EXHIBIT (4)
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the "Agreement") is made as of
May __, 1998 by and between The One Group-Registered Trademark-, a Massachusetts
business trust, ("One Group") and Marquis Funds, a Massachusetts business trust
("Marquis"). The capitalized terms used herein shall have the meaning ascribed
to them in this Agreement.
I. PLAN OF REORGANIZATION
(a) Marquis will sell, assign, convey, transfer and deliver to One Group,
and One Group will acquire, on the Exchange Date all of the properties and
assets existing at the Valuation Time in Marquis' Institutional Money Market
Fund ("Marquis Institutional"), Marquis' Treasury Securities Money Market Fund
("Marquis Treasury Securities"), Marquis' Tax-Exempt Money Market Fund ("Marquis
Tax-Exempt"), Marquis' Government Securities Fund ("Marquis Government"),
Marquis' Strategic Income Bond Fund ("Marquis Strategic Income"), Marquis'
Louisiana Tax-Free Income Fund ("Marquis Louisiana"), Marquis' Balanced Fund
("Marquis Balanced"), Marquis' Value Equity Fund ("Marquis Value"), Marquis'
Growth Equity Fund ("Marquis Growth"), Marquis' Small Cap Equity Fund ("Marquis
Small Cap"), and Marquis' International Equity Fund ("Marquis International"),
(Marquis Institutional, Marquis Treasury Securities, Marquis Tax-Exempt, Marquis
Government, Marquis Strategic Income, Marquis Louisiana, Marquis Balanced,
Marquis Value, Marquis Growth, Marquis Small Cap and Marquis International, each
is a "Marquis Fund" and are collectively the "Marquis Funds"), such acquisition
to be made by The One Group Treasury Only Money Market Fund ("One Group Treasury
Only"), The One Group U.S. Treasury Securities Money Market Fund ("One Group
Treasury Securities"), The One Group Municipal Money Market Fund ("One Group
Municipal"), One Group Government Bond Fund ("One Group
Government"), The One Group Income Bond Fund ("One Group Income"), The One Group
Louisiana Municipal Bond Fund ("One Group Louisiana"), The One Group Asset
Allocation Fund ("One Group Asset Allocation"), The One Group Disciplined Value
Fund ("One Group Value"), The One Group Growth Opportunities Fund ("One Group
Growth"), The One Group Small Capitalization Fund ("One Group Small
Capitalization"), and The One Group International Equity Index Fund ("One Group
International Index") (One Group Treasury Only, One Group Treasury Securities,
One Group Municipal, One Group Government, One Group Income, One Group
Louisiana, One Group Asset Allocation, One Group Value, One Group Growth, One
Group Small Capitalization and One Group International Index, each is a "One
Group Fund" and are collectively the "One Group Funds"), respectively, of One
Group. For purposes of this Agreement the respective Marquis Funds correspond
to the One Group Funds as follows: Marquis Institutional corresponds to One
Group Treasury Only; Marquis Treasury Securities corresponds to One Group
Treasury Securities; Marquis Tax-Exempt corresponds to One Group Municipal;
Marquis Government corresponds to One Group Government; Marquis Strategic Income
corresponds to One Group Income; Marquis Louisiana corresponds to One Group
Louisiana; Marquis Balanced corresponds to One Group Asset Allocation; Marquis
Value corresponds to One Group Value; Marquis Growth corresponds to One Group
Growth; Marquis Small Cap corresponds to One Group Small Capitalization; and
Marquis International corresponds to One Group International Index. In
consideration therefor, each One Group Fund shall, on the Exchange Date, assume
all of the liabilities of the corresponding Marquis Fund in exchange for a
number of full and fractional One Group Class A, Fiduciary Class or Class B
shares of the corresponding One Group Fund (collectively, "Shares") having an
aggregate net asset value equal to the value of all of the assets of
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each Marquis Fund transferred to the corresponding One Group Fund on such date
less the value of all of the liabilities of each Marquis Fund assumed by the
corresponding One Group Fund on that date. It is intended that each
reorganization described in this Agreement shall be a tax-free reorganization
under the Internal Revenue Code of 1986, as amended (the "Code").
(b) Upon consummation of the transactions described in paragraph (a) of
this Agreement, each Marquis Fund shall distribute in complete liquidation to
its respective shareholders of record as of the Exchange Date the Shares
received by it, each shareholder being entitled to receive that number of Shares
equal to the proportion which the number of shares of beneficial interest of the
applicable class of the Marquis Fund held by such shareholder bears to the
number of such shares of such class of the Marquis Fund outstanding on such
date. If the Marquis shareholder of record is a financial organization
authorized to act in a fiduciary, advisory, custodial or similar capacity, that
shareholder will receive One Group Fiduciary Class Shares. All other Marquis
Class A, Retail Class and Cash Sweep Class shareholders will receive One Group
Class A Shares. Shareholders of record holding Marquis Class B Shares will
receive One Group Class B shares.
II. AGREEMENT
One Group and Marquis represent, warrant and agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF MARQUIS. Marquis and each Marquis
Fund jointly and severally represent and warrant to and agree with One Group and
each One Group Fund that:
(a) Marquis is a business trust duly established and validly existing
under the laws of the Commonwealth of Massachusetts and has power to own all
of its properties and assets and to carry out its obligations under this
Agreement. Marquis and each Marquis Fund is not required to qualify as a
foreign association in any jurisdiction. Marquis and each Marquis Fund has
all necessary
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federal, state and local authorizations to carry on its business as now being
conducted and to fulfill the terms of this Agreement, except as set forth in
Section 1(l).
(b) Marquis is registered under the Investment Company Act of 1940, as
amended (the "1940 Act"), as an open-end management investment company, and such
registration has not been revoked or rescinded and is in full force and effect.
Each Marquis Fund has elected to qualify and has qualified as a regulated
investment company under Part 1 of Subchapter M of the Code, as of and since its
first taxable year, and qualifies and intends to continue to qualify as a
regulated investment company for its taxable year ending upon its liquidation.
Each Marquis Fund has been a regulated investment company under such sections of
the Code at all times since its inception.
