Exhibit No. EX-99.4(b)
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (this "Agreement") is dated as of
March 14, 2003, and is among The Xxxxxxxxxx Funds II, a Delaware statutory trust
("Xxxxxxxxxx II"), Gartmore Mutual Funds, an Ohio business trust ("GMF"),
Gartmore Global Investments, Inc., a Delaware corporation ("GGI") (with respect
to Sections 5, 11 and 12 and subsection 1(c) only), and Commerzbank AG, a
banking corporation under the laws of the Federal Republic of Germany
("Commerzbank") (with respect to Section 5 only).
Background Information
X. Xxxxxxxxxx XX is registered under the Investment Company Act of 1940, as
amended (the "1940 Act"), as an open-end investment company of the management
type and has issued and outstanding Class R, Class A, Class B, and Class C
shares of beneficial interest, $0.01 par value, of the Xxxxxxxxxx Partners
Long-Short Equity Plus Fund, formerly the Xxxxxxxxxx Global Long-Short Fund (the
"Acquired Fund").
B. GMF is registered under the 1940 Act as an open-end investment company
of the management type, and has authorized the issuance of Class A, B, C,
Institutional Services Class and Institutional Class shares of beneficial
interest, without par value, of the Gartmore Long-Short Equity Plus Fund (the
"Acquiring Fund").
C. The Acquiring Fund currently is a shell series, without assets or
liabilities, created for the purpose of acquiring the assets and certain
liabilities of the Acquired Fund.
D. The Acquired Fund plans to transfer all of its assets, and to assign all
of its Stated Liabilities (as defined in Section 1(c)), to the Acquiring Fund,
in exchange solely for Class A, B and C shares of beneficial interest, without
par value, of the Acquiring Fund ("Acquiring Fund Shares"), which are voting
securities, followed by the distribution of the Acquiring Fund Shares by the
Acquired Fund to its shareholders in connection with the dissolution of the
Acquired Fund, all upon the terms and provisions of this Agreement (together,
the "Reorganization").
E. The Acquired Fund has elected, and the Acquiring Fund intends to elect,
to be a regulated investment company as described in Section 851 of the United
States Internal Revenue Code of 1986, as amended (the "Code").
F. This Agreement is intended to be and is adopted as a plan of
reorganization within the meaning of Section 368(a)(1) of the Code for the
Acquired Fund and the Acquiring Fund.
G. The Board of Trustees of Xxxxxxxxxx II has determined that the
Reorganization is in the best interests of Xxxxxxxxxx II and the Acquired Fund
and that the interests of the Acquired Fund's shareholders will not be diluted
as a result thereof.
H. The Board of Trustees of GMF has determined that the Reorganization is
in the best interests of GMF and the Acquiring Fund and that the interests of
the Acquiring Fund's shareholders will not be diluted as a result thereof.
Statement of Agreement
In consideration of the mutual promises herein contained, the parties to
this Agreement hereby covenant and agree as follows:
1. Plan of Reorganization
(a) Sale of Assets. Subject to the prior approval of shareholders of
the Acquired Fund and to the other terms and conditions contained herein
(including the condition that the Acquired Fund shall distribute to its
shareholders all of its investment company taxable income and net capital
gain as described in Section 8(h) herein), Xxxxxxxxxx II and the Acquired
Fund agree to assign, convey, transfer and deliver to GMF and the Acquiring
Fund, and GMF and the Acquiring Fund agree to acquire from Xxxxxxxxxx II
and the Acquired Fund on the Exchange Date (as defined below), all of the
Investments (as defined below), cash and other assets of the Acquired Fund
(collectively, "Assets"), in exchange for that number of full and
fractional Acquiring Fund Shares having an aggregate net asset value equal
to the value of all Assets of the Acquired Fund transferred to the
Acquiring Fund, as provided in Section 4, less the liabilities of the
Acquired Fund to be assumed by the Acquiring Fund as described below.
(b) Assets Acquired. The Assets to be acquired by the Acquiring Fund
from Xxxxxxxxxx II, on behalf of the Acquired Fund, shall consist of all of
the Acquired Fund's property, including, without limitation, all
Investments (as defined below), cash and dividends or interest receivables
which are owned by the Acquired Fund, and any deferred or prepaid expenses
shown as an asset on the books of the Acquired Fund, as of the Valuation
Time described in Section 4. As used in this Agreement, the term
"Investments" shall mean the Acquired Fund's investments shown on the
statements of assets and liabilities at December 31, 2002 referred to in
Section 2(c) hereof, as supplemented with such changes as Xxxxxxxxxx II, on
behalf of the Acquired Fund, shall make after December 31, 2002 only in the
ordinary course of its business.
(c) Liabilities Assumed. Prior to the Exchange Date, Xxxxxxxxxx II
will discharge or cause to be discharged, or make provision for the payment
of, all of the Acquired Fund's known liabilities, obligations and
unreconciled differences. The Acquiring Fund shall assume (and the Acquired
Fund shall thereupon be relieved of) (i) those liabilities, expenses, costs
and charges of the Acquired Fund reflected in the unaudited statements of
assets and liabilities of the Acquired Fund as of the Valuation Time,
prepared by or on behalf of Xxxxxxxxxx II and the Acquired Fund as of the
Valuation Time (A) in accordance with generally accepted accounting
principles consistently applied from and after December 31, 2002, and (B)
pursuant to an "agreed upon procedures" audit to be conducted by
PricewaterhouseCoopers LLP ("PWC") and paid for by GGI as of the Valuation
Time in accordance with generally accepted accounting principles
consistently applied, such audit to include an independent valuation by PWC
of all Acquired Fund assets; and (ii) normal and reasonable operating
expenses, costs and charges unknown at the Valuation Time, but excluding,
without limitation, liabilities, expenses, costs and charges
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involving or relating to any legal, administrative or other enforcement
proceedings as well as other extraordinary items ((ii) and (ii)
collectively referred to hereafter as the "Stated Liabilities").
