Post-Effective Amendment No. 4 to the Registrant's Registration
Statement on Form N-1A as filed on January 28, 1997.
(7)(b) Distribution Agreement between the Registrant and CCM Securities
Inc., is incorporated herein by reference to Exhibit 6(b) of the
Registrant's Registration Statement on Form N-1A as filed on
January 23, 1998.
(8) Inapplicable.
(9) Custodian Agreement between the Registrant and CoreStates Bank,
N.A., is incorporated herein by reference to Exhibit 8(a) of
Post-Effective Amendment No. 4 to the Registrant's Registration
Statement on Form N-1A as filed on January 28, 1997.
(10) Inapplicable.
(11) Opinion and Consent of Morgan, Lewis & Bockius LLP that shares
will be validly issued, fully paid and non-assessable is
incorporated herein by reference to the Registrant's Registration
Statement on Form N-14 as filed July 3, 2001.
(12) Opinion and Consent of Morgan, Lewis & Bockius LLP as to tax
matters and consequences is filed herewith.
(13)(a) Administration Agreement between the Registrant and SEI
Investments Management Corporation (formerly, SEI Financial
Management Corporation), is incorporated herein by reference to
Exhibit 9(a) of Post-Effective Amendment No. 4 to the
Registrant's Registration Statement on Form N-1A as filed on
January 28, 1997.
(13)(b) Administration Agreement between the Registrant and SEI
Investments Management Corporation (formerly, SEI Financial
Management Corporation), is incorporated herein by reference to
Exhibit 9(a) of Post-Effective Amendment No. 4 to the
Registrant's Registration Statement on Form N-1A as filed on
January 28, 1997.
(13)(c) Transfer Agency Agreement between the Registrant and DST Systems,
Inc. is incorporated herein by reference to Exhibit 9(b) of the
Registrants Registration Statement on Form N-1A as filed on
January 23, 1998.
(13)(d) Amended Schedule to the Administration Agreement between the
Registrant and SEI Investment Management Corporation (formerly
SEI Financial Management Corporation), is incorporated herein by
reference to Exhibit h(3) of Post-Effective Amendment No. 14 to
the Registrant's Registration Statement on Form N-1A as filed on
March 31, 1999.
(14) Consent of Independent Auditors, Ernst & Young, is incorporated
by reference to the Registrant's Registration Statement on Form
N-14 as filed on July 3, 2001.
(15) Inapplicable.
(16) Inapplicable.
(17)(a) Prospectus for TIP Funds Turner B2B E-Commerce Fund dated January
31, 2001 as revised May 1, 2001 and July 3, 2001 is incorporated
herein by reference to the TIP Funds 497(c) filed on June 1, 2001
[SEC Accession Number 0001135428-01-500054]
(17)(b) Statement of Additional Information for TIP Funds Turner B2B
E-Commerce Fund dated January 31, 2001 as revised
May 1, 2001 is incorporated herein by reference to the TIP
Funds 497(c) filed on June 1, 2001 [SEC Accession Number
0001135428-01-500054].
(17)(c) Audited Financial Statements dated September 30, 2000 for the TIP
Funds Turner B2B E-Commerce Fund are incorporated herein by
reference to Form N-30D filed on December 5, 2000 [SEC Accession
Number 0001082416-00-000161].
(17)(d) Semi-Annual Unaudited Financial Statements dated March 31, 2001
for the TIP Funds Turner B2B E-Commerce Fund are incorporated
herein by reference to the Form N-30D filed on June 1, 2001 [SEC
Accession Number 0001135428-01-500053].
Item 17. UNDERTAKINGS.
The undersigned registrant agrees that prior to any public reoffering of
the securities registered through the use of a prospectus which is a part of
this registration statement by any person or party who is deemed to be an
underwriter within the meaning of Rule 145(c) of the Securities Act, the
reoffering prospectus will contain the information called for by the applicable
registration form for reofferings by persons who may be deemed underwriters, in
addition to the information called for by the other items of the applicable
form.