(c) The statements of assets and liabilities, statements of operations,
statements of changes in net assets and schedules of portfolio investments
(indicating their market values) for each Marquis Fund at and for the year ended
September 30, 1997, such statements and schedules having been audited by Xxxxxx
Xxxxxxxx, LLP, independent accountants to Marquis, have been furnished to One
Group. Unaudited statements of net assets, statement of operations, statement
of changes in net assets, and schedules of portfolio investments for the period
ended March 31, 1998 also have been provided to One Group.
(d) The prospectuses of each Marquis Fund dated February 1, 1998
(collectively, the "Marquis Prospectuses") and the Statement of Additional
Information for the Marquis Funds dated February 1, 1998 and on file with the
Securities and Exchange Commission (the "Commission"), which have been
previously furnished to One Group, did not as of their dates and do not as of
the date hereof contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading.
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(e) There are no material legal, administrative or other proceedings
pending or, to the knowledge of Marquis or any Marquis Fund, threatened against
Marquis or any Marquis Fund which assert liability on the part of Marquis or any
Marquis Fund.
(f) There are no material contracts outstanding to which Marquis or any
Marquis Fund is a party, other than as disclosed in the Marquis Prospectuses and
the corresponding Statement of Additional Information, or in the Registration
Statement and the Proxy Statement as defined herein.
(g) Neither Marquis nor any Marquis Fund has any known liabilities of a
material nature, contingent or otherwise, other than those shown as belonging to
it on its statement of assets and liabilities as of March 31, 1998, and those
incurred in the ordinary course of Marquis's business as an investment company
since that date. Prior to the Exchange Date, Marquis will advise One Group of
all known material liabilities, contingent or otherwise, incurred by it and each
Marquis Fund subsequent to March 31, 1998, whether or not incurred in the
ordinary course of business.
(h) As used in this Agreement, the term "Investments" shall mean each
Marquis Fund's investments shown on the schedule of its portfolio investments as
of September 30, 1997 and March 31, 1998, referred to in Section 1(c) hereof, as
supplemented with such changes as Marquis or each Marquis Fund shall make after
March 31, 1998, which changes have been disclosed to One Group, and changes made
on and after the date of this Agreement after advising One Group of such
proposed changes, and changes resulting from stock dividends, stock split-ups,
mergers and similar corporate actions.
(i) Each Marquis Fund has filed or will file all federal and state tax
returns which, to the knowledge of Marquis's officers, are required to be filed
by each Marquis Fund and has paid or will pay all federal and state taxes shown
to be due on said returns or on any assessments received by
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each Marquis Fund. All tax liabilities of each Marquis Fund have been
adequately provided for on its books, and no tax deficiency or liability of any
Marquis 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 as described in Section 8(a) and otherwise as described in
Section 1(1), Marquis on behalf of each Marquis Fund will have full right, power
and authority to sell, assign, transfer and deliver the Investments and any
other assets and liabilities of each Marquis Fund to be transferred to the
corresponding One Group Fund pursuant to this Agreement. At the Exchange Date,
subject only to the delivery of the Investments and any such other assets and
liabilities as contemplated by this Agreement, One Group will, on behalf of each
One Group Fund, acquire the Investments and any such other assets subject to no
encumbrances, liens or security interests in favor of any third party creditor
of Marquis or a Marquis Fund and, except as described in Section 1(k), without
any restrictions upon the transfer thereof.
(k) No registration under the Securities Act of 1933, as amended (the
"1933 Act"), of any of the Investments would be required if they were, as of the
time of such transfer, the subject of a public distribution by either of Marquis
or One Group, except as previously disclosed to One Group by Marquis in writing.
(l) No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by Marquis or any
Marquis 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
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as used herein shall include the laws of the District of Columbia and of Puerto
Rico) or the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the "H-S-R
Act").
(m) The registration statement (the "Registration Statement") filed with
the Commission by One Group on Form N-14 relating to the Shares issuable
hereunder, and the proxy statement of Marquis included therein (the "Proxy
Statement"), on the effective date of the Registration Statement and insofar as
they relate to Marquis and the Marquis 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 8(a) below and
on the Exchange Date, the prospectus contained in the Registration Statement of
which the Proxy Statement is a part (the "Prospectus"), as amended or
supplemented by any amendments or supplements filed with the Commission by One
Group, insofar as it relates to Marquis and the Marquis Funds, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the representations and warranties in this
subsection shall apply only to statements of fact relating to Marquis and any
Marquis Fund contained in the Registration Statement, the Prospectus or the
Proxy Statement, or omissions to state in any thereof a material fact relating
to Marquis or any Marquis Fund, as such Registration Statement, Prospectus and
Proxy Statement shall be furnished to Marquis in definitive form as soon as
practicable following effectiveness of the Registration Statement and before
any public distribution of the Prospectus or Proxy Statement.
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(n) All of the issued and outstanding shares of beneficial interest of
each Marquis Fund have been offered for sale and sold in conformity with all
applicable federal and state securities laws.
(o) Each of the Marquis Funds is qualified, and will at all times through
the Exchange Date qualify for taxation as a "regulated investment company" under
Sections 851 and 852 of the Code.
(p) At the Exchange Date, each of the Marquis Funds, as One Group may
reasonably direct via written instructions, will have sold such of its assets,
if any, as necessary to assure that, after giving effect to the acquisition of
the assets pursuant to this Agreement, each of the One Group Funds (other than
One Group Louisiana) will remain a "diversified company" within the meaning of
Section 5(b) (l) of the 1940 Act and in compliance with such other mandatory
investment restrictions as are set forth in the One Group Prospectuses
previously furnished to Marquis.
2. REPRESENTATIONS AND WARRANTIES OF ONE GROUP. One Group and each One
Group Fund jointly and severally represent and warrant to and agree with Marquis
and each Marquis Fund that:
(a) One Group is a business trust duly established and validly existing
under the laws of The Commonwealth of Massachusetts and has power to carry on
its business as it is now being conducted and to carry out this Agreement. One
Group and each One Group Fund is not required to qualify as a foreign
association in any jurisdiction. One Group and each One Group Fund has all
necessary federal, state and local authorizations to own all of its properties
and assets and to carry on its business as now being conducted and to fulfill
the terms of this Agreement, except as set forth in Section 2(i).