(d) Liquidation and Dissolution. Upon consummation of the transactions
described in Sections 1(a), 1(b) and 1(c) above, the Acquired Fund shall
distribute to its shareholders of record as of the Exchange Date the
Acquiring Fund Shares received by it, each Acquired Fund shareholder of
record thereof being entitled to receive that number of Acquiring Fund
Shares equal in aggregate value to the value of the shares of beneficial
interest, $0.01 par value, of the Acquired Fund held by such shareholder on
such date, with shareholders of the Acquired Fund receiving Class A
Acquiring Fund Shares for Class R and Class A shares, Class B Acquiring
Fund Shares for Class B shares, and Class C Acquiring Fund Shares for Class
C shares. Xxxxxxxxxx II shall take such further action as may be required,
necessary or appropriate under Xxxxxxxxxx II's Declaration of Trust,
Delaware law and the Code to effect the complete liquidation and
dissolution of the Acquired Fund. Xxxxxxxxxx II, through its administrator,
will fulfill all of its reporting and filing requirements under the 1940
Act, that arise both before and after the Exchange Date, including without
limitation filing final tax returns and a final Form N-SAR, on behalf of
the Acquired Fund.
2. Representations, Warranties and Agreements of Xxxxxxxxxx II. Xxxxxxxxxx II
represents and warrants to and agrees with GMF and the Acquiring Fund that:
(a) Xxxxxxxxxx II is a statutory trust validly existing and in good
standing under the laws of the State of Delaware and has power to own all
of its properties and assets and to carry out its obligations under this
Agreement. The Acquired Fund is a legally designated, separate series of
Xxxxxxxxxx II.
(b) Xxxxxxxxxx II is registered under the 1940 Act as an open-end
investment company of the management type, and such registration has not
been revoked or rescinded and is in full force and effect. Xxxxxxxxxx II
has elected to qualify and has qualified the Acquired Fund as a regulated
investment company under Part I of Subchapter M of the Code as of and since
the Acquired Fund's first taxable year, and the Acquired Fund is qualified
and intends to continue to qualify as a regulated investment company for
its current taxable year and for its taxable period ending upon its
liquidation.
(c) The statements of assets and liabilities, including the statements
of investments as of June 30, 2002, and the related statements of
operations for the year then ended, and statements of changes in net assets
for each of the two years in the period then ended, for the Acquired Fund,
such statements having been audited by PWC, independent auditors of
Xxxxxxxxxx II, have been furnished to GMF. The unaudited statements of
assets and liabilities, including the statements of investments as of
December 31, 2002, and the related statements of operations and statements
of changes in net assets for the period then ended, for the Acquired Fund,
have been furnished to GMF. Such statements of assets and liabilities
fairly present the financial position of the Acquired Fund as of such dates
and such 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
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accepted accounting principles, and there are no known material liabilities
of the Acquired Fund as of such dates which are not disclosed therein.
(d) The prospectus of the Acquired Fund dated October 31, 2002 and its
related Statement of Additional Information dated October 31, 2002, each as
amended to date and as hereafter may be amended from time to time
(together, the "Xxxxxxxxxx II Prospectus"), in the form filed by or on
behalf of Xxxxxxxxxx II under the Securities Act of 1933, as amended (the
"1933 Act"), with the U.S. Securities and Exchange Commission (the
"Commission") and previously furnished to GMF, did not as of their date, do
not as of the date hereof, and will not as of the Exchange Date, 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
not misleading.
(e) Except as may have been previously disclosed in writing to GMF,
there are no material legal, administrative or other proceedings pending
or, to the knowledge of Xxxxxxxxxx II, threatened against Xxxxxxxxxx II or
the Acquired Fund. Xxxxxxxxxx II knows of no facts that might form the
basis for the institution of such proceedings and it is not a party to or
subject to the provisions of any order, decree, or judgment of any court or
governmental body that materially and adversely affects its business or its
ability to consummate the transactions contemplated by this Agreement.
(f) There are no material contracts outstanding to which Xxxxxxxxxx
II, on behalf of the Acquired Fund, is a party, other than as disclosed in
the Xxxxxxxxxx II Prospectus or to GMF in writing, and there are no such
contracts or commitments (other than this Agreement) which will be
terminated with liability to Xxxxxxxxxx II or the Acquired Fund on or prior
to the Exchange Date.
(g) The Acquired Fund has no known liabilities of a material nature,
contingent or otherwise, other than those shown as belonging to them on the
statements of assets and liabilities at December 31, 2002, and those
incurred since that date in the ordinary course of Xxxxxxxxxx II's business
as an investment company and of a similar nature to and consistent with
those shown on such statements of assets and liabilities at December 31,
2002. The Acquired Fund has not incurred, and will not incur, any liability
of a material nature, contingent or otherwise, other than those incurred in
the ordinary course of Xxxxxxxxxx II's business as an investment company
and of a similar nature to and consistent with those shown on such
statements of assets and liabilities at December 31, 2002, from and after
December 31, 2002, and through the Exchange Date, without the prior express
written consent of GMF.
(h) The Investments include, and as of the Exchange Date will include,
only those securities or investments described in the Xxxxxxxxxx II
Prospectus and that are consistent with, and as of the Exchange Date will
be consistent with, the investment objective, policies and restrictions of
the Acquired Fund in all material respects.
(i) Xxxxxxxxxx II and the Acquired Fund have filed or will file all
federal, state and local tax returns which, to the knowledge of Xxxxxxxxxx
II's officers, are required to be filed by Xxxxxxxxxx II and the Acquired
Fund and have paid or will pay all federal, state
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and local taxes shown to be due on said returns or on any assessments
received by Xxxxxxxxxx II or the Acquired Fund. All tax liabilities of
Xxxxxxxxxx II and the Acquired Fund have been adequately provided for on
their books, and no tax deficiency or liability of Xxxxxxxxxx II or the
Acquired 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 2(l), Xxxxxxxxxx
II and the Acquired Fund will have full right, power and authority to
assign, transfer and deliver the Investments and any other of the Assets to
be transferred to GMF and the Acquiring Fund pursuant to this Agreement. On
the Exchange Date, subject only to the delivery of the Investments and any
such other Assets and the assumption of Stated Liabilities as contemplated
by this Agreement, GMF and the Acquiring Fund will acquire the Investments
and any such other Assets subject to no encumbrances, liens or security
interests in favor of any third party creditor of Xxxxxxxxxx II or the
Acquired Fund and, except as described in Section 2(k), without any
restrictions upon the transfer thereof.
(k) No registration under 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 Xxxxxxxxxx II or GMF, except as previously
disclosed to GMF by Xxxxxxxxxx II prior to the date hereof.
(l) No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by Xxxxxxxxxx II or
the Acquired 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 state laws applicable to
business or statutory trusts.
(m) The registration statement (the "N-14 Registration Statement") to
be filed with the Commission by GMF on Form N-14 relating to the Acquiring
Fund Shares issuable hereunder, and the proxy statement of Xxxxxxxxxx II
included therein (the "Proxy Statement"), on the effective date of the N-14
Registration Statement and insofar as they relate to Xxxxxxxxxx II and the
Acquired Fund, (i) will comply in all material respects with the provisions
of the 1933 Act, the 1934 Act and the 1940 Act and the rules and
regulations thereunder and (ii) will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and at
the time of the shareholders' meeting referred to in Section 6 below and on
the Exchange Date, the prospectus contained in the N-14 Registration
Statement of which the Proxy Statement is a part, as amended or
supplemented by any amendments or supplements filed with the Commission by
GMF (together, the "N-14 Prospectus"), insofar as it relates to Xxxxxxxxxx
II and the Acquired 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 not misleading.
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3. Representations, Warranties and Agreements of GMF. GMF represents and
warrants to and agrees with Xxxxxxxxxx II and the Acquired Fund that:
(a) GMF is a business trust validly existing under the laws of the
State of Ohio and has power to carry on its business as it is now being
conducted and to carry out its obligations under this Agreement. The
Acquiring Fund is a legally designated, separate series of GMF.
(b) GMF is registered under the 1940 Act as an open-end investment
company of the management type, and such registration has not been revoked
or rescinded and is in full force and effect. The Acquiring Fund expects to
qualify as a regulated investment company under Part I of Subchapter M of
the Code.
(c) The Acquiring Fund will have no assets or liabilities as of the
Valuation Time.
(d) The prospectus of the Acquiring Fund is expected to be dated as of
a date in April 2003, and the related Statement of Additional Information
to be dated as of such date in the form to be filed by or on behalf of GMF
with the Commission (together, the "Acquiring Fund Prospectus"), will be
furnished to Xxxxxxxxxx II promptly upon the completion thereof and will
not as of their date or as of the Exchange Date 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 not
misleading.
(e) Except as may have been previously disclosed to Xxxxxxxxxx II,
there are no material legal, administrative or other proceedings pending
or, to the knowledge of GMF, threatened against GMF or the Acquiring Fund.
GMF knows of no facts that might form the basis for the institution of such
proceedings and it is not a party to or subject to the provisions of any
order, decree, or judgment of any court or governmental body that
materially and adversely affects its business or its ability to consummate
the transactions contemplated by this Agreement.
(f) There are no material contracts outstanding to which GMF, on
behalf of the Acquiring Fund, is a party, other than as disclosed in the
Acquiring Fund Prospectus or to Xxxxxxxxxx II in writing.
(g) No consent, approval, authorization or order of any governmental
authority is required for the consummation by GMF or the Acquiring 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 state laws applicable to business trusts.
(h) As of both the Valuation Time and the Exchange Date and otherwise
as described in Section 3(g), GMF and the Acquiring Fund will have full
right, power and authority to acquire the Investments and any other Assets
of the Acquired Fund and to assume the Stated Liabilities to be transferred
to the Acquiring Fund pursuant to this Agreement.
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(i) The N-14 Registration Statement, the N-14 Prospectus and the Proxy
Statement, on the effective date of the N-14 Registration Statement and
insofar as they relate to GMF and the Acquiring Fund: (i) will comply in
all material respects with the provisions of the 1933 Act, the 1934 Act and
the 1940 Act and the rules and regulations thereunder, and (ii) will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; and at the time of the shareholders' meeting
referred to in Section 6 and on the Exchange Date, the N-14 Prospectus and
the Proxy Statement, insofar as they relate to GMF and the Acquiring 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 not misleading; provided, however, that none of the
representations and warranties in this subsection shall apply to statements
in or omissions from the N-14 Registration Statement, the N-14 Prospectus
or the Proxy Statement made in reasonable reliance upon and in conformity
with information furnished by Xxxxxxxxxx II or the Acquired Fund to GMF for
use in the N-14 Registration Statement, the N-14 Prospectus or the Proxy
Statement.
(j) GMF has no plan or intention to issue additional shares of the
Acquiring Fund following the Reorganization except for shares issued in the
ordinary course of GMF's business as an open-end investment company, nor
does GMF have any plan or intention to redeem or otherwise reacquire any of
the Acquiring Fund Shares issued to Acquired Fund shareholders pursuant to
the Reorganization, other than through redemptions arising in the ordinary
course of that business. GMF will actively continue the Acquired Fund's
business in the same manner that the Acquired Fund conducted it immediately
before the Reorganization, and GMF has no plan or intention to sell or
otherwise dispose of a substantial portion of the Investments to be
acquired by the Acquiring Fund in the Reorganization, except for
dispositions made in the ordinary course of its business and dispositions
necessary to maintain the status of the Acquiring Fund as a regulated
investment company under Subchapter M of the Code.
(k) The Acquiring Fund Shares to be issued by GMF have been duly
authorized and, when issued and delivered by GMF to Xxxxxxxxxx II pursuant
to this Agreement and in accordance with the N-14 Registration Statement,
will be legally and validly issued by GMF and will be fully paid and
nonassessable and no shareholder of the Acquiring Fund will have any
preemptive right of subscription or purchase in respect thereof. Other than
this Agreement, there are no outstanding options, warrants or other rights
to subscribe for or purchase the Acquiring Fund Shares.
(l) The issuance of Acquiring Fund Shares pursuant to this Agreement
will be in compliance with all applicable federal and state securities
laws, including the 1933 Act.
4. Exchange Date; Valuation Time. On the Exchange Date (as defined below), GMF
will deliver to Xxxxxxxxxx II a number of corresponding Acquiring Fund
Shares having an aggregate net asset value equal to the value of the Assets
of the Acquired Fund acquired by the Acquiring Fund, less the value of the
Stated Liabilities of the Acquired Fund assumed, determined as hereafter
provided in this Section 4.
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(a) Delivery of the Assets of the Acquired Fund to be transferred,
assumption of the Stated Liabilities of the Acquired Fund to be assumed
hereunder, and the delivery of Acquiring Fund Shares to be issued shall be
made at the offices of GMF, at 9:00 A.M. on June 23, 2003, or at such other
time, date, and location agreed to by Xxxxxxxxxx II and GMF, the date and
time upon which such delivery is to take place being referred to herein as
the "Exchange Date."
(b) The Assets of the Acquired Fund, less the Stated Liabilities to be
assumed hereunder, will be computed as of the Valuation Time, using the
valuation procedures set forth in the Xxxxxxxxxx II Prospectus.
(c) The net asset value of each of the Acquiring Fund Shares will be
equal to the net asset value per share of the corresponding class of shares
of the Acquired Fund, determined to the nearest full cent as of the
Valuation Time, using the valuation procedures set forth in the Acquiring
Fund's prospectus. The Valuation Time shall be 4:00 P.M., Eastern time, on
June 20, 2003, or such earlier or later day and time as may be mutually
agreed upon in writing by the parties hereto (the "Valuation Time"). In the
event that at the Valuation Time either: (i) the New York Stock Exchange
("NYSE") or another primary exchange on which the portfolio securities of
the Acquiring Fund or the Acquired Fund are purchased or sold, shall be
closed to trading or trading on such exchange shall be restricted; or (ii)
trading or the reporting of trading on the NYSE or elsewhere shall be
disrupted so that accurate appraisal of the value of the net assets of the
Acquiring Fund or the Acquired Fund is impracticable, the Valuation Time
shall be postponed until the first business day after the day when trading
is fully resumed and reporting is restored.
(d) The Acquiring Fund shall issue its Acquiring Fund Shares to
Xxxxxxxxxx II on a share deposit receipt registered in the name of
Xxxxxxxxxx II. Xxxxxxxxxx II shall distribute in liquidation the Acquiring
Fund Shares received by it hereunder pro rata to the shareholders of the
Acquired Fund by redelivering such share deposit receipt to GMF's transfer
agent, which will as soon as practicable make such modifications to the
accounts for each former Acquired Fund shareholder as may be necessary and
appropriate. On the Exchange Date, each party shall deliver to the other
such bills of sale, checks, assignments, share certificates, receipts and
other documents, if any, as such other party or its counsel may reasonably
request.
(e) The Acquiring Fund shall assume all Stated Liabilities of the
Acquired Fund, in connection with the acquisition of Assets except that
recourse for assumed Stated Liabilities related to the Acquired Fund shall
be limited to the Acquiring Fund. Other than the Stated Liabilities,
neither GMF nor the Acquiring Fund shall assume any other liabilities of
Xxxxxxxxxx II or the Acquired Fund, whether accrued or contingent in
connection with the acquisition of Assets and subsequent dissolution of the
Acquired Fund or Xxxxxxxxxx II or otherwise.
5. Expenses, Fees, etc.
(a) Except as set forth below, each of Xxxxxxxxxx II and GMF shall be
responsible for its respective fees and expenses of the Reorganization.
Notwithstanding the
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foregoing, GGI, the parent corporation to the investment adviser of the
Acquiring Fund, will be responsible for all of Xxxxxxxxxx II's and GMF's
fees, costs and expenses relating to (i) the Reorganization, including, but
not limited to, the N-14 Registration Statement, all of Xxxxxxxxxx II's
proxy solicitation costs (including the costs of preparing, printing and
mailing proxy materials, the Special Shareholders Meeting, preparing this
Agreement and associated legal fees), consultants retained by the Board of
Trustees of Xxxxxxxxxx to assist the Board in evaluating the terms of the
Reorganization, and any and all such meetings of the Board of Trustees of
Xxxxxxxxxx II as such meetings relate to the Reorganization and the
Acquired Fund, including, but not limited to, special meetings held on
December 16, 2002, January 14, 2003, February 11, 2003, February 19, 2003
and March 5, 2003 (collectively, the "Reorganization Expenses"). and (ii)
the cost of run-off errors and omission insurance for the Trustees and
officers of Xxxxxxxxxx II (limited only to matters related to the Acquired
Fund and in a form reasonably acceptable to Xxxxxxxxxx II and as described
in Section 11 hereto).
(b) Each of Xxxxxxxxxx II, GMF, GGI and Commerzbank agrees to use its
commercially reasonable best efforts to complete the Reorganization. This
agreement notwithstanding:
(i) Should either Xxxxxxxxxx II or GMF, in good faith, choose for
commercially reasonable reasons to abandon the Reorganization prior to its
completion, or if such Reorganization cannot be completed other than for a
reason set forth in (ii), (iii), or (iv) below (the "Abandoned
Reorganization"), then the aggregate Reorganization Expenses shall be paid
equally by each of GGI and Commerzbank.
(ii) Should GMF (or GGI, as the case may be) breach or cause to
be breached a material provision of this Agreement resulting in a failure
to complete the Reorganization, then GGI will bear 100% of the
Reorganization Expenses.
(iii) Should Xxxxxxxxxx II breach or cause to be breached a
material provision of this Agreement resulting in a failure to complete the
Reorganization, then Commerzbank will bear 100% of the Reorganization
Expenses.
(iv) Should the Reorganization not receive the requisite vote of
shareholders to approve the Reorganization, then GGI will bear 100% of the
Reorganization Expenses.
(c) In no event will GGI or GMF be responsible for or pay for any
fees, expenses or costs associated with terminating any contracts to which
Xxxxxxxxxx II or the Acquired Fund is a party.
6. Special Meeting of Shareholders; Dissolution
(a) Xxxxxxxxxx II agrees to call a special meeting of shareholders of
the Acquired Fund as soon as is practicable for the purpose of considering
the transfer of all of the Assets, subject to Stated Liabilities, of the
Acquired Fund to the Acquiring Fund as herein provided, authorizing and
approving this Agreement, and authorizing and approving
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the liquidation and dissolution of the Acquired Fund, and it shall be a
condition to the obligations of each of the parties hereto that the holders
of shares of beneficial interest, $0.01 par value, of the Acquired Fund
shall have approved this Agreement, and the transactions contemplated
herein, including the liquidation and dissolution of the Acquired Fund, in
the manner required by law and Xxxxxxxxxx II's Declaration of Trust at such
a meeting on or before the Valuation Time. Certified copies of the
resolutions evidencing such approval shall be promptly delivered to GMF
after such special meeting.
(b) Xxxxxxxxxx II agrees that the liquidation and dissolution of the
Acquired Fund will be effected in the manner provided in Xxxxxxxxxx II's
Declaration of Trust and in accordance with applicable law, and that it
will not make any distribution of any Acquiring Fund Shares to the
shareholders of the Acquired Fund without first paying or adequately
providing for the payment of all of the Acquired Fund's known debts,
obligations and liabilities.
(c) Each of Xxxxxxxxxx II and GMF will cooperate with the other and
will use its reasonable best efforts to complete and file the N-14
Registration Statement and otherwise to consummate the Reorganization, 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 N-14 Registration Statement,
including the N-14 Prospectus and the Proxy Statement included therein.
7. Conditions of Xxxxxxxxxx II's Obligations. The obligations of Xxxxxxxxxx II
hereunder shall be subject to the following conditions:
(a) This Agreement shall have been authorized and the transactions
contemplated hereby, including the liquidation and dissolution of the
Acquired Fund, shall have been approved by the Board of Trustees of GMF and
the shareholders of the Acquired Fund in the manner required by law.
(b) As of the Valuation Time and as of the Exchange Date, all
representations and warranties of GMF made in this Agreement are true and
correct in all material respects as if made at and as of such dates, GMF
and the Acquiring Fund have complied with all of the agreements and
satisfied all of the conditions on their part to be performed or satisfied
at or prior to each of such dates, and GMF shall have furnished to
Xxxxxxxxxx II a statement, dated the Exchange Date, signed by GMF's
Secretary and Treasurer (or other financial officer) certifying
satisfaction of this condition 7(b) as of such dates.
(c) There shall not be any material litigation or administrative
proceeding pending or overtly threatened with respect to the matters
contemplated by this Agreement.
(d) Xxxxxxxxxx II shall have received an opinion of Xxxxxxxx Ronon
Xxxxxxx & Xxxxx LLP in form reasonably satisfactory to Xxxxxxxxxx II, and
dated the Exchange Date, to the effect that (i) GMF is a business trust
validly existing under the laws of the State of Ohio, (ii) the Acquiring
Fund is a legally designated, separate series of GMF, (iii) GMF is
registered as an open-end management investment company under the 1940 Act,
and, to the knowledge of such counsel, GMF's registration with the
Commission as an investment
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company is in full force and effect, (iv) the Acquiring Fund Shares to be
delivered to Xxxxxxxxxx II 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 GMF and no shareholder of GMF has any preemptive
right to subscription or purchase in respect thereof, (v) this Agreement
has been duly authorized, executed and delivered by GMF, and assuming due
authorization, execution and delivery of this Agreement by Xxxxxxxxxx II,
is a valid and binding obligation of GMF, enforceable in accordance with
its terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally and other equitable principles, (vi) the
execution and delivery of this Agreement did not, and the consummation of
the transactions contemplated hereby will not, violate GMF's Amended
Declaration of Trust or its By-Laws or any provision of any agreement known
to such counsel to which GMF or the Acquiring Fund is a party or by which
it is bound, (vii) the N-14 Registration Statement has been declared
effective by the Commission and, to the knowledge of such counsel, no
consent, approval, authorization or order of any court or governmental
authority is required for the consummation by GMF or the Acquiring 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, or as may be required
under state laws applicable to business trusts, (viii) in the ordinary
course of such counsel's representation of GMF and the Acquiring Fund, and
without having made any investigation, such counsel does not know of any
legal or governmental proceedings (only insofar as they relate to the
Acquiring Fund) existing on or before the date(s) of mailing of the Proxy
Statement or the Exchange Date, which are required to be described in the
Proxy Statement or to be filed as an exhibit thereto that are not described
or filed as required, (ix) in the ordinary course of such counsel's
representation of GMF and the Acquiring Fund, and without having made any
investigation, and except as otherwise disclosed, such counsel is not aware
of any litigation or administrative proceeding or investigation before any
court or governmental body that is presently pending or threatened as to
the Acquiring Fund or any of its properties or assets, and to the knowledge
of such counsel, GMF and the Acquiring Fund are not a party to or subject
to the provisions of any order, decree or judgment of any court or
governmental body, which materially and adversely affects GMF's and the
Acquiring Fund's business, and (x) based on a review of the N-14 Prospectus
and Proxy Statement (including any supplement or amendments thereto) in the
form then most recently filed with the Commission and without making any
other investigation, such counsel is not aware that those documents, as
they relate to GMF and the Acquiring Fund, contain any untrue statement of
a material fact or omit to state a material fact required to be started
therein or necessary to make the statements therein not misleading. In
rendering such opinion Xxxxxxxx Ronon Xxxxxxx & Xxxxx LLP may incorporate
certain reasonable and customary exclusions and limitations and may rely on
certain reasonable assumptions and certifications of fact received from GMF
and its officers.
(e) Xxxxxxxxxx II shall have received an opinion of Xxxxxxxx Ronon
Xxxxxxx & Young LLP addressed to Xxxxxxxxxx II and GMF in a form reasonably
satisfactory to Xxxxxxxxxx II dated the Exchange Date, with respect to the
matters specified in Section 8(e) of this Agreement. In rendering such
opinion Xxxxxxxx Ronon Xxxxxxx & Xxxxx LLP may rely on certain reasonable
assumptions and certifications of fact received from GMF and Xxxxxxxxxx II.
-11-
(f) All necessary proceedings taken by GMF in connection with the
transactions contemplated by this Agreement and all documents incidental
thereto reasonably shall be satisfactory in form and substance to
Xxxxxxxxxx II, Paul, Hasting, Xxxxxxxx & Xxxxxx LLP and Xxxxxxxx Ronon
Xxxxxxx & Xxxxx LLP.
(g) The N-14 Registration Statement shall have become effective under
the 1933 Act and any applicable Blue Sky provisions, and no stop order
suspending such effectiveness shall have been instituted or, to the
knowledge of Xxxxxxxxxx II, contemplated by the Commission or any state
regulatory authority.
(h) GMF and Xxxxxxxxxx II shall have received from the Commission or
other parties all required consents, orders and permits with respect to the
Reorganization.
(i) As of the Exchange Date, there shall have been no material change
in the investment objective, policies and restrictions of the Acquiring
Fund or any material change in the investment management fees, other fees
payable for services provided to the Acquiring Fund, or any fee waiver or
expense reimbursement undertakings of the Acquiring Fund from those
objectives, policies, restrictions, fee amounts and undertakings of the
Acquiring Fund described in the Proxy Statement.
(j) As of the Exchange Date, GMF's fidelity bond for the Acquiring
Fund shall meet all applicable requirements under the 1940 Act based on the
level of the Acquiring Fund's assets immediately after the Exchange Date.