The undersigned registrant agrees that every prospectus that is filed under
paragraph (1) above will be filed as a part of an amendment to the registration
statement and will not be used until the amendment is effective, and that, in
determining any liability under the 1933 Act, each post-effective amendment
shall be deemed to be a new registration statement for the securities offered
therein, and the offering of the securities at that time shall be deemed to be
the initial bona fide offering of them.
The Registrant undertakes to file, by post-effective amendment, the opinion
of counsel as to certain tax matters, within a reasonable time after execution
of such opinion.
SIGNATURES
As required by the Securities Act of 1933, the Registrant certifies that it
meets all the requirements for effectiveness of this Registration Statement
pursuant to Rule 485(b) under the Securities Act of 1933 and has duly caused
this Post-Effective Amendment No. 1 to be signed on behalf of the Registrant in
the city of Oaks, Commonwealth of Pennsylvania on the 25th day of September,
2001.
TIP FUNDS
Registrant
By: /S/ STEPHEN J. KNEELEY
--------------------------
Stephen J. Kneeley
President
Pursuant to the requirements of the Securities Act of 1933, this Amendment
has been signed below by the following persons in the capacity on the dates
indicated.
* Trustee September 25, 2001
-----------------------------
Robert E. Turner
* Trustee September 25, 2001
-----------------------------
Janet F. Sansone
* Trustee September 25, 2001
-----------------------------
Alfred C. Salvato
* Trustee September 25, 2001
-----------------------------
John T. Wholihan
/S/ STEPHEN J. KNEELEY President and Chief September 25, 2001
----------------------------- Executive Officer
Stephen J. Kneeley
/S/ PETER GOLDEN Controller and Chief September 25, 2001
----------------------------- Financial Officer
Peter Golden
By: /S/ STEPHEN J. KNEELEY September 25, 2001
------------------------
*Stephen J. Kneeley
Attorney-in-Fact
Exhibit Index
(1)(a) Agreement and Declaration of Trust of the Registrant, dated
January 26, 1996 is incorporated herein by reference to Exhibit 1
of the Registrant's Registration Statement on Form N-1A as filed
on February 1, 1996.
(1)(b) Certificate of Amendment of Agreement and Declaration of Trust
dated March 28, 1997, is incorporated herein by reference to
Exhibit 1(a) of Post-Effective Amendment No. 5 to the
Registrant's Registration Statement on Form N-1A as filed on
April 10, 1997.
(2) By-Laws are incorporated herein by reference to Exhibit 2 of the
Registrant's Registration Statement on Form N-1A as filed on
February 1, 1996.
(3) Inapplicable.
(4) Plan of Reorganization dated September 13, 2001, is filed
herewith.
(5) Inapplicable.
(6)(a) Investment Advisory Agreement between the Registrant and Turner
Investment Partners, Inc., is incorporated herein by reference to
Exhibit 5(a) of Post-Effective Amendment No. 4 to the
Registrant's Registration Statement on Form N-1A as filed on
January 28, 1997.
(6)(b) Investment Advisory Agreement between the Registrant and Clover
Capital Management, Inc., is incorporated herein by reference to
Exhibit 5(b) of Post-Effective Amendment No. 10 to the
Registrant's Registration Statement on Form N-1A as filed on
October 15, 1997.
(6)(c) Investment Advisory Agreement between the Registrant and Penn
Capital Management Company, Inc., is incorporated herein by
reference to Exhibit d(3) of Post-Effective Amendment No. 12 to
the Registrant's Registration Statement on Form N-1A as filed on
November 17, 1998.
(6)(d) Investment Advisory Agreement between Registrant and Turner
Investment Partners, Inc., is incorporated herein by
reference to Exhibit d(4) of Post-Effective Amendment No. 12 to
the Registrant's Registration Statement on Form N-1A as filed on
November 17, 1998.
(6)(e) Investment Sub-Advisory Agreement between Turner Investment
Partners, Inc., and Clover Capital Management, Inc., is
incorporated herein by reference to Exhibit d(5) of
Post-Effective Amendment No. 12 to the Registrant's Registration
Statement on Form N-1A as filed on November 17, 1998.
(6)(f) Investment Sub-Advisory Agreement between Turner Investment
Partners, Inc. and Penn Capital Management, Inc., is incorporated
herein by reference to Exhibit d(6) of Post-Effective Amendment
No. 12 to the Registrant's Registration Statement on Form N-1A as
filed on November 17, 1998.
(6)(g) Investment Sub-Advisory Agreement between Turner Investment
Partners, Inc. and Chartwell Investment Partners, is incorporated
herein by reference to Exhibit d(7) of Post-Effective Amendment
No. 14 to the Registrant's Registration Statement on Form N-1A as
filed on March 31, 1999.
(6)(h) Amended Schedule to the Investment Advisory Agreement between the
Registrant and Turner Investment Partners, is incorporated herein
by reference to exhibit d(8) of Post-Effective Amendment No. 14
to the Registrant's Registration Statement on Form N-1A as filed
on March 31, 1999.
(7)(a) Distribution Agreement between the Registrant and SEI Investments
Distribution Co. (formerly, SEI Financial Services Company), is
incorporated herein by reference to Exhibit 6(a) of
Post-Effective Amendment No. 4 to the Registrant's Registration
Statement on Form N-1A as filed on January 28, 1997.
(7)(b) Distribution Agreement between the Registrant and CCM Securities
Inc., is incorporated herein by reference to Exhibit 6(b) of the
Registrant's Registration Statement on Form N-1A as filed on
January 23, 1998.
(8) Inapplicable.
(9) Custodian Agreement between the Registrant and CoreStates Bank,
N.A., is incorporated herein by reference to Exhibit 8(a) of
Post-Effective Amendment No. 4 to the Registrant's Registration
Statement on Form N-1A as filed on January 28, 1997.
(10) Inapplicable.
(11) Opinion and Consent of Morgan, Lewis & Bockius LLP that shares
will be validly issued, fully paid and non-assessable is
incorporated herein by reference to Exhibit 11 of the
Registrant's Registration Statement on Form N-14 as filed on July
3, 2001.
(12) Opinion and Consent of Morgan, Lewis & Bockius LLP as to tax
matters and consequences is filed herewith.
(13)(a) Administration Agreement between the Registrant and SEI
Investments Management Corporation (formerly, SEI Financial
Management Corporation), is incorporated herein by reference to
Exhibit 9(a) of Post-Effective Amendment No. 4 to the
Registrant's Registration Statement on Form N-1A as filed on
January 28, 1997.
(13)(b) Administration Agreement between the Registrant and SEI
Investments Management Corporation (formerly, SEI Financial
Management Corporation), is incorporated herein by reference to
Exhibit 9(a) of Post-Effective Amendment No. 4 to the
Registrant's Registration Statement on Form N-1A as filed on
January 28, 1997.
(13)(c) Transfer Agency Agreement between the Registrant and DST Systems,
Inc. is incorporated herein by reference to Exhibit 9(b) of the
Registrants Registration Statement on Form N-1A as filed on
January 23, 1998.
(13)(d) Amended Schedule to the Administration Agreement between the
Registrant and SEI Investment Management Corporation (formerly
SEI Financial Management Corporation), is incorporated herein by
reference to Exhibit h(3) of Post-Effective Amendment No. 14 to
the Registrant's
Registration Statement on Form N-1A as filed on March 31, 1999.
(14) Consent of Independent Auditors, Ernst & Young, is incorporated
herein by reference to Exhibit 14 of the Registrant's
Registration Statement on Form N-14 as filed on July 3, 2001.
(15) Inapplicable.
(16) Inapplicable.
(17)(a) Prospectus for TIP Funds Turner B2B E-Commerce Fund dated January
31, 2001 as revised May 1, 2001 and July 3, 2001 is incorporated
herein by reference to the TIP Funds 497(c) filed on June 1, 2001
[SEC Accession Number 0001135428-01-500054]
(17)(b) Statement of Additional Information for TIP Funds Turner B2B
E-Commerce Fund dated January 31, 2001 as revised and July 3,
2001 May 1, 2001 is incorporated herein by reference to the TIP
Funds 497(c) filed on June 1, 2001 [SEC Accession Number
0001135428-01-500054].
(17)(c) Audited Financial Statements dated September 30, 2000 for the TIP
Funds Turner B2B E-Commerce Fund are incorporated herein by
reference to Form N-30D filed on December 5, 2000 [SEC Accession
Number 0001082416-00-000161].
(17)(d) Semi-Annual Unaudited Financial Statements dated March 31, 2001
for the TIP Funds Turner B2B E-Commerce Fund are incorporated
herein by reference to the Form N-30D filed on June 1, 2001 [SEC
Accession Number 0001135428-01-500053].
EX-4
4
d26807_ex4.txt
Exhibit (4)
PLAN OF REORGANIZATION
THIS PLAN OF REORGANIZATION is dated as of September 13, 2001 ("Plan"), and
has been adopted by the Board of Trustees of the TIP Funds, a Massachusetts
business trust ("Trust") to provide for the reorganization of its Turner
Wireless & Communications Fund ("Selling Fund") into its Turner B2B E-Commerce
Fund ("Acquiring Fund"). The Selling Fund and the Acquiring Fund are sometimes
referred to collectively, as the "Funds" and individually, as a "Fund."
PRELIMINARY STATEMENTS
1. The Selling Fund and the Acquiring Fund are each series of the Trust,
which is an open-end management investment company registered under the
Investment Company Act of 1940 ("1940 Act").
2. The Board of Trustees of the Trust has determined that the
Reorganization (as defined below) is in the best interests of each Fund and that
the interests of the existing shareholders of each Fund would not be diluted as
a result of the Reorganization.
3. This Plan is intended to be and is adopted as a plan of reorganization
and liquidation within the meaning of Section 368(a)(1) of the Internal Revenue
Code of 1986, as amended ("Code").
PROVISIONS
1. PLAN OF REORGANIZATION. At the Effective Time (as that term is defined
in Section 5 herein), the Selling Fund will assign, deliver and otherwise
transfer all of its assets and good and marketable title to the assets, free and
clear of all liens, encumbrances and adverse claims except as provided in this
Plan, and assign all liabilities to the Acquiring Fund. The Acquiring Fund shall
acquire all these assets, and shall assume all these liabilities of the Selling
Fund, in exchange for the issuance of shares (both full and fractional) of the
Acquiring Fund to the shareholders of the Selling Fund, equivalent in value to
the shares of the Selling Fund outstanding immediately prior to the Effective
Time. These transactions are collectively referred to as the "Reorganization."
The shares of the Acquiring Fund that are issued in exchange for the assets of
the Selling Fund are referred to as the "Acquiring Fund Shares," and the shares
of the Selling Fund that are held by the holders of such shares at the Effective
Time are referred to as the "Selling Fund Shares." The assets and stated
liabilities of the Selling Fund shall be exclusively assigned to and assumed by
the Acquiring Fund. All debts, liabilities, obligations and duties of the
Selling 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.
2. TRANSFER OF ASSETS. The assets of the Selling Fund to be acquired by the
Acquiring Fund shall include, without limitation, all cash, cash equivalents,
securities, receivables (including interest and dividends receivable), goodwill
and intangible property, and deferred or prepaid expenses 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 Selling Fund and other property owned by the Selling Fund at the
Effective Time.
3. LIQUIDATION OF THE SELLING FUND. At the Effective Time, the Selling Fund
will liquidate. Each Selling Fund shareholder shall also have the right to
receive any dividends or other distributions that were declared prior to the
Effective Time, but unpaid at that time, with respect to the Selling Fund Shares
that are held by such Selling Fund shareholders at the Effective Time.
Contemporaneous with the liquidation of the Selling Fund, each shareholder of
the Selling Fund will be issued a number of Acquiring Fund Shares equal in value
to the Selling Fund Shares held by that shareholder. This liquidation 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 record of the Selling Fund and
representing the respective number of Acquiring Fund Shares due that
shareholder. As soon as practicable after the Effective Time, the Trust shall
take all steps necessary and proper to effect a complete termination of the
Selling Fund.
4. CONDITIONS OF THE REORGANIZATION. Consummation of this Plan is subject
to the following conditions:
(a) SHARES TO BE ISSUED UPON REORGANIZATION. The Acquiring Fund Shares to
be issued in connection with the Reorganization (i) have been duly authorized
and upon consummation of the Reorganization will be validly issued, fully paid
and non-assessable; and (ii) will be duly registered in conformity with
applicable federal and state securities laws, and no shareholder of the
Acquiring Fund shall have any option, warrant, or preemptive right of
subscription or purchase with respect to the Acquiring Fund's Shares.
(b) MARKETABLE TITLE TO ASSETS. The Selling 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 these assets, the Acquiring
Fund will have good and marketable title to the assets without restriction on
the transfer of the assets free and clear of all liens, encumbrances and adverse
claims.
(c) TAXES. As of the Effective Time, all federal and other tax returns and
reports of each 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 of them, and to the best of the Trust's knowledge, no
such return is currently under audit and no assessment has been asserted with
respect to any of those returns.
(d) OPINION OF COUNSEL. The Trust shall have received an opinion of Morgan,
Lewis & Bockius LLP based upon customary representations and assumptions, in
form reasonably satisfactory to the Trust and dated as of the Effective Time, to
the effect that:
(1) the shares of the Acquiring Fund issued and outstanding at the
Effective Time are duly authorized and validly issued, fully paid and
non-assessable by the Trust;
(2) the Acquiring Fund Shares to be issued to the Selling Fund, as
provided for by this Plan, are duly authorized and upon delivery
pursuant to the terms of this Plan, will be validly issued, fully
paid, and non-assessable by the Trust, and no shareholder of the
Acquiring Fund has any option, warrant or preemptive right to the
Trust's Agreement and Declaration of Trust and otherwise to such
counsel's knowledge;
(3) the Selling Fund Shares issued and outstanding, at the Effective Time
are duly authorized and validly issued, fully paid and non-assessable
by the Selling Fund;
(4) the Acquiring Fund and Selling Fund are each duly organized and
validly existing series of the Trust under the laws of the
Commonwealth of Massachusetts;
(5) the consummation of the transactions contemplated by this Plan will
not, violate any material agreement known to such counsel to which the
Trust, on behalf of either the Acquiring Fund or Selling Fund, is a
party or by which it is bound;
(6) to the knowledge of such counsel no consent, approval, authorization,
or order of any court or governmental authority is required for the
consummation by the Trust of the transactions contemplated by this
Plan, except such as have been obtained under the Securities Act of
1933 ("1933 Act"), state securities laws, the 1940 Act, the rules and
regulations under those statutes and such as may be required under
state securities laws, rules and regulations; and
(7) the Acquiring Fund and the Selling Fund are each registered as a
series of an investment company under the 1940 Act and such
registration with the Securities and Exchange Commission ("SEC") as an
investment company or series thereof under the 1940 Act is in full
force and effect. Such opinion: (a) shall state that while such
counsel has not verified, and are not passing upon and do not assume
responsibility for, the accuracy, completeness, or fairness of any
portion of the Form N-14 Registration Statement relating to the
Reorganization or any amendment thereof or supplement thereto, they
have generally reviewed and discussed certain
information included therein with respect to the Selling Fund with
certain officers of the Trust and that in the course of such review
and discussion no facts came to the attention of such counsel which
caused them to believe that, on the respective effective or clearance
dates of the Form N-14 Registration Statement, and any amendment
thereof or supplement thereto, the Form N-14 Registration Statement or
any amendment thereof or supplement thereto, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; (b) shall state that such counsel does not
express any opinion or belief as to the financial statements, other
financial data, statistical data, or any information relating to the
Selling Fund contained or incorporated by reference in the Form N-14
Registration Statement; and (c) shall state that such opinion is
solely for the benefit of the Trust and its Board of Trustees and
officers.
In giving such opinion, Morgan, Lewis & Bockius, LLP may rely upon
officers' certificates and certificates of public officials.
(e) TAX OPINION. The Trust shall have received on or before the Effective
Time an opinion of Morgan, Lewis & Bockius LLP satisfactory to the Trust, based
upon customary representations and assumptions, substantially to the effect that
the Reorganization, as a tax-free reorganization within the meaning of Section
368(a)(1) of the Code, will have the following federal income tax consequences
for Selling Fund shareholders, the Selling Fund, and the Acquiring Fund:
(1) No gain or loss will be recognized by the Selling Fund upon the
transfer of its assets in exchange solely for Acquiring Fund Shares
and the assumption by the Acquiring Fund of the Selling Fund's stated
liabilities;
(2) No gain or loss will be recognized by the Acquiring Fund on its
receipt of the Selling Fund's assets in exchange for Acquiring Fund
Shares and the assumption by the Acquiring Fund of the Selling Fund's
liabilities;
(3) The basis of the Selling Fund's assets in the Acquiring Fund's hands
will be the same as the basis of those assets in the Selling Fund's
hands immediately before the Reorganization;
(4) The Acquiring Fund's holding period for the assets transferred to the
Acquiring Fund by the Selling Fund will include the holding period of
those assets in the Selling Fund's hands immediately before the
Reorganization;
(5) No gain or loss will be recognized by the Selling Fund on the issuance
of Acquiring Fund Shares to the Selling Fund's shareholders in
exchange for Selling Fund Shares;
(6) No gain or loss will be recognized by the Selling Fund's shareholders
as a result of the Selling Fund's distribution of Acquiring Fund
Shares to the Selling Fund's shareholders in exchange for the Selling
Fund's shareholders' Selling Fund Shares;
(7) The basis of the Acquiring Fund Shares received by the Selling Fund's
shareholders will be the same as the adjusted basis of that Selling
Fund's shareholders' Selling Fund Shares surrendered in exchange
therefor; and
(8) The holding period of the Acquiring Fund Shares received by the
Selling Fund's shareholders will include the Selling Fund's
shareholders' holding period for the Selling Fund's shareholders'
Selling Fund Shares surrendered in exchange for the Acquiring Fund
Shares, provided that the Selling Fund Shares were held as capital
assets on the date of the Reorganization.
(f) SHAREHOLDER MEETING. This Plan and the Reorganization contemplated by
this Plan shall have been adopted by at least a majority of the outstanding
shares of the Selling Fund entitled to vote at an annual or special meeting of
shareholders.
(g) BOARD OF TRUSTEES MEETING. The Board of Trustees of the Trust, at a
meeting duly called for such purpose, shall have authorized the issuance by the
Acquiring Fund of Acquiring Fund Shares at the Effective Time in exchange for
the assets of the Selling Fund pursuant to the terms and provisions of this
Plan.
(h) TAX TREATMENT. The Trust will not take any action or cause any action
to be taken that is inconsistent with the treatment of the Reorganization as a
reorganization within the meaning of Section 368(a) of the Code or results in
the failure of the transaction to qualify as a reorganization with the meaning
of Section 368(a) of the Code. At or prior to the Effective Time, the Trust will
take such action, or cause such action to be taken, as is reasonably necessary
to enable Morgan, Lewis & Bockius LLP to deliver the tax opinion contemplated in
this Plan.
5. EFFECTIVE TIME OF THE REORGANIZATION. The exchange of the Selling Fund's
assets for the corresponding issuance Acquiring Fund Shares shall be effective
at the close of business on September 14, 2001, or at such other time and date
as fixed by the Board of Trustees or any duly authorized officer of the Trust
("Effective Time").
6. TERMINATION. This Plan and the transactions contemplated by this Plan
may be terminated and abandoned by resolution of the Board of Trustees of the
Trust, or at the discretion of any duly authorized officer of the Trust, at any
time prior to the Effective
Time, if circumstances should develop that, in the opinion of the Board of
Trustees or such officer, make proceeding with the Plan inadvisable. In the
event of any such termination, there shall be no liability for damages on the
part of the Acquiring Fund, the Selling Fund or the Trust, or the Trust's Board
of Trustees or officers.
7. AMENDMENT AND WAIVER. This Plan may be amended, modified or supplemented
at any time (to the fullest extent permitted by law) upon authorization by the
Board of Trustees, with or without shareholder approval; PROVIDED, THAT no
amendment may have the effect of changing the provisions for determining the
number or value of Acquiring Fund Shares to be paid to the Selling Fund's
shareholders under this Plan to the detriment of the Selling Fund's shareholders
without further shareholder approval. The Board of Trustees or any duly
authorized officer of the Trust, may waive any condition to the consummation of
this Plan if, in its or such officer's judgment, such waiver will not have a
material adverse effect on the interests of the shareholders of the Acquiring
Fund or the shareholders of the Selling Fund.
8. FEES AND EXPENSES. Each Fund shall be solely liable for its own expenses
incurred in connection with entering into and carrying out the transactions
contemplated by this Plan, whether or not the transactions contemplated hereby
are consummated.
9. GOVERNING LAW. This Plan shall be governed and construed in accordance
with the laws of the Commonwealth of Massachusetts.
EX-12
5
d26807_ex12.txt
1701 Market Street MORGAN, LEWIS
Philadelphia, PA, 19103-2921 & BOCKIUS LLP
215-963-5000 C O U N S E L O R S A T L A W
Fax: 215-963-5299
September 21, 2001
Board of Trustees
TIP Funds
c/o Turner Investment Partners, Inc.
1235 Westlakes Drive, Suite 350
Berwyn, Pennsylvania
Re: Plan of Reorganization, dated as of September 13, 2001 (the "Plan"), of
TIP Funds Inc., a Massachusetts business trust, to provide for the
reorganization of its Turner Wireless & Communications Fund (the
"Target Fund") into its Turner New Enterprise Fund (formerly the B2B
E-Commerce Fund) (the "Acquiring Fund")
Ladies and Gentlemen:
You have requested our opinion as to certain federal income tax
consequences of the reorganization of the Target Fund which will consist of (i)
the transfer of all of the assets of the Target Fund to the Acquiring Fund, in
exchange solely for shares of the Acquiring Fund (collectively, the "Acquiring
Fund Shares"), (ii) the assumption by the Acquiring Fund of all liabilities of
the Target Fund, and (iii) the distribution of the Acquiring Fund Shares to the
shareholders of the Target Fund in complete liquidation of the Target Fund, all
upon the terms and conditions set forth in the Plan (the "Reorganization").
In rendering our opinion, we have reviewed and relied upon (a) the Plan,
(b) the proxy materials provided to shareholders of the Target Fund in
connection with the Special Meeting of Shareholders of the Target Fund held on
September 13, 2001, (c) certain representations concerning the Reorganization
made to us by the Acquiring Fund and the Target Fund in a letter dated September
21, 2001(the "Representation Letter"), (d) all other documents, financial and
other reports and corporate minutes which we deemed relevant or appropriate, and
(e) such statutes, regulations, rulings and decisions as we deemed material to
the rendition of this opinion. All terms used in this letter, unless otherwise
defined, are used as defined in the Plan.
For purposes of this opinion, we have assumed that the Target Fund and the
Acquiring Fund at the Effective Time of the Reorganization each satisfy, and
following the Reorganization, the Acquiring Fund will continue to satisfy, the
requirements of subchapter M of the Internal Revenue Code of 1986, as amended
(the
"Code"), for qualification as a regulated investment company ("RIC").
Under regulations to be prescribed by the Secretary of Treasury under
Section 1276(d) of the Code, certain transfers of market discount bonds will be
excepted from the requirement that accrued market discount be recognized on
disposition of a market discount bond under Section 1276(a) of the Code. Such
regulations are to provide, in part, that accrued market discount will not be
included in income if no gain is recognized under Section 361(a) of the Code
where a bond is transferred in an exchange qualifying as a tax-free
reorganization. As of the date hereof, the Secretary has not issued any
regulations under Section 1276 of the Code.
Based on the foregoing and provided the Reorganization is carried out in
accordance with the laws of the Commonwealth of Massachusetts, the Plan, and the
Representation Letter, it is our opinion that:
1. The Reorganization will constitute a tax-free reorganization within the
meaning of Section 368(a) of the Code, and the Target Fund and the Acquiring
Fund will each be a "party to the reorganization" within the meaning of Section
368(b) of the Code.
2. No gain or loss will be recognized by the Acquiring Fund upon the
receipt of the assets of the Target Fund solely in exchange for Acquiring Fund
Shares and the assumption by the Acquiring Fund of all of the liabilities of the
Target Fund pursuant to Section 1032(a) of the Code.
3. No gain or loss will be recognized by the Target Fund upon the transfer
of all of its assets to the Acquiring Fund solely in exchange for Acquiring Fund
Shares and the assumption by the Acquiring Fund of all of the liabilities of the
Target Fund or upon the distribution of Acquiring Fund Shares to shareholders of
the Target Fund pursuant to Sections 361(a) and (c) and 357(a) of the Code. We
express no opinion as to whether any accrued market discount will be required to
be recognized as ordinary income pursuant to Section 1276 of the Code.
4. No gain or loss will be recognized by the shareholders of the Target
Fund upon the exchange of their shares of the Target Fund for Acquiring Fund
Shares (including fractional shares to which they may be entitled) pursuant to
Section 354(a) of the Code.
5. The aggregate tax basis of Acquiring Fund Shares received by each
shareholder of the Target Fund (including fractional shares to which they may be
entitled) will be the same as the aggregate tax basis of the Target Fund Shares
exchanged therefor pursuant to Section 358(a)(1) of the Code.
6. The holding period of the Acquiring Fund Shares received by the
shareholders of the Target Fund (including fractional shares to which they may
be entitled) will include the holding period of the Target Fund Shares
surrendered in exchange therefor, provided that the Target Fund Shares were held
as a capital asset at the Effective Time of the Reorganization, pursuant to
Section 1223(1) of the Code.
7. The tax basis of the assets of the Target Fund received by the Acquiring
Fund will be the same as the tax basis of such assets to the Target Fund
immediately prior to the exchange pursuant to Section 362(b) of the Code.
8. The holding period of the assets of the Target Fund received by the
Acquiring Fund will include the period during which such assets were held by the
Target Fund pursuant to Section 1223(2) of the Code.
9. The Acquiring Fund will succeed to and take into account as of the date
of the transfer (as defined in Section 1.381(b)-1(b) of the Income Tax
Regulations) the items of the Target Fund described in Section 381(c) of the
Code, subject to the conditions and limitations specified in Sections 381(b) and
(c), 382, 383 and 384 of the Code.
This opinion letter expresses our views only as to U.S. federal income tax
laws in effect as of the date hereof. It represents our best legal judgment as
to the matters addressed herein, but is not binding on the Internal Revenue
Service or the courts. Accordingly, no assurance can be given that the opinions
and analysis expressed herein, if contested, would be sustained by a court. Our
opinion is based upon the Code, the applicable Treasury Regulations promulgated
thereunder, the present position of the Internal Revenue Service as set forth in
published revenue rulings and revenue procedures, present administrative
positions of the Internal Revenue Service, and existing judicial decisions, all
of which are subject to change either prospectively or retroactively. We do not
undertake to make any continuing analysis of the facts or relevant law following
the date of this letter.
Our opinion is conditioned upon the performance by the Acquiring Fund and
the Target Fund of their undertakings in the Plan and the Representation Letter.
This opinion is being rendered to the Acquiring Fund and the Target Fund
and may be relied upon only by the Funds and their Board of Trustees and
shareholders.
Very truly yours,
/s/ Morgan, Lewis & Bockius LLP