(b) One Group is registered under the 1940 Act as an open-end management
investment company, and such registration has not been revoked or rescinded and
is in full force and effect.
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Each One Group Fund has elected to qualify and has qualified as a regulated
investment company under Part 1 of Subchapter M of the Code, as of and since its
first taxable year, and qualifies and intends to continue to qualify as a
regulated investment company for its taxable year ending June 30, 1998. Each
One Group Fund has been a regulated investment company under such sections of
the Code at all times since its inception.
(c) The statements of assets and liabilities, statements of operations,
statements of changes in net assets and schedules of portfolio investments
(indicating their market values) for each One Group Fund for the year ended
June 30, 1997, such statements and schedules having been audited by Coopers &
Xxxxxxx L.L.P., independent accountants to One Group, have been furnished
to Marquis. Unaudited statements of assets and liabilities, statements of
operations, statements of changes in net assets and schedules of portfolio
investments (indicating their market values) for each One Group Fund as of
December 31, 1997 have also been furnished to Marquis. Such statements of
assets and liabilities and schedules fairly present the financial position of
the One Group Funds as of their respective dates, and said statements of
operations and changes in net assets fairly reflect the results of its
operations and changes in financial position for the periods covered thereby
in conformity with generally accepted accounting principles.
(d) The prospectuses of each One Group Fund dated November 1, 1997,
(collectively, the "One Group Prospectuses"), and the Statement of Additional
Information for the One Group Funds, dated November 1, 1997, and on file with
the Commission, which have been previously furnished to Marquis, did not as of
their dates and do not as of the date hereof contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
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(e) There are no material legal, administrative or other proceedings
pending or, to the knowledge of One Group or any One Group Fund, threatened
against One Group or any One Group Fund which assert liability on the part of
One Group or any One Group Fund.
(f) There are no material contracts outstanding to which One Group or any
One Group Fund is a party, other than as disclosed in the One Group Prospectuses
and the corresponding Statement of Additional Information or in the Registration
Statement and the Proxy Statement.
(g) Neither One Group nor any One Group Fund has any known liabilities of
a material nature, contingent or otherwise, other than those shown on its
statement of assets and liabilities as of December 31, 1997 referred to above
and those incurred in the ordinary course of the business of One Group as an
investment company or any One Group Fund since such date. Prior to the Exchange
Date, One Group will advise Marquis of all known material liabilities,
contingent or otherwise, incurred by it and each One Group Fund subsequent to
December 31, 1997, whether or not incurred in the ordinary course of business.
(h) Each One Group Fund has filed or will file all federal and state tax
returns which, to the knowledge of One Group's officers, are required to be
filed by each One Group Fund and has paid or will pay all federal and state
taxes shown to be due on said returns or on any assessments received by each One
Group Fund. All tax liabilities of each One Group Fund have been adequately
provided for on its books, and no tax deficiency or liability of any One Group
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 One Group or any One Group Fund of
the transactions contemplated by
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this Agreement, except such as may be required under the 1933 Act, the 1934 Act,
the 1940 Act, state securities or Blue Sky laws or the H-S-R Act.
(j) As of both the Valuation Time and the Exchange Date and otherwise as
described in Section 2 (i), One Group on behalf of each One Group Fund will have
full right, power and authority to purchase the Investments and any other assets
and assume the liabilities of each Marquis Fund to be transferred to the
corresponding One Group Fund pursuant to this Agreement.
(k) The Registration Statement, the Prospectus and the Proxy Statement, on
the effective date of the Registration Statement and insofar as they relate to
One Group and the One Group 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 8(a) and at the Exchange Date, the
Prospectus, as amended or supplemented by any amendments or supplements filed
with the Commission by One Group or any One Group 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 Registration
Statement, the Prospectus or the Proxy Statement made in reliance upon and in
conformity with information furnished by Marquis or any Marquis Fund for use in
the Registration Statement, the Prospectus or the Proxy Statement.
(l) Shares to be issued to each Marquis Fund have been duly authorized
and, when issued and delivered pursuant to this Agreement and the Prospectus,
will be legally and validly issued and
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will be fully paid and nonassessable by One Group and no shareholder of One
Group will have any preemptive right of subscription or purchase in respect
thereof.
(m) The issuance of Shares pursuant to this Agreement will be in
compliance with all applicable federal and state securities laws.
(n) Each One Group Fund is qualified and will at all times through the
Exchange Date qualify for taxation as a "regulated investment company" under
Sections 851 and 852 of the Code.
3. REORGANIZATION. (a) Subject to the requisite shareholder approval as
described in Section 8(a) and to the other terms and conditions contained herein
(including each Marquis Fund's obligation to distribute to its respective
shareholders all of its investment company taxable income and net capital gain
as described in Section 9(k) hereof ), Marquis and each Marquis Fund agree to
sell, assign, convey, transfer and deliver to the corresponding One Group Fund,
and One Group and each One Group Fund agree to acquire from the corresponding
Marquis Fund, on the Exchange Date all of the Investments and all of the cash
and other assets of each Marquis Fund in exchange for that number of Shares of
the corresponding One Group Fund provided for in Section 4 and the assumption by
the corresponding One Group Fund of all the liabilities of the Marquis Fund.
Pursuant to this Agreement, each Marquis Fund will, as soon as practicable after
the Exchange Date, distribute in liquidation all of the Shares received by it to
its shareholders in exchange for their shares of beneficial interest of such
Marquis Fund.
(b) Marquis, on behalf of each Marquis Fund, will pay or cause to be paid
to the corresponding One Group Fund any interest and cash dividends received by
it on or after the Exchange Date with respect to the Investments transferred to
the One Group Funds hereunder. Marquis, on behalf of each Marquis Fund, will
transfer to the corresponding One Group Fund any
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rights, stock dividends or other securities received by Marquis or any Marquis
Fund after the Exchange Date as stock dividends or other distributions on or
with respect to the Investments transferred, which rights, stock dividends and
other securities shall be deemed included in the assets transferred to each One
Group Fund at the Exchange Date and shall not be separately valued, in which
case any such distribution that remains unpaid as of the Exchange Date shall be
included in the determination of the value of the assets of the Marquis Fund
acquired by the corresponding One Group Fund.
4. EXCHANGE DATE; VALUATION TIME. On the Exchange Date, One Group will
deliver to Marquis a number of Shares having an aggregate net asset value equal
to the value of the assets of the corresponding Marquis Fund acquired by each
One Group Fund, less the value of the liabilities of such Marquis Fund assumed,
determined as hereafter provided in this Section 4.
(a) Subject to Section 4(d) hereof, the value of each Marquis Fund's net
assets will be computed as of the Valuation Time using the valuation procedures
for the corresponding One Group Fund as set forth in the One Group Prospectus
for the particular One Group Fund.
(b) Subject to Section 4(d) hereof, the net asset value of a share of each
One Group Fund will be determined to the nearest full cent as of the Valuation
Time, using the valuation procedures set forth in the One Group Prospectus for
the particular One Group Fund.
(c) Subject to Section 4(d), the Valuation Time shall be 4:00 p.m. Eastern
Standard time on August 7, 1998 or such earlier or later day as may be mutually
agreed upon in writing by the parties hereto (the "Valuation Time").
(d) No formula will be used to adjust the net asset value of any Marquis
Fund or One Group Fund to take into account differences in realized and
unrealized gains and losses.
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(e) Each One Group Fund shall issue its Shares to the corresponding
Marquis Fund on one share deposit receipt registered in the name of the
corresponding Marquis Fund. Each Marquis Fund shall distribute in liquidation
the Shares received by it hereunder pro rata to its shareholders of each class
of shares by redelivering such share deposit receipt to One Group's transfer
agent which will as soon as practicable set up open accounts for each Marquis
Fund shareholder in accordance with written instructions furnished by Marquis.
(f) Each One Group Fund shall assume all liabilities of the corresponding
Marquis Fund, whether accrued or contingent, in connection with the acquisition
of assets and subsequent dissolution of the corresponding Marquis Fund or
otherwise, except that recourse for assumed liabilities relating to a particular
Marquis Fund will be limited to the corresponding One Group Fund.
5. EXPENSES, FEES, ETC. (a) Subject to subsections 5(b) through 5
(e), all fees and expenses, including accounting expenses, portfolio transfer
taxes (if any) or other similar expenses incurred in connection with the
consummation by One Group and Marquis of the transactions contemplated by
this Agreement will be paid by the party directly incurring such fees and
expenses, except that the costs of proxy materials and proxy solicitation,
including legal expenses, will be borne by Banc One Investment Advisors
Corporation; PROVIDED, HOWEVER, that such expenses will in any event be paid
by the party directly incurring such expenses if and to the extent that the
payment by the other party of such expenses would result in the
disqualification of any One Group Fund or any Marquis Fund, as the case may
be, as a "regulated investment company" within the meaning of Section 851 of
the Code.
(b) In the event the transactions contemplated by this Agreement are not
consummated by reason of Marquis being either unwilling or unable to go forward
(other than by reason of the nonfulfillment or failure of any condition to
Marquis's obligations referred to in Section 8(a) or
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Section 10) Marquis shall pay directly all reasonable fees and expenses incurred
by One Group in connection with such transactions, including, without
limitation, legal, accounting and filing fees.
(c) In the event the transactions contemplated by this Agreement are not
consummated by reason of One Group being either unwilling or unable to go
forward (other than by reason of the nonfulfillment or failure of any condition
to One Group's obligations referred to in Section 8(a) or Section 9), One Group
shall pay directly all reasonable fees and expenses incurred by Marquis in
connection with such transactions, including without limitation legal,
accounting and filing fees.
(d) In the event the transactions contemplated by this Agreement are not
consummated for any reason other than (i) One Group or Marquis being either
unwilling or unable to go forward or (ii) the nonfulfillment or failure of any
condition to Marquis or One Group's obligations referred to in Section 8(a),
Section 9 or Section 10 of this Agreement, then each of Marquis and One Group
shall bear the expenses it has actually incurred in connection with such
transactions.
(e) Notwithstanding any other provisions of this Agreement, if for any
reason the transactions contemplated by this Agreement are not consummated, no
party shall be liable to the other party for any damages resulting therefrom,
including without limitation consequential damages, except as specifically set
forth above.
6. PERMITTED ASSETS. One Group agrees to advise Marquis promptly if at
any time prior to the Exchange Date the assets of any Marquis Fund include any
assets that the corresponding One Group Fund is not permitted, or reasonably
believes to be unsuitable for it, to acquire, including without limitation any
security that, prior to its acquisition by any Marquis Fund, One Group has
informed Marquis is unsuitable for the corresponding One Group Fund to acquire.
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7. EXCHANGE DATE. Delivery of the assets of the Marquis Funds to be
transferred, assumption of the liabilities of the Marquis Funds to be assumed,
and the delivery of Shares to be issued shall be made at the offices of Banc One
Investment Advisors Corporation at 9:00 am. on August 10, 1998, or at such
other time and date agreed to by Marquis and One Group, the date and time upon
which such delivery is to take place being referred to herein as the "Exchange
Date."
8. SPECIAL MEETING OF SHAREHOLDERS; DISSOLUTION. (a) Marquis agrees to
call a special meeting of the shareholders of each Marquis Fund as soon as is
practicable after the effective date of the Registration Statement for the
purpose of considering the sale of all of the assets of each Marquis Fund to and
the assumption of all of the liabilities of each Marquis Fund by the
corresponding One Group Fund as herein provided, adopting this Agreement, and
authorizing the liquidation and dissolution of any Marquis Fund, and, except as
set forth in Section 13, it shall be a condition to the obligations of each of
the parties hereto that the holders of the shares of beneficial interest of each
Marquis Fund, and each class of shares of each Marquis Fund if such is required
under the 1940 Act, shall have approved this Agreement and the transactions
contemplated herein in the manner required by law and Marquis's Declaration of
Trust at such a meeting on or before the Valuation Time.
(b) Marquis and each Marquis Fund agree that the liquidation and
dissolution of each Marquis Fund will be effected in the manner provided in
Marquis's Declaration of Trust in accordance with applicable law, and that it
will not make any distributions of any Shares to the shareholders of a Marquis
Fund without first paying or adequately providing for the payment of all of such
Marquis Fund's known debts, obligations and liabilities.
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(c) Each of One Group and Marquis will cooperate with the other, and each
will furnish to the other the information relating to itself required by the
1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder
to be set forth in the Registration Statement, including the Prospectus and the
Proxy Statement.
9. CONDITIONS TO ONE GROUP'S OBLIGATIONS. The obligations of One Group
and each One Group Fund hereunder shall be subject to the following conditions:
(a) That this Agreement shall have been adopted and the transactions
contemplated hereby, including the liquidation and dissolution of the Marquis
Funds, shall have been approved as set forth in Section 8(a).
(b) Marquis shall have furnished to One Group a statement of each Marquis
Fund's assets and liabilities, with values determined as provided in Section 4
of this Agreement, together with a list of Investments with their respective tax
costs, all as of the Valuation Time, certified on Marquis's behalf by its
President (or any Vice President) and Treasurer, and a certificate of both such
officers, dated the Exchange Date, to the effect that as of the Valuation Time
and as of the Exchange Date there has been no material adverse change in the
financial position of any Marquis Fund since March 31, 1998, other than changes
in the Investments since that date or changes in the market value of the
Investments, or changes due to net redemptions of shares of the Marquis Funds,
dividends paid or losses from operations.
(c) As of the Valuation Time and as of the Exchange Date, all
representations and warranties of Marquis and each Marquis Fund made in this
Agreement are true and correct in all material respects as if made at and as of
such dates, Marquis and each Marquis Fund has complied with this Agreement and
satisfied all the conditions on its part to be performed or satisfied at or
prior to each
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of such dates, and Marquis shall have furnished to One Group a statement, dated
the Exchange Date, signed by Marquis's President (or any Vice President) and
Treasurer certifying those facts as of such dates.
(d) Marquis shall have delivered to One Group a letter from SEI
Investments Company dated the Exchange Date stating that such firm prepared
the federal and state income tax returns of each Marquis Fund for the year
ended September 30, 1997.
(e) There shall not be any material litigation pending with respect to the
matters contemplated by this Agreement.
(f) One Group shall have received an opinion of Xxxxxx, Xxxxx & Xxxxxxx
LLP, in form reasonably satisfactory to One Group and dated the Exchange Date,
to the effect that (i) Marquis is a business trust duly established and validly
existing under the laws of the Commonwealth of Massachusetts, and neither
Marquis nor any Marquis Fund is, to the knowledge of such counsel, required to
qualify to do business as a foreign association in any jurisdiction, (ii) this
Agreement has been duly authorized, executed, and delivered by Marquis and,
assuming that the Registration Statement, the Prospectus and the Proxy Statement
comply with the 1933 Act, the 1934 Act and the 1940 Act and assuming due
authorization, execution and delivery of this Agreement by One Group, is a valid
and binding obligation of Marquis subject to applicable bankruptcy, insolvency,
fraudulent conveyance and similar laws or court decisions regarding enforcement
of creditor's rights generally, (iii) Marquis and each Marquis Fund has power to
sell, assign, convey, transfer and deliver the Investments and other assets
contemplated hereby and, upon consummation of the transactions contemplated
hereby in accordance with the terms of this Agreement, Marquis and each Marquis
Fund will have duly sold, assigned, conveyed, transferred and delivered such
Investments and other
- 18 -
assets to One Group, (iv) the execution and delivery of this Agreement did not,
and the consummation of the transactions contemplated hereby will not, violate
Marquis's Declaration of Trust, or Bylaws, as amended, or any provision of any
agreement known to such counsel to which Marquis or any Marquis Fund is a party
or by which it is bound, it being understood that with respect to investment
restrictions as contained in Marquis's Declaration of Trust, or Bylaws, or
then-current prospectus or statement of additional information of each Marquis
Fund, such counsel may rely upon a certificate of an officer of Marquis whose
responsibility it is to advise Marquis with respect to such matters and (v) to
the best of counsel's knowledge after reasonable inquiry, no consent, approval,
authorization or order of any court or governmental authority is required for
the consummation by Marquis or any Marquis Fund of the transactions contemplated
herein, except (a) such as have been obtained under the 1933 Act, the 1934 Act
and the 1940 Act and such as may be required under state securities or blue sky
laws and the H-S-R Act, and it being understood that such opinion shall not be
deemed to apply to One Group's compliance obligations under the 1933 Act, 1934
Act, 1940 Act, state securities or blue sky laws and H-S-R Act, and (b) where
the failure to obtain any such consent, approval, authorization or order would
not have a material adverse effect. For purposes of analysis regarding the
1940 Act, Xxxxxx, Xxxxx & Xxxxxxx LLP may assume as fact that the Marquis Funds
and the One Group Funds may be considered affiliated persons or affiliated
persons of an affiliated person solely by reason of having a common investment
adviser.
(g) One Group shall have received an opinion of Ropes & Xxxx, counsel to
One Group addressed to The One Group and each One Group Fund, in form reasonably
satisfactory to One Group and dated the Exchange Date, to the effect that for
Federal income tax purposes (i) no gain or loss will be recognized by any
Marquis Fund upon the transfer of the assets to the corresponding
- 19 -
One Group Fund in exchange for Shares and the assumption by such One Group Fund
of the liabilities of the Marquis Fund or upon the distribution of Shares by the
Marquis Fund to its shareholders in liquidation; (ii) no gain or loss will be
recognized by the shareholders of any Marquis Fund upon the exchange of their
shares for Shares; (iii) the basis of the Shares a Marquis shareholder receives
in connection with the transaction will be the same as the basis of his or her
Marquis Fund shares exchanged therefor; (iv) a Marquis shareholder's holding
period for his or her Shares will be determined by including the period for
which he or she held the Marquis Fund shares exchanged therefor, provided that
he or she held such Marquis Fund shares as capital assets; (v) no gain or loss
will be recognized by any One Group Fund upon the receipt of the assets of the
corresponding Marquis Fund in exchange for Shares and the assumption by the One
Group Fund of the liabilities of the corresponding Marquis Fund; (vi) the basis
in the hands of the One Group Fund of the assets of the corresponding Marquis
Fund transferred to the One Group Fund in the transaction will be the same as
the basis of the assets in the hands of the corresponding Marquis Fund
immediately prior to the transfer; and (vii) the holding periods of the assets
of the corresponding Marquis Fund in the hands of the One Group Fund will
include the periods for which such assets were held by the corresponding Marquis
Fund.
(h) The assets of each Marquis Fund to be acquired by the corresponding
One Group Fund will include no assets which the corresponding One Group Fund, by
reason of limitations contained in its Declaration of Trust or of investment
restrictions disclosed in the One Group Prospectuses in effect on the Exchange
Date, may not properly acquire.
(i) The Registration Statement shall have become effective under the 1933
Act and applicable blue sky provisions, and no stop order suspending such
effectiveness shall have been
- 20 -
instituted or, to the knowledge of One Group contemplated by the Commission and
or any state regulatory authority.
(j) All proceedings taken by Marquis in connection with the transactions
contemplated by this Agreement and all documents incidental thereto reasonably
shall be satisfactory in form and substance to One Group and Ropes & Xxxx.
(k) Prior to the Exchange Date, each Marquis 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 September 30, 1997 and the
short taxable year beginning on October 1, 1997 and ending on the Exchange Date
(computed without regard to any deduction for dividends paid), and all of its
net capital gain realized in its taxable year ended September 30, 1997 and the
short taxable year beginning on October 1, 1997 and ending on the Exchange Date
(after reduction for any capital loss carryover).
(l) Marquis shall have furnished to One Group a certificate, signed by the
President (or any Vice President) and the Treasurer of Marquis, as to the tax
cost to One Group of the securities delivered to One Group pursuant to this
Agreement, together with any such other evidence as to such tax cost as One
Group may reasonably request.
(m) Marquis's custodian shall have delivered to One Group a certificate
identifying all of the assets of each Marquis Fund held by such custodian as of
the Valuation Time.
(n) Marquis's transfer agent shall have provided to One Group (i) the
originals or true copies of all of the records of each Marquis Fund in the
possession of such transfer agent as of the Exchange Date, (ii) a certificate
setting forth the number of shares of each class of Marquis Fund outstanding as
of the Valuation Time and (iii) the name and address of each holder of record of
any
- 21 -
such shares of each Marquis Fund and the number of shares of each class held of
record by each such shareholder.
(o) All of the issued and outstanding shares of beneficial interest of
each Marquis Fund shall have been offered for sale and sold in conformity with
all applicable federal or state securities or blue sky laws and, to the extent
that any audit of the records of Marquis or any Marquis Fund or its transfer
agent by One Group or its agents shall have revealed otherwise, either (i)
Marquis and each Marquis Fund shall have taken all actions that in the
reasonable opinion of One Group or Ropes & Xxxx are necessary to remedy any
prior failure on the part of Marquis to have offered for sale and sold such
shares in conformity with such laws or (ii) Marquis shall have furnished (or
caused to be furnished) surety, or deposited (or caused to be deposited) assets
in escrow, for the benefit of One Group in amounts sufficient and upon terms
satisfactory, in the opinion of One Group or its counsel, to indemnify One Group
against any expense, loss, claim, damage or liability whatsoever that may be
asserted or threatened by reason of such failure on the part of Marquis to have
offered and sold such shares in conformity with such laws.
(p) Marquis shall have duly executed and delivered to One Group bills of
sale, assignments, certificates and other instruments of transfer ("Transfer
Documents") as One Group may deem necessary or desirable to transfer all of
Marquis's and each Marquis Fund's entire right, title and interest in and to the
Investments and all other assets of each Marquis Fund.
10. CONDITIONS TO MARQUIS'S OBLIGATIONS. The obligations of Marquis and
each Marquis Fund hereunder shall be subject to the following conditions:
- 22 -
(a) This Agreement shall have been adopted and the transactions
contemplated hereby, including the liquidation and dissolution of the Marquis
Funds, shall have been approved as described in Section 8(a).
(b) One Group shall have furnished to Marquis a Statement of each One
Group Fund's net assets, together with a list of portfolio holdings with values
determined as provided in Section 4, all as of the Valuation Time, certified on
One Group's behalf by its President (or any Vice President) and Treasurer (or
any Assistant Treasurer), and a certificate of both such officers, dated the
Exchange Date, to the effect that as of the Valuation Time and as of the
Exchange Date there has been no material adverse change in the financial
position of any One Group Fund since December 31, 1997, other than changes in
its portfolio securities since that date, changes in the market value of its
portfolio securities, changes due to net redemptions, dividends paid or losses
from operations.
(c) One Group shall have executed and delivered to Marquis an Assumption
of Liabilities Certificate and other instruments as Marquis may deem necessary
and desirable dated as of the Exchange Date pursuant to which each One Group
Fund will assume all of the liabilities of the corresponding Marquis Fund
existing at the Valuation Time in connection with the transactions contemplated
by this Agreement.
(d) As of the Valuation Time and as of the Exchange Date, all
representations and warranties of One Group and each One Group Fund made in this
Agreement are true and correct in all material respects as if made at and as of
such dates, One Group and each One Group Fund has complied with all of the
agreements and satisfied all of the conditions on its part to be performed or
satisfied at or prior to each of such dates, and One Group shall have furnished
to Marquis a statement, dated the
- 23 -
Exchange Date, signed by One Group's President (or any Vice President) and
Treasurer certifying those facts as of such dates.
(e) There shall not be any material litigation pending with respect to the
matters contemplated by this Agreement.