(k) GMF shall have executed and delivered to Xxxxxxxxxx II an
Assumption of Liabilities dated as of the Exchange Date pursuant to which
the Acquiring Fund will assume all of the Stated Liabilities of the
Acquired Fund as described in Section 1(c) hereof in connection with the
transactions contemplated by this Agreement; provided that recourse for
Stated Liabilities relating to the Acquired Fund shall be limited to the
Acquiring Fund.
(l) Xxxxxxxxxx II shall have received a memorandum addressed to
Xxxxxxxxxx II and GMF, in form and substance reasonably satisfactory to
them, prepared by BISYS Fund Services, Inc. concerning compliance with each
relevant state's securities laws in connection with GMF's issuance of the
Acquiring Fund Shares.
(m) GGI has procured for the Trustees and officers of Xxxxxxxxxx II
the insurance coverage as described in Sections 5 and 11 of this Agreement.
(n) GGI shall have, pursuant to Section 5 of this Agreement, paid or
reimbursed Xxxxxxxxxx II for all Reorganization Expenses reasonably
incurred by Xxxxxxxxxx II and that have been promptly submitted to GGI a
reasonable period of time prior to the Exchange Date.
8. Conditions of GMF's Obligations. The obligations of GMF and the Acquiring
Fund hereunder shall be subject to the following conditions:
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(a) This Agreement shall have been authorized and the transactions
contemplated hereby, including the liquidation and dissolution of the
Acquired Fund, shall have been approved by the Board of Trustees of
Xxxxxxxxxx II and shareholders of the Acquired Fund in the manner required
by law.
(b) As of the Valuation Time and as of the Exchange Date, all
representations and warranties of Xxxxxxxxxx II made in this Agreement are
true and correct in all material respects as if made at and as of such
dates, Xxxxxxxxxx II and the Acquired Fund have complied with all the
agreements and satisfied all the conditions on their part to be performed
or satisfied at or prior to each of such dates, and Xxxxxxxxxx II shall
have furnished to GMF a statement, dated the Exchange Date, signed by
Xxxxxxxxxx II's Chairman and Treasurer (or other financial officer)
certifying satisfaction of this condition 8(b) as of such dates.
(c) There shall not be any material litigation or administrative
proceeding pending or overtly threatened with respect to the matters
contemplated by this Agreement.
(d) GMF shall have received an opinion of Paul, Hastings, Xxxxxxxx &
Xxxxxx LLP, in form reasonably satisfactory to GMF and dated the Exchange
Date, to the effect that (i) Xxxxxxxxxx II is a statutory trust validly
existing and in good standing under the laws of the State of Delaware, (ii)
the Acquired Fund is a legally designated, separate series of Xxxxxxxxxx
II, (iii) Xxxxxxxxxx II is registered as an open-end management investment
company under the 1940 Act, and, to the knowledge of such counsel,
Xxxxxxxxxx II's registration with the Commission as an investment company
is in full force and effect, (iv) this Agreement has been duly authorized,
executed and delivered by Xxxxxxxxxx II and, assuming due authorization,
execution and delivery of this Agreement by GMF, is a valid and binding
obligation of Xxxxxxxxxx II, enforceable in accordance with its terms,
except as the same may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights
generally and other equitable principles, (v) Xxxxxxxxxx II has power to
assign, convey, transfer and deliver the Investments and other Assets
contemplated hereby, (vi) the execution and delivery of this Agreement did
not and the consummation of the transactions contemplated hereby will not,
violate Xxxxxxxxxx II's Declaration of Trust or By-Laws, as amended, or any
provision of any agreement known to such counsel to which Xxxxxxxxxx II is
a party or by which it is bound, (vii) to the knowledge of such counsel, no
consent, approval, authorization or order of any court or governmental
authority is required for the consummation by Xxxxxxxxxx II 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 or state laws applicable to
business or statutory trusts, (viii) in the ordinary course of such
counsel's representation of Xxxxxxxxxx II and the Acquired Fund, and
without having made any investigation, such counsel does not know of any
legal or governmental proceedings (only insofar as they relate to the
Acquired Fund) existing on or before the date(s) of mailing of the Proxy
Statement or the Exchange Date, which are required to be described in the
Proxy Statement or to be filed as an exhibit thereto that are not described
or filed as required, (ix) in the ordinary course of such counsel's
representation of Xxxxxxxxxx II and the Acquired Fund, and without having
made any investigation, and except as otherwise disclosed, such counsel is
not aware of any litigation or administrative proceeding
-13-
or investigation before any court or governmental body that is presently
pending or threatened as to Xxxxxxxxxx II or the Acquired Fund or any of
its properties or assets, and to the knowledge of such counsel, Xxxxxxxxxx
II and the Acquired Fund are not a party to or subject to the provisions of
any order, decree or judgment of any court or governmental body, which
materially and adversely affects Xxxxxxxxxx II's and the Acquired Fund's
business, and (x) based on a review of the N-14 Prospectus and Proxy
Statement (including any supplement or amendments thereto) in the form then
most recently filed with the Commission and without making any other
investigation, such counsel is not aware that those documents, as they
related to Xxxxxxxxxx II and the Acquired Fund, 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 not
misleading. In rendering such opinion, Paul, Hastings, Xxxxxxxx & Xxxxxx
LLP may incorporate certain reasonable and customary exclusions and
limitations and may rely upon certain reasonable and customary assumptions
and certifications of fact received from Xxxxxxxxxx II and its officers,
and such opinion shall be limited to matters of federal and California law
and the statutory trust law of the State of Delaware.
