ONE GROUP MUTUAL FUNDS
X.X. XXXXXX MUTUAL FUND TRUST
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (Agreement)
is made as of this 22nd day of November, 2004, by and
between One Group Mutual Funds, a Massachusetts business
trust (OGMF), with its principal place of business at
0000 Xxxxxxx Xxxxxxx, Xxxxx X-0, Xxxxxxxx, Xxxx 00000,
on behalf of its series, One Group U.S. Treasury
Securities Money Market Fund (Acquiring Fund), and X.X.
Xxxxxx Mutual Fund Trust, a Massachusetts business trust
(Acquired Fund Company), with its principal place of
business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
on behalf of its series, JPMorgan Treasury Plus Money
Market Fund (Acquired Fund).
WHEREAS, each of the Acquired Fund and the Acquiring Fund
is a series of an open-end, investment company of the
management type registered pursuant to the Investment
Company Act of 1940 (1940 Act);
WHEREAS, this Agreement is intended to be and is adopted
as a plan of reorganization and liquidation within the
meaning of Section 368(a)(1) of the United States Internal
Revenue Code of 1986, as amended (Code);
WHEREAS, the contemplated reorganization and liquidation
will consist of (1) the sale, assignment, conveyance,
transfer and delivery of all of the property and assets
of the Acquired Fund to the Acquiring Fund in exchange
solely for classes of shares of beneficial interest of
the Acquiring Fund (Acquiring Fund Shares) corresponding
to the classes of outstanding shares of beneficial interest
of the Acquired Fund (Acquired Fund Shares), as described
herein, (2) the assumption by the Acquiring Fund of all
liabilities of the Acquired Fund, and (3) the distribution
of the Acquiring Fund Shares to the shareholders of the
Acquired Fund in complete liquidation of the Acquired
Fund, as provided herein (Reorganization), all upon
the terms and conditions hereinafter set forth in this
Agreement;
that are substantially similar to the those in which
the Acquiring Fund is permitted to invest;
WHEREAS, the Trustees of OGMF have determined, with
respect to the Acquiring Fund, that the sale, assignment,
conveyance, transfer and delivery of all of the property
and assets of the Acquired Fund for Acquiring Fund Shares
and the assumption of all liabilities of the Acquired Fund
by the Acquiring Fund is in the best interests of the
Acquiring Fund and that the interests of the existing
shareholders of the Acquiring Fund would
not be diluted as a result of this transaction; and
WHEREAS, the Trustees of Acquired Fund Company have
determined, with respect to the Acquired Fund, that
the sale, assignment, conveyance, transfer
and delivery of all of the property and assets of the
Acquired Fund for Acquiring Fund
Shares and the assumption of all liabilities of the
Acquired Fund by the Acquiring Fund
is in the best interests of the Acquired Fund and that
the interests of the existing
shareholders of the Acquired Fund would not be diluted
as a result of this transaction;
NOW, THEREFORE, in consideration of the premises and
of the covenants and agreements hereinafter set forth,
the parties hereto covenant
and agree as follows:
1. TRANSFER OF ASSETS OF THE ACQUIRED FUND TO THE
ACQUIRING FUND IN EXCHANGE FOR ACQUIRING FUND SHARES,
THE ASSUMPTION OF ALL ACQUIRED FUND
LIABILITIES AND THE LIQUIDATION OF THE ACQUIRED FUND
1.1. Subject to requisite approvals and the other
terms and conditions herein set forth and on the basis
of the representations and warranties
contained herein, Acquired Fund Company, on behalf of
the Acquired Fund, agrees to sell,
assign, convey, transfer and deliver all of its property
and assets, as set forth in paragraph
1.2, to the Acquiring Fund, and OGMF, on behalf of the
Acquiring Fund, agrees in exchange
therefor: (a) to deliver to the Acquired Fund the number
of full and fractional Acquiring
Fund Shares corresponding to each class of the Acquired
Fund Shares as of the time and date
set forth in paragraph 3.1, determined by dividing the
value of the Acquired Funds net
assets with respect to each class of the Acquired
Fund (computed in the manner and as
of the time and date set forth in paragraph 2.1)
by the net asset value of one share of
the corresponding class of Acquiring Fund
Shares (computed in the manner and as of the time and
date set forth in paragraph 2.2); and (b) to assume
all liabilities of the Acquired Fund, as
set forth in paragraph 1.3. Such transactions shall
take place on the date of the
closing provided for in paragraph 3.1 (Closing Date).
For purposes of this Agreement,
the Agency Class shares of the Acquired Fund correspond
to the Agency Class shares of the
Acquiring Fund, the Institutional Class shares of
the Acquired Fund correspond to the
Institutional Class shares of the Acquiring Fund, the
Xxxxxx Class shares of the Acquired Fund
correspond to the Xxxxxx Class shares of the Acquiring
Fund, the Premier Class shares of the
Acquired Fund correspond to the Premier Class shares of
the Acquiring Fund, the Reserve Class
shares of the Acquired Fund correspond to the Class A
shares (to be renamed Reserve Class
shares) of the Acquiring Fund, and the term Acquiring
Fund Shares should be read to include
each such class of shares of the Acquiring Fund.
1.2. The property and assets of Acquired Fund Company
attributable to the Acquired Fund and to be sold, assigned,
conveyed, transferred and
delivered to and acquired by OGMF, on behalf of the
Acquiring Fund, shall consist of all assets
and property, including, without limitation, all rights,
cash, securities, commodities
and futures interests and dividends or interests
receivable that are owned by the Acquired
Fund and any deferred or prepaid expenses shown as an
asset on the books of the Acquired
Fund on the Valuation Date as defined in paragraph 2.1
(collectively, Assets).
The Acquired Fund will sell, assign, convey, transfer
and deliver to the Acquiring Fund
any rights, stock dividends, or other securities received
by the Acquired Fund after the
Closing Date as stock dividends or other distributions
on or with respect to the property
and assets transferred, which rights, stock dividends,
and other securities shall be deemed
included in the property and assets transferred to the
Acquiring Fund at the Closing
Date and shall not be separately valued, in which case
any such distribution that remains
unpaid as of the Closing Date shall be included in the
determination of the value of
the assets of the Acquired Fund acquired by the
Acquiring Fund.
1.3. The Acquired Fund will make reasonable efforts
to discharge all of its known liabilities and obligations
prior to the Valuation
Date. OGMF, on behalf of the Acquiring Fund, shall assume
all of the liabilities of the
Acquired Fund, whether accrued or contingent, known or
unknown, existing at the Valuation
Date (collectively, Liabilities). On or as soon as
practicable prior to the Closing Date,
the Acquired Fund will declare and pay to its shareholders
of record one or more dividends
and/or other distributions so that it will have distributed
substantially all (and in no
event less than 98%) of its investment company taxable
income (computed without regard to any
deduction for dividends paid) and realized net capital
gain, if any, for the current
taxable year through the Closing Date.
1.4. Immediately following the actions contemplated
by paragraph 1.1, Acquired Fund Company shall take such
actions necessary to complete the
liquidation of the Acquired Fund. To complete the
liquidation, Acