Exhibit No. EX-99.4(a)
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, a Massachusetts business
trust ("Xxxxxxxxxx"), Gartmore Mutual Funds, an Ohio business trust ("GMF"),
Gartmore Global Investments, Inc., a Delaware corporation ("GGI") (with respect
to Sections 5, 12 and 13 and subsection 1(c)(i)(B) only), and Commerzbank AG, a
banking corporation organized under the laws of the Federal Republic of Germany
("Commerzbank") (with respect to Section 5 only).
Background Information
X. Xxxxxxxxxx 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 and Class A shares of beneficial
interest, $0.01 par value, of the following two series:
Xxxxxxxxxx Global Opportunities Fund; and
Xxxxxxxxxx Global Focus Fund (collectively, the "Acquired Funds" and
singly, an "Acquired Fund").
B. GMF is registered under the 1940 Act as an open-end investment company
of the management type, and has issued and outstanding Class A shares of
beneficial interest, without par value, of the Gartmore Worldwide Leaders Fund
(the "Acquiring Fund").
C. Each 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 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 each
Acquired Fund to its shareholders in connection with the dissolution of the
Acquired Fund, all upon the terms and provisions of this Agreement (each, a
"Reorganization" and collectively, the "Reorganizations").
D. Each of the Acquired Funds and the Acquiring Fund has elected to be a
regulated investment company as described in Section 851 of the United States
Internal Revenue Code of 1986, as amended (the "Code").
E. 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 each
Acquired Fund and the Acquiring Fund.
F. The Board of Trustees of Xxxxxxxxxx has determined that the
Reorganizations are in the best interests of Xxxxxxxxxx and each Acquired Fund
and that the interests of the Acquired Funds' shareholders will not be diluted
as a result thereof.
G. The Board of Trustees of GMF has determined that the Reorganizations are
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 Funds and to the other terms and conditions contained herein
(including the condition that each 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 and each 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 and
each Acquired Fund on the Exchange Date (as defined below), all of the
Investments (as defined below), cash and other assets of the Acquired Funds
(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 that Acquired Fund transferred to the
Acquiring Fund, as provided in Section 4, less the liabilities of that
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 on behalf of the Acquired Funds shall consist of all of the
Acquired Funds' property, including, without limitation, all Investments
(as defined below), cash and dividends or interest receivables which are
owned by the Acquired Funds, and any deferred or prepaid expenses shown as
an asset on the books of the Acquired Funds, as of the Valuation Time
described in Section 4. As used in this Agreement, the term "Investments"
shall mean the Acquired Funds' 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, on behalf of the
Acquired Funds, shall make after December 31, 2002 only in the ordinary
course of its business.
(c) Liabilities Assumed. Prior to the Exchange Date, Xxxxxxxxxx will
discharge or cause to be discharged, or make provision for the payment of,
all of the Acquired Funds' known liabilities, obligations and any
unreconciled differences. The Acquiring Fund shall assume (and the Acquired
Funds shall thereupon be relieved of) (i) those liabilities, expenses,
costs and charges of the Acquired Funds reflected in the unaudited
statements of assets and liabilities of the Acquired Funds as of the
Valuation Time, prepared by or on behalf of Xxxxxxxxxx and the Acquired
Funds 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,
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costs and charges unknown at the Valuation Time, but excluding, without
limitation, liabilities, expenses, costs and charges involving or relating
to any legal, administrative or other enforcement proceedings as well as
other extraordinary items ((i) 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, each 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 an Acquired Fund receiving Acquiring Fund
Shares for Class R and Class A shares of that Acquired Fund. Xxxxxxxxxx
shall take such further action as may be required, necessary or appropriate
under Xxxxxxxxxx'x Declaration of Trust, Massachusetts law and the Code to
effect the complete liquidation and dissolution of the Acquired Funds.
Xxxxxxxxxx, 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 Funds.
2. Representations, Warranties and Agreements of Xxxxxxxxxx. Xxxxxxxxxx
represents and warrants to and agrees with GMF and the Acquiring Fund that:
(a) Xxxxxxxxxx is a business trust validly existing and in good
standing under the laws of the Commonweatlh of Massachusetts and has power
to own all of its properties and assets and to carry out its obligations
under this Agreement. Each Acquired Fund is a legally designated, separate
series of Xxxxxxxxxx.
(b) Xxxxxxxxxx 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 has
elected to qualify and has qualified each of the Acquired Funds as a
regulated investment company under Part I of Subchapter M of the Code as of
and since such Acquired Fund's first taxable year, and each 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 Funds,
such statements having been audited by PricewaterhouseCoopers LLP,
independent auditors of Xxxxxxxxxx, 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 Funds, have been furnished to GMF. Such statements
of assets and liabilities fairly present the financial position of the
Acquired Funds as of such dates and such statements of
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operations and changes in net assets fairly reflect the results of
operations and changes in net assets for the periods covered thereby in
conformity with generally accepted accounting principles, and there are no
known material liabilities of the Acquired Funds as of such dates which are
not disclosed therein.
(d) The prospectus of the Acquired Funds 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 Prospectus"), in the form filed by or on behalf
of Xxxxxxxxxx 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, threatened against Xxxxxxxxxx or any
Acquired Fund. Xxxxxxxxxx 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,
on behalf of any Acquired Fund, is a party, other than as disclosed in the
Xxxxxxxxxx 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 or any Acquired Fund on or prior to the Exchange
Date.
(g) The Acquired Funds have 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'x 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 Funds have 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'x 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 Prospectus
and that are consistent with, and as of the Exchange Date will be
consistent with, the investment objective, policies and restrictions of the
applicable Acquired Fund in all material respects.
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(i) Xxxxxxxxxx and the Acquired Funds have filed or will file all
federal, state and local tax returns which, to the knowledge of
Xxxxxxxxxx'x officers, are required to be filed by Xxxxxxxxxx and the
Acquired Funds and have paid or will pay all federal, state and local taxes
shown to be due on said returns or on any assessments received by
Xxxxxxxxxx or the Acquired Funds. All tax liabilities of Xxxxxxxxxx and the
Acquired Funds have been adequately provided for on their books, and no tax
deficiency or liability of Xxxxxxxxxx or the Acquired Funds 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
and the Acquired Funds 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 or any
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 or GMF, except as previously
disclosed to GMF by Xxxxxxxxxx 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 or
any 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 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
included therein (the "Proxy Statement"), on the effective date of the N-14
Registration Statement and insofar as they relate to Xxxxxxxxxx and the
Acquired Funds, (i) will comply in all material respects with the
provisions of the 1933 Act, the 1934 Act and the 1940 Act and the rules and
regulations thereunder and (ii) will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein 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
and the Acquired Funds, will not contain any untrue statement of a material
fact or omit to state a material
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fact required to be stated therein or necessary to make the statements
therein not misleading.
3. Representations, Warranties and Agreements of GMF. GMF represents and
warrants to and agrees with Xxxxxxxxxx and the Acquired Funds 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. GMF has elected to qualify
and has qualified the Acquiring Fund as a regulated investment company
under Part I of Subchapter M of the Code as of and since its first taxable
year, and Acquiring Fund is qualified and intends to continue to qualify as
a regulated investment company.
(c) The statements of assets and liabilities, including the statements
of investments as of October 31, 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 Acquiring Fund,
such statements having been audited by PricewaterhouseCoopers LLP,
independent auditors of GMF, have been furnished to Xxxxxxxxxx. Such
statements of assets and liabilities fairly present the financial position
of the Acquiring 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 accepted accounting principles, and there are no known material
liabilities of the Acquiring Fund as of such dates which are not disclosed
therein.
(d) The Acquiring Fund has no known liabilities of a material nature,
contingent or otherwise, other than those shown as belonging to it on the
statements of assets and liabilities at October 31, 2002, and those
incurred in the ordinary course of GMF's business as an investment company
since that date and of a similar nature to and consistent with those shown
on such statement of assets and liabilities at October 31, 2002.
(e) The prospectus of the Acquiring Fund and the related Statement of
Additional Information dated as of March 1, 2003, as supplemented or
amended to date, in the forms filed by GMF with the Commission (together,
the "Acquiring Fund Prospectus"), have been furnished to Xxxxxxxxxx and do
not 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.
(f) Except as may have been previously disclosed to Xxxxxxxxxx, there
are no material legal, administrative or other proceedings pending or, to
the knowledge of
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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.
(g) 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 in writing.
(h) GMF and the Acquiring Fund have filed or will file all federal,
state and local tax returns which, to the knowledge of GMF's officers, are
required to be filed by GMF and the Acquiring Fund and have paid or will
pay all federal, state and local taxes shown to be due on such returns or
on any assessments received by GMF or the Acquiring Fund. All tax
liabilities of GMF and the Acquiring Fund have been adequately provided for
on their books, and no tax deficiency or liability of GMF or the Acquiring
Fund has been asserted, and no question with respect thereto has been
raised, by the Internal Revenue Service or by any state or local tax
authority for taxes in excess of those already paid.
(i) No consent, approval, authorization or order of any governmental
authority is required for the consummation by 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.
(j) As of both the Valuation Time and the Exchange Date and otherwise
as described in Section 3(i), GMF and the Acquiring Fund will have full
right, power and authority to acquire the Investments and any other Assets
of the Acquired Funds and to assume the Stated Liabilities to be
transferred to the Acquiring Fund pursuant to this Agreement.
(k) 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
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Xxxxxxxxxx or any Acquired Fund to GMF for use in the N-14 Registration
Statement, the N-14 Prospectus or the Proxy Statement.
(l) GMF has no plan or intention to issue additional shares of the
Acquiring Funds following the Reorganizations 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 Acquiring Fund Shares issued to Acquired Fund shareholders pursuant to
the Reorganizations, other than through redemptions arising in the ordinary
course of that business. GMF will actively continue the Acquired Funds'
business in the same manner that the Acquired Funds conducted it
immediately before the Reorganizations, 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 Reorganizations, 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.
(m) The Acquiring Fund Shares to be issued by GMF have been duly
authorized and, when issued and delivered by GMF to Xxxxxxxxxx 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.
(n) 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 a number of corresponding Acquiring Fund Shares
having an aggregate net asset value equal to the value of the Assets of the
Acquired Funds acquired by the Acquiring Fund, less the value of the Stated
Liabilities of the Acquired Funds assumed, determined as hereafter provided
in this Section 4.
(a) Delivery of the Assets of the Acquired Funds to be transferred,
assumption of the Stated Liabilities of the Acquired Funds 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 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 each 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 Prospectus.
(c) The net asset value of each of the Acquiring Fund Shares will be
determined to the nearest full cent as of the Valuation Time, using the
valuation
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procedures set forth in the Acquiring Fund 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 an
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 an
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 on a share deposit receipt registered in the name of Xxxxxxxxxx.
Xxxxxxxxxx shall distribute in liquidation the Acquiring Fund Shares
received by it hereunder pro rata to the shareholders of the Acquired Funds
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 Funds in connection with the acquisition of Assets except that
recourse for assumed Stated Liabilities related to an 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 or the Acquired Funds, whether accrued or contingent in
connection with the acquisition of Assets and subsequent dissolution of the
Acquired Funds or Xxxxxxxxxx or otherwise.
5. Expenses, Fees, etc.
(a) Except as set forth below, each of Xxxxxxxxxx and GMF shall be
responsible for its respective fees and expenses of the Reorganizations.
Notwithstanding the foregoing, GGI, the parent corporation to the
investment adviser of the Acquiring Fund, will be responsible for all of
Xxxxxxxxxx'x and GMF's fees, costs and expenses relating to (i) the
Reorganizations, including, but not limited to, the N-14 Registration
Statement, all of Xxxxxxxxxx'x 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 Reorganizations, and any and all
special meetings of the Board of Trustees of Xxxxxxxxxx as such meetings
relate to the Reorganizations and the Acquired Funds, 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
omissions insurance for the Trustees and officers of Xxxxxxxxxx
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(limited only to matters related to the Acquired Funds and in a form
reasonably acceptable to Xxxxxxxxxx and as described in Section 12 hereto).