(e) GMF, on behalf of the Acquiring Fund, shall have received an
opinion of Xxxxxxxx Ronon Xxxxxxx & Xxxxx LLP, addressed to GMF and
Xxxxxxxxxx II, in form reasonably satisfactory to GMF and dated the
Exchange Date, to the effect that for federal income tax purposes (i) the
acquisition by the Acquiring Fund of all of the assets of the Acquired Fund
as provided for in the Agreement in exchange for the Acquiring Fund Shares
and the assumption by the Acquiring Fund of all of the Stated Liabilities
of the Acquired Fund, followed by the distribution by the Acquired Fund to
its shareholders of the Acquiring Fund Shares in complete liquidation of
the Acquired Fund, will qualify as a reorganization within the meaning of
Section 368(a)(1)(F) of the Code, and the Acquired Fund and the Acquiring
Fund each will be a "party to the reorganization" within the meaning of
Section 368(b) of the Code: (ii) no gain or loss will be recognized by the
Acquired Fund upon the transfer of all of its assets to the Acquiring Fund
in exchange solely for the Acquiring Fund Shares and Acquiring Fund's
assumption of Acquired Fund's Stated Liabilities pursuant to Section 361(a)
and Section 357(a) of the Code; (iii) no gain or loss will be recognized by
the Acquiring Fund upon the receipt by it of all of the assets of the
Acquired Fund in exchange for the Acquiring Fund Shares pursuant to Section
1032(a) of the Code; (iv) no gain or loss will be recognized by the
Acquired Fund upon the distribution of the Acquiring Fund Shares to its
shareholders in complete liquidation of the Acquired Fund (in pursuance of
the Agreement) pursuant to Section 361(c)(1) of the Code; (v) the basis of
the assets of the Acquired Fund received by the Acquiring Fund will be the
same as the basis of these assets to the Acquired Fund immediately prior to
the exchange pursuant to Section 362(b) of the Code; (vi) the holding
period of the assets of the Acquired Fund received by the Acquiring Fund
will include the period during which such assets were held by the Acquired
Fund pursuant to Section 1223(2) of the Code; (vii) no gain or loss will be
recognized by the shareholders of the Acquired Fund upon the exchange of
their Acquired Fund Shares for Acquiring Fund Shares (including fractional
shares to which they may be entitled) pursuant to Section 354(a) of the
Code; (viii) the basis of the Acquiring Fund Shares received by the
shareholders of the Acquired Fund (including fractional shares to which
they may be entitled) will be the same as the basis of the Acquired Fund
Shares exchanged therefor pursuant to Section 358(a)(1) of the Code; (ix)
the holding period of the
-14-
Acquiring Fund Shares received by the shareholders of the Acquired Fund
(including fractional shares to which they may be entitled) will include
the holding period of the Acquired Fund Shares surrendered in exchange
therefor, provided that the Acquired Fund Shares were held as a capital
asset pursuant to Section 1223(1) of the Code on the Closing Date; (x) 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
issued by the United States Department of the Treasury (the "Treasury
Regulations"), the items of the Acquired Fund described in Section 381(c)
of the Code. In rendering such opinion, Xxxxxxxx Ronon Xxxxxxx & Xxxxx LLP
may assume that the Reorganization is carried out in accordance with the
terms of this Agreement, the laws of the State of Delaware and the State of
Ohio, and rely upon certain reasonable and customary assumptions and
certifications of fact received from GMF and Xxxxxxxxxx II.
(f) The N-14 Registration Statement shall have become effective under
the 1933 Act and any applicable Blue Sky provisions, and no stop order
suspending such effectiveness shall have been instituted or, to the
knowledge of GMF, contemplated by the Commission or any state regulatory
authority.
(g) All necessary proceedings taken by Xxxxxxxxxx II in connection
with the transactions contemplated by this Agreement and all documents
incidental thereto reasonably shall be satisfactory in form and substance
to GMF, Paul, Hastings, Xxxxxxxx & Xxxxxx, LLP and Xxxxxxxx Ronon Xxxxxxx &
Young LLP.
(h) Prior to the Exchange Date, the Acquired Fund 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 June 30, 2002
and the short taxable year beginning on July 1, 2002 and ending on the
Valuation Time (computed without regard to any deduction for dividends
paid), and all of its net capital gain realized in its taxable year ended
June 30, 2002 and the short taxable year beginning July 1, 2002 and ending
on the Valuation Time (after reduction for any capital loss carryover).
(i) Xxxxxxxxxx II shall have duly executed and delivered to GMF a xxxx
of sale, assignment, certificate and other instruments of transfer
("Transfer Documents") as GMF reasonably may deem necessary or desirable to
transfer all of Xxxxxxxxxx II's entire right, title and interest in and to
the Investments and all other Assets of the Acquired Fund to the Acquiring
Fund.
(j) Xxxxxxxxxx II shall have delivered, or caused to be delivered, to
GMF, on behalf of the Acquiring Fund, information, in a form reasonably
satisfactory to GMF, concerning the tax basis of the Acquired Fund in all
Investments transferred to the Acquiring Fund, together with shareholder
information including (A) the names, addresses and taxpayer identification
number of shareholders of the Acquired Fund as of the Exchange Date, (B)
the number of shares in the Acquired Fund owned by each shareholder, (C)
the dividend reinvestment elections applicable to each shareholder of the
Acquired Fund, and (D) the backup withholding and nonresident alien
withholding certifications, notices or records on file with the Acquired
Fund with respect to each shareholder.
-15-
(k) GMF and Xxxxxxxxxx II shall have received from the Commission or
other parties all required consents, orders and permits with respect to the
Reorganization.
(l) As of the Exchange Date, there shall have been no material change
in the investment objective, policies and restrictions of the Acquired Fund
nor any material change in the investment management fees, other fees
payable for services provided to the Acquired Fund, or any fee waiver or
expense reimbursement undertakings of the Acquired Fund from those
objectives, policies, restrictions, fee amounts and undertakings of the
Acquired Fund described in the Proxy Statement.
9. Termination.
(a) A majority of a party's Board of Trustees may terminate this
Agreement with respect to the Acquiring Fund or the Acquired Fund, as
appropriate, if: (i) the party's conditions precedent set forth in Sections
7 or 8, as appropriate, are not satisfied on the Exchange Date; (ii) it
becomes reasonably apparent to the party's Board of Trustees that the other
party will not be able to satisfy such conditions precedent on the Exchange
Date; or (iii) the party's Board of Trustees determines that the
consummation of the Reorganization is not in the best interests of its
shareholders and gives notice to the other party.
(b) GMF and Xxxxxxxxxx II may also, by mutual consent of their
respective Trustees, terminate this Agreement, and GMF or Xxxxxxxxxx II,
after consultation with counsel and by consent of their respective Trustees
or an officer authorized by such Trustees may, subject to Section 10 of
this Agreement, waive any condition to their respective obligations
hereunder.
10. Sole Agreement; Governing Law; 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 and shall be construed in accordance
with and governed by the laws of the Commonwealth of Pennsylvania.