(f) Marquis shall have received an opinion of Ropes & Xxxx, in form
reasonably satisfactory to Marquis and dated the Exchange Date, to the effect
that (i) One Group is a business trust and validly existing in conformity with
the laws of The Commonwealth of Massachusetts, and, (to the knowledge of such
counsel), neither One Group nor any One Group Fund is required to qualify to do
business as a foreign association in any jurisdiction, (ii) the Shares to be
delivered to Marquis 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 One Group and no shareholder of One Group has any preemptive
right to subscription or purchase in respect thereof, (iii) this Agreement has
been duly authorized, executed and delivered by One Group and, assuming that the
Prospectus, the Registration Statement and the Proxy Statement comply with the
1933 Act, the 1934 Act and the 1940 Act and assuming due authorization,
execution and delivery of this Agreement by Marquis, is a valid and binding
obligation of One Group, subject to applicable bankruptcy, insolvency,
fraudulent conveyance and similar laws or court decisions regarding the
enforcement of credit rights generally, (iv) One Group and each One Group Fund
has the power to acquire and assume all of the liabilities of Marquis and the
Marquis Funds and, upon consummation of the transactions contemplated hereby in
accordance with the terms of this Agreement, One Group and each respective One
Group Fund shall have duly acquired and assumed such liabilities, and (v) the
execution and delivery of this Agreement did not, and the consummation of the
transactions contemplated hereby will not, violate
- 24 -
One Group's Declaration of Trust, as amended, or Code of Regulations, or any
provision of any agreement known to such counsel to which One Group or any One
Group Fund is a party or by which it is bound, it being understood that with
respect to investment restrictions as contained in One Group's Declaration of
Trust, as amended, Code of Regulations or then-current prospectus or statement
of additional information of each One Group Fund, such counsel may rely upon a
certificate of an officer of One Group whose responsibility it is to advise One
Group with respect to such matters, (vi) no consent, approval, authorization or
order of any court or governmental authority is required for the consummation by
One Group or any One Group Fund of the transactions contemplated herein, except
such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act and
such as may be required under state securities or blue sky laws and the H-S-R
Act and it being understood that such opinion shall not be deemed to apply to
Marquis's compliance obligations under the 1933 Act, 1934 Act, 1940 Act, state
securities or blue sky laws and the H-S-R Act; and (vii) the Registration
Statement has become effective under the 1933 Act, and to the best of the
knowledge of such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the 0000 Xxx.
(g) Marquis shall have received an opinion of Ropes & Xxxx addressed to
Marquis, and each Marquis Fund, and in a form reasonably satisfactory to Marquis
and dated the Exchange Date, with respect to the matters specified in Section
9(g) of this Agreement.
(h) All proceedings taken by One Group in connection with the transactions
contemplated by this Agreement and all documents incidental thereto reasonably
shall be satisfactory in form and substance to Marquis and Xxxxxx, Xxxxx &
Xxxxxxx LLP.
- 25 -
(i) The Registration Statement shall have become effective under the 1933
Act and applicable blue sky provisions, and no stop order suspending such
effectiveness shall have been instituted or, to the knowledge of Marquis,
contemplated by the Commission or any state regulatory authority.
11. INDEMNIFICATION. (a) The Marquis Funds will indemnify and hold
harmless One Group, its trustees and its officers (for purposes of this
subsection, the "Indemnified Parties") against any and all expenses, losses,
claims, damages and liabilities at any time imposed upon or reasonably incurred
by any one or more of the Indemnified Parties in connection with, arising out
of, or resulting from any claim, action, suit or proceeding in which any one or
more of the Indemnified Parties may be involved or with which any one or more of
the Indemnified Parties may be threatened by reason of any untrue statement or
alleged untrue statement of a material fact relating to Marquis or any Marquis
Fund contained in the Registration Statement, the Prospectus or the Proxy
Statement or any amendment or supplement to any of the foregoing, or arising out
of or based upon the omission or alleged omission to state in any of the
foregoing a material fact relating to Marquis or any Marquis Fund required to be
stated therein or necessary to make the statements relating to Marquis or any
Marquis Fund therein not misleading, including, without limitation, any amounts
paid by any one or more of the Indemnified Parties in a reasonable compromise or
settlement of any such claim, action, suit or proceeding or threatened claim,
action, suit or proceeding made with the prior consent of Marquis. The
Indemnified Parties will notify Marquis in writing within ten days after the
receipt by any one or more of the Indemnified Parties of any notice of legal
process or any suit brought against or claim made against any Indemnified Party
as to any matters covered by this Section 11(a). Marquis shall be entitled to
participate at its own expense in the defense of any claim, action, suit
- 26 -
or proceeding covered by this Section 11(a), or, if it so elects, to assume at
its expense by counsel satisfactory to the Indemnified Parties the defense of
any such claim, action, suit or proceeding, and if Marquis elects to assume such
defense, the Indemnified Parties shall be entitled to participate in the defense
of any such claim, action, suit or proceeding at their expense. The Marquis
Funds' obligation under this Section 11(a) to indemnify and hold harmless the
Indemnified Parties shall constitute a guarantee of payment so that the Marquis
Funds will pay in the first instance any expenses, losses, claims, damages and
liabilities required to be paid by it under this Section 11(a) without the
necessity of the Indemnified Parties first paying the same.
(b) The One Group Funds will indemnify and hold harmless Marquis, its
trustees and its officers (for purposes of this subsection, the "Indemnified
Parties") against any and all expenses, losses, claims, damages and liabilities
at any time imposed upon or reasonably incurred by any one or more of the
Indemnified Parties in connection with, arising out of, or resulting from any
claim, action, suit or proceeding in which any one or more of the Indemnified
Parties may be involved or with which any one or more of the Indemnified Parties
may be threatened by reason of any untrue statement or alleged untrue statement
of a material fact relating to One Group or any One Group Fund contained in the
Registration Statement, the Prospectus or the Proxy Statement, or any amendment
or supplement to any of the foregoing, or arising out of or based upon the
omission or alleged omission to state in any of the foregoing a material fact
relating to One Group or any One Group Fund required to be stated therein or
necessary to make the statements relating to One Group or any One Group Fund
therein not misleading, including, without limitation, any amounts paid by any
one or more of the Indemnified Parties in a reasonable compromise or settlement
of any such claim, action, suit or proceeding, or threatened claim, action, suit
or proceeding made with the prior
- 27 -
consent of One Group. The Indemnified Parties will notify One Group in writing
within ten days after the receipt by any one or more of the Indemnified Parties
of any notice of legal process or any suit brought against or claim made against
any Indemnified Party as to any matters covered by this Section 11(b). One
Group shall be entitled to participate at its own expense in the defense of any
claim, action, suit or proceeding covered by this Section 11(b), or, if it so
elects, to assume at its expense by counsel satisfactory to the Indemnified
Parties the defense of any such claim, action, suit or proceeding, and, if One
Group elects to assume such defense, the Indemnified Parties shall be entitled
to participate in the defense of any such claim, action, suit or proceeding at
their own expense. The One Group Funds' obligation under this Section 11(b) to
indemnify and hold harmless the Indemnified Parties shall constitute a guarantee
of payment so that the One Group Funds will pay in the first instance any
expenses, losses, claims, damages and liabilities required to be paid by it
under this Section 11(b) without the necessity of the Indemnified Parties first
paying the same.
12. NO BROKER, ETC. Each of One Group and Marquis represents that there
is no person who has dealt with it who by reason of such dealings is entitled to
any broker's or finder's or other similar fee or commission arising out of the
transactions contemplated by this Agreement.
13. TERMINATION. One Group and Marquis may, by mutual consent of their
respective trustees, terminate this Agreement, and One Group or Marquis, after
consultation with counsel and by consent of their respective trustees or an
officer authorized by such trustees, may waive any condition to their respective
obligations hereunder. If the transactions contemplated by this Agreement have
not been substantially completed by October 30, 1998, this Agreement shall
automatically terminate on that date unless a later date is agreed to by One
Group and Marquis.
- 28 -
Notwithstanding any other provision in this Agreement, in the event
shareholder approval of this Agreement and the transactions contemplated by this
Agreement is obtained with respect to only one or more Marquis Funds but not all
of the Marquis Funds, One Group and Marquis agree to consummate those
transactions with respect to those Marquis Funds whose shareholders have
approved this Agreement and those transactions.
In the event that shareholder approval of this Agreement and the
transactions contemplated by this Agreement is required, but is obtained with
respect to only one class of shares of a Marquis Fund, the transaction with
respect to that Marquis Fund will not be consummated unless and until
shareholder approval is obtained with respect to both classes.
14. RULE 145. Pursuant to Rule 145 under the 1933 Act, One Group will, in
connection with the issuance of any Shares to any person who at the time of the
transaction contemplated hereby is deemed to be an affiliate of a party to the
transaction pursuant to Rule 145 (c), cause to be affixed upon the certificates
issued to such person (if any) a legend as follows:
"THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT
TO THE ONE GROUP OR ITS PRINCIPAL UNDERWRITER UNLESS (i) A
REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR (ii) IN THE OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE ONE GROUP SUCH REGISTRATION IS NOT
REQUIRED."
- 29 -
and, further, One Group will issue stop transfer instructions to One Group's
transfer agent with respect to such shares. Marquis will provide One Group on
the Exchange Date with the name of any shareholder of the Marquis Funds who is
to the knowledge of Marquis an affiliate of Marquis on such date.
15. COVENANTS, ETC. DEEMED MATERIAL. All covenants, agreements,
representations and warranties made under this Agreement and any certificates
delivered pursuant to this Agreement shall be deemed to have been material and
relied upon by each of the parties, notwithstanding any investigation made by
them or on their behalf.
16. SOLE AGREEMENT; AMENDMENTS. This Agreement supersedes all previous
correspondence and oral communications between the parties regarding the subject
matter hereof, constitutes the only understanding with respect to such subject
matter, may not be changed except by a letter of agreement signed by each party
hereto, and shall be construed in accordance with and governed by the laws of
The Commonwealth of Massachusetts provided, however, that no such amendment may
have the effect of changing the provisions for determining the number or value
of shares to be paid to the Marquis Fund's shareholders under Sections I(b) and
II(4)(b) this Agreement to the material detriment of such shareholder's without
their further approval.
17. AGREEMENT AND DECLARATION OF TRUST. The names "Marquis Funds" and
"Trustees of Marquis Funds" refer respectively to Marquis and the Trustees, as
trustees but not individually or personally, acting from time to time under a
Declaration of Trust, to which reference is hereby made and a copy of which is
on file at the office of the Secretary of The Commonwealth of Massachusetts and
elsewhere as required by law, and to any and all amendments thereto so filed or
hereafter filed. The obligations of "Marquis Funds" entered into in the name or
on behalf thereof by any of the
- 30 -
Trustees, officers, employees or agents are made not individually, but in such
capacities, and are not binding upon any of the Trustees, officers, employees,
agents or shareholders of Marquis personally, but bind only the assets of
Marquis, and all persons dealing with any of the series or funds of Marquis,
such as Marquis Funds, must look solely to the assets of Marquis belonging to
such series or funds for the enforcement of any claims against Marquis.
The names "The One Group" and "Trustees of The One Group" refer
respectively to One Group and the Trustees, as trustees but not individually or
personally, acting from time to time under a Declaration of Trust dated May 23,
1985 to which reference is hereby made and a copy of which is on file at the
office of the Secretary of The Commonwealth of Massachusetts and elsewhere as
required by law, and to any and all amendments thereto so filed or hereafter
filed. The obligations of "The One Group" entered into in the name or on behalf
thereof by any of the Trustees, representatives or agents are made not
individually, but in such capacities, and are not binding upon any of the
Trustees, Shareholders or representatives of One Group personally, but bind only
the assets of One Group, and all persons dealing with any series or fund of One
Group, such as the One Group Funds, must look solely to the assets of One Group
belonging to such series for the enforcement of any claims against One Group.
- 31 -
This Agreement may be executed in any number of counter-parts, each of
which, when executed and delivered, shall be deemed to be an original.
MARQUIS FUNDS
By: /s/ Xxxx X. Xxxxx
-------------------------------
THE ONE GROUP
By: /s/ Xxxx X. Xxxxxx
-------------------------------
- 32 -