(b) Each of Xxxxxxxxxx, GMF, GGI and Commerzbank agrees to use its
commercially reasonable best efforts to complete the Reorganizations. This
agreement notwithstanding:
(i) Should either Xxxxxxxxxx or GMF, in good faith, choose for
commercially reasonable reasons to abandon one or more of the
Reorganizations prior to their completion, or if such Reorganizations
cannot be completed other than for a reason set forth in (ii), (iii), or
(iv) below (collectively, the "Abandoned Reorganizations" and each, an
"Abandoned Reorganization"), then the aggregate Reorganization Expenses
that are reasonably related to the Abandoned Reorganization(s) 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 one or more of the Reorganizations, then GGI will bear 100% of
the Reorganization Expenses that are reasonably related to the
Reorganization(s) that are not completed for such reason.
(iii) Should Xxxxxxxxxx breach or cause to be breached a material
provision of this Agreement resulting in a failure to complete one or more
of the Reorganizations, then Commerzbank will bear 100% of the
Reorganization Expenses that are reasonably related to the
Reorganization(s) that are not completed for such reason.
(iv) Should any of the Reorganizations not receive the requisite
vote of shareholders to approve such Reorganization(s), then GGI will bear
100% of the Reorganization Expenses that are reasonably related to the
Reorganization(s) that are not completed for such reason.
(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 or any Acquired Fund is a party.
6. Special Meeting of Shareholders; Dissolution
(a) Xxxxxxxxxx agrees to call a special meeting of shareholders of the
Acquired Funds as soon as is practicable for the purpose of considering the
transfer of all of the Assets, subject to Stated Liabilities, of the
Acquired Funds to the Acquiring Fund as herein provided, authorizing and
approving this Agreement, and authorizing and approving the liquidation and
dissolution of the Acquired Funds, 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 Funds shall have
approved this Agreement, and the transactions contemplated herein,
including the liquidation and dissolution of the Acquired Funds, in the
manner required by law and Xxxxxxxxxx'x Declaration of Trust at such a
meeting on or before the Valuation Time. Certified copies
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of the results evidencing such approval shall be promptly delivered to GMF
after such special meeting.
(b) Xxxxxxxxxx agrees that the liquidation and dissolution of the
Acquired Funds will be effected in the manner provided in Xxxxxxxxxx'x
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 Funds without first paying or adequately
providing for the payment of all of the Acquired Funds' known debts,
obligations and liabilities.
(c) Each of Xxxxxxxxxx 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 complete the Reorganizations, 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'x Obligations. The obligations of Xxxxxxxxxx
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 Funds, shall have been approved by the Board of Trustees of GMF
and the shareholders of the Acquired Funds 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 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 shall have received an opinion of Xxxxxxxx Ronon
Xxxxxxx & Xxxxx LLP in form reasonably satisfactory to Xxxxxxxxxx, 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 company is in full force and effect, (iv) the
Acquiring Fund Shares to be delivered to Xxxxxxxxxx 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
-11-
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, 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 shall have received an opinion of Xxxxxxxx Ronon
Xxxxxxx & Young LLP addressed to Xxxxxxxxxx and GMF and in a form
reasonably satisfactory to Xxxxxxxxxx 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.
-12-
(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
Montgomery, Paul, Hastings, 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, contemplated by the Commission or any state
regulatory authority.
(h) GMF and Xxxxxxxxxx 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, restructions, 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 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
Funds as described in Section 1(c) hereof in connection with the
transactions contemplated by this Agreement; provided that recourse for
Stated Liabilities relating to an Acquired Fund shall be limited to the
Acquiring Fund.
(l) Xxxxxxxxxx shall have received a memorandum addressed to
Xxxxxxxxxx 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 the
insurance coverage as described in Sections 5 and 12 of this Agreement.
(n) GGI shall have, pursuant to Section 5 of this Agreement, paid or
reimbursed Xxxxxxxxxx for all Reorganization Expenses reasonably incurred
by Xxxxxxxxxx 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:
-13-
(a) This Agreement shall have been authorized and the transactions
contemplated hereby, including the liquidation and dissolution of the
Acquired Funds, shall have been approved by the Board of Trustees of
Xxxxxxxxxx and shareholders of the Acquired Funds in the manner required by
law.
(b) As of the Valuation Time and as of the Exchange Date, all
representations and warranties of Xxxxxxxxxx made in this Agreement are
true and correct in all material respects as if made at and as of such
dates, Xxxxxxxxxx and the Acquired Funds 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 shall have
furnished to GMF a statement, dated the Exchange Date, signed by
Xxxxxxxxxx'x [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 is a business trust validly
existing [and in good standing] under the laws of the Commonwealth of
Massachusetts, (ii) each Acquired Fund is a legally designated, separate
series of Xxxxxxxxxx, (iii) Xxxxxxxxxx is registered as an open-end
management investment company under the 1940 Act, and, to the knowledge of
such counsel, Xxxxxxxxxx'x 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 and, assuming
due authorization, execution and delivery of this Agreement by GMF, is a
valid and binding obligation of Xxxxxxxxxx, 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
has the business trust 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'x Declaration of Trust or
By-Laws, as amended, or any provision of any agreement known to such
counsel to which Xxxxxxxxxx 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 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 trusts, (viii) in the ordinary course of such
counsel's representation of Xxxxxxxxxx and the Acquired Funds, and without
having made any investigation, such counsel does not know of any legal or
governmental proceedings (only insofar as they relate to an 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 and
-14-
the Acquired Funds, 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 Xxxxxxxxxx or an
Acquired Fund or any of its properties or assets, and to the knowledge of
such counsel, Xxxxxxxxxx and the Acquired Funds 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'x and
the Acquired Funds' 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 and the Acquired Funds,
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 and its
officers, and such opinion shall be limited to matters of federal and
California law and the business trust law of the Commonwealth of
Massachusetts.
(e) GMF, on behalf of the Acquiring Fund, shall have received an
opinion of Xxxxxxxx Ronon Xxxxxxx & Xxxxx LLP, addressed to GMF and
Xxxxxxxxxx, 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
Funds 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 Funds, followed by the distribution by the
Acquired Funds to their shareholders of the Acquiring Fund Shares in
complete liquidation of the Acquired Funds, will qualify as a
reorganization within the meaning of Section 368(a)(1) of the Code, and the
Acquired Funds 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 Funds upon the transfer of
all of their assets to the Acquiring Fund in exchange solely for the
Acquiring Fund Shares and Acquiring Fund's assumption of Acquired Funds'
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 Funds 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 Funds upon the
distribution of the Acquiring Fund Shares to their shareholders in complete
liquidation of the Acquired Funds (in pursuance of the Agreement) pursuant
to Section 361(c)(1) of the Code; (v) the basis of the assets of the
Acquired Funds received by the Acquiring Fund will be the same as the basis
of these assets to the Acquired Funds immediately prior to the exchange
pursuant to Section 362(b) of the Code; (vi) the holding period of the
assets of the Acquired Funds received by the Acquiring Fund will include
the period during which such assets were held by the Acquired Funds
pursuant to Section 1223(2) of the Code; (vii) no gain or loss will be
recognized by the shareholders of the Acquired Funds 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
-15-
Acquiring Fund Shares received by the shareholders of the Acquired Funds
(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 Acquiring
Fund Shares received by the shareholders of the Acquired Funds (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 Funds described in Section 381(c)
of the Code, subject to the conditions and limitations specified in
Sections 381, 382, 383 and 384 of the Code and the Treasury Regulations. In
rendering such opinion, Xxxxxxxx Ronon Xxxxxxx & Xxxxx LLP may assume that
the Reorganizations are carried out in accordance with the terms of this
Agreement, the laws of the Commonwealth of Massachusetts and the State of
Ohio, and rely upon certain reasonable and customary assumptions and
certifications of fact received from GMF and Xxxxxxxxxx.
(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 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, each 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 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'x entire right, title and interest in and to the
Investments and all other Assets of the Acquired Funds to the Acquiring
Fund.
(j) Xxxxxxxxxx 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 Funds in all
Investments transferred to the Acquiring Fund, together with shareholder
information including (A) the names,
-16-
addresses and taxpayer identification number of shareholders of the
Acquired Funds as of the Exchange Date, (B) the number of shares in the
Acquired Funds owned by each shareholder, (C) the dividend reinvestment
elections applicable to each shareholder of the Acquired Funds, and (D) the
backup withholding and nonresident alien withholding certifications,
notices or records on file with the Acquired Funds with respect to each
shareholder.
(k) GMF and Xxxxxxxxxx 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 objectives, policies and restrictions of the Acquired
Funds nor any material change in the investment management fees, other fees
payable for services provided to each Acquired Fund, or any fee waiver or
expense reimbursement undertakings of the Acquired Funds from those
objectives, policies, restrictions, fee amounts and undertakings of the
Acquired Funds described in the Proxy Statement.
9. Severability. Subject to the conditions set forth in this Agreement and
notwithstanding anything herein which may be construed to the contrary, the
failure of one of the Acquired Funds to consummate the transactions
contemplated hereby shall not, or to comply with the conditions set forth
in Section 8 of this Agreement may not, affect the consummation or validity
of the Reorganization with respect to the other Acquired Fund, and the
provisions of this Agreement shall be construed to effect this intent,
including, without limitation, as the context requires, construing the term
"Acquired Fund" as meaning only that series of Xxxxxxxxxx that is involved
in the Reorganization as of the Exchange Date.
10. Termination.
(a) A majority of a party's Board of Trustees may terminate this
Agreement with respect to the Acquiring Fund or the Acquired Funds, 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 Reorganizations are not in the best interests of its
shareholders and gives notice to the other party.
(b) GMF and Xxxxxxxxxx may also, by mutual consent of their respective
Trustees, terminate this Agreement, and GMF or Xxxxxxxxxx, after
consultation with counsel and by consent of their respective Trustees or an
officer authorized by such Trustees may, subject to Section 11 of this
Agreement, waive any condition to their respective obligations hereunder.
11. 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
-17-
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; provided, however, that following the special meeting of
the Acquired Funds' shareholders called by Xxxxxxxxxx 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, 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 Reorganizations if any of the alterations or
changes, alone or in the aggregate, would materially adversely affect the
Acquired Funds' 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.
12. 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 Xxxxxxxxxx (limited only to matters related to the
Acquired Funds). 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.
13. Indemnification. GGI agrees that it, or a corporate affiliate that it may
designate ("Gartmore"), shall indemnify, defend and hold harmless
Xxxxxxxxxx'x Trustees and the following officers of Xxxxxxxxxx (and any
duly appointed replacement of 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 Reorganizations, 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 12 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.
14. 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
-18-
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.
15. 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
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
16. GMF, Xxxxxxxxxx and their Trustees. The terms "Garmore Mutual Funds," "The
Xxxxxxxxxx Funds," the "Trustees of Gartmore Mutual Funds" and the
"Trustees of The Xxxxxxxxxx Funds" refer respectively to the Trusts created
and the Trustees, as trustees but not individually or personally, acting
from time to time under an Amended Declaration of Trust dated as of October
30, 1997 (with respect to Gartmore Mutual
-19-
Funds) or under a Declaration of Trust dated as of May 10, 1990 (with
respect to The Xxxxxxxxxx Funds), 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 Commonwealth of Massachusetts, 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
entered into in the name or on behalf thereof by any of The Xxxxxxxxxx
Funds' Trustees, representatives, or agents are not made individually, but
only in their capacities with respect to The Xxxxxxxxxx Funds. Such
obligations are not binding upon any of the Trustees, shareholders, or
representatives of Xxxxxxxxxx personally, but bind only the assets of the
Acquired Fund of Xxxxxxxxxx. All persons dealing with any series of shares
of GMF or Xxxxxxxxxx must look solely to the assets of GMF or Xxxxxxxxxx,
as the case may be, belonging to such series for the enforcement of any
claims against such trust.
THE XXXXXXXXXX FUNDS GARTMORE MUTUAL FUNDS
By /s/ R. Xxxxxxx Xxxxx By /s/ Xxxxxx Xxxxxxx
----------------------------- ------------------------------------------
R. Xxxxxxx Xxxxx Xxxxxx Xxxxxxx Treasurer - CFO
Chairman, Board of Trustees
GARTMORE GLOBAL INVESTMENTS, INC.
(With respect to Sections 5, 12 and 13 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)
-20-