This Agreement may be amended, modified or supplemented in such manner
as may be mutually agreed upon in writing by the authorized officer of GMF
and Xxxxxxxxxx II; provided, however, that following the special meeting of
the Acquired Fund's shareholders called by Xxxxxxxxxx II pursuant to
Section 7 of this Agreement, no such amendment may have the effect of
altering or changing the amount or kind of shares received by Xxxxxxxxxx
II, or altering or changing to any material extent the amount or kind of
liabilities assumed by GMF and the Acquiring Fund, or altering or changing
any other terms and conditions of the Reorganization if any of the
alterations or changes, alone or in the aggregate, would materially
adversely affect the Acquired Fund's shareholders without their further
approval.
This Agreement may be executed in any number of counterparts, each of
which, when executed and delivered, shall be deemed to be an original.
11. Insurance. GGI shall provide, for a period of not less than five years from
the Exchange Date, errors and omissions insurance coverage covering the
Trustees and officers of
-16-
Xxxxxxxxxx II (limited only to matters related to the Acquired Fund). Such
errors and omissions insurance policy shall contain terms and shall provide
coverage that are no less favorable than those contained in or provided by
the errors and omissions insurance policy currently in effect covering the
Trustees and officers of Xxxxxxxxxx II.
12. Indemnification. GGI agrees that it, or a corporate affiliate that it may
designate ("Gartmore"), shall indemnify, defend and hold harmless
Xxxxxxxxxx II's Trustees and the following officers of Xxxxxxxxxx II (and
any duly appointed replacement of any such officers) (collectively, the
"officers" and each, an "officer"): R. Xxxxxxx Xxxxx (Chairman), Xxxxxxx
Xxxxxx (Assistant Secretary) and Xxxxxx Xxx (Assistant Secretary) against
and from all losses, claims, demands, liabilities and expenses, including,
without limitation, reasonable legal and other expenses incurred in
defending claims of liabilities, arising out of or based upon actions or
failures to act or omissions by the Trustees and such officers, as the case
may be, with respect to an Acquired Fund as part of the Reorganization, but
only to the extent that such losses, claims, demands, liabilities and
expenses are not covered by the liability insurance that Gartmore is
required to obtain on behalf of and for the benefit of the Trustees and
officers as set forth in Sections 5 and 11 above (but including the
expenses, if any, of resolving any coverage issue under such liability
insurance policy); provided, however, such indemnity shall not extend to
losses, claims, demands, liabilities and expenses arising out of or based
upon actions or omissions of the Trustees or the officers, as the case may
be, that constitute willful misconduct, bad faith, gross negligence or
reckless disregard by the Trustees or the officers, as the case may be, of
their duties involved in the conduct of their respective offices.
13. Updating of Form N-14 Registration Statement. If at any time prior to the
effective time of the Reorganization a party becomes aware of any untrue
statement of material fact or omission to state a material fact required to
be stated therein or necessary to make the statements made not misleading
in light of the circumstances under which they were made in the N-14
Registration Statement, the party discovering the item shall notify the
other parties and the parties shall cooperate in promptly preparing, filing
and clearing with the SEC and, if appropriate, distributing to shareholders
appropriate disclosure with respect to the item.
14. Notices. Any notice, report, statement, certificate or demand required or
permitted by any provision of this Agreement shall be in writing and shall
be given by prepaid telecopy, certified mail or overnight express courier
to:
For the Acquired Fund:
Xxxx Xxxxxxx, President
Xxxxxxxxxx Asset Management, LLC
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
-17-
With a copy to:
Xxxxx Xxxxxxx
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
00 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
For the Acquiring Fund:
Xxxxx Xxxxxxx, Director of Strategic Planning
Gartmore Global Investments, Inc.
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
With copies to:
Xxxxxx Xxxxxx, Director, Product Development
Gartmore Global Investments, Inc.
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Xxxxxxx Xxxx
Xxxxxxxx Ronon Xxxxxxx & Xxxxx LLP
0000 Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
15. GMF, Xxxxxxxxxx II and their Trustees. The terms "Garmore Mutual Funds,"
"The Xxxxxxxxxx Funds II," the "Trustees of Gartmore Mutual Funds" and the
"Trustees of The Xxxxxxxxxx Funds II" refer respectively to the Trusts
created and the Trustees, as trustees but not individually or personally,
acting from time to time under a Declaration of Trust dated as of October
30, 1997 (with respect to Gartmore Mutual Funds) or under a Declaration of
Trust dated as of August 16, 1994 (with respect to Xxxxxxxxxx Funds II), as
such have been or may be amended from time to time, and to which reference
is hereby made and copies of which are on file at the office of the
Secretary of State of the State of Ohio and the Secretary of State of the
State of Delaware, respectively, and elsewhere as required by law, and to
any and all amendments thereto so filed or hereafter filed. The obligations
of GMF entered into in the name or on behalf thereof by any of GMF's
Trustees, representatives, or agents are not made individually, but only in
their capacities with respect to Gartmore Mutual Funds. Such obligations
are not binding upon any of the Trustees, shareholders, or representatives
of GMF personally, but bind only the assets of the Acquiring Fund of GMF.
The obligations of Xxxxxxxxxx II entered into in the name or on behalf
thereof by any of Xxxxxxxxxx II Trustees, representatives, or agents are
not made individually, but only in their capacities with respect to
Xxxxxxxxxx II. Such obligations are not binding upon any of the Trustees,
shareholders, or representatives of Xxxxxxxxxx II personally, but bind only
the assets of the Acquired Fund of Xxxxxxxxxx II. All persons dealing with
any series of shares of GMF or Xxxxxxxxxx II must look solely to the assets
of
-18-
GMF or Xxxxxxxxxx II, as the case may be, belonging to such series for the
enforcement of any claims against such trust.
THE XXXXXXXXXX FUNDS II
By /s/ R. Xxxxxxx Xxxxx
-------------------------------
R. Xxxxxxx Xxxxx
Chairman, Board of Trustees
GARTMORE MUTUAL FUNDS
By /s/ Xxxxxx Xxxxxxx
-------------------------------
Xxxxxx Xxxxxxx Treasurer - CFO
GARTMORE GLOBAL INVESTMENTS, INC.
(With respect to Sections 5, 11
and 12 and subsection 1(c)(i)(B)
of this Agreement only)
By /s/ Xxxxxx Xxxxxxx
-------------------------------
Xxxxxx Xxxxxxx Xx. V.P. - CAO
COMMERZBANK AG
(With respect to Section 5 of this
Agreement only)
By
-------------------------------
(Name) (Title)
-19-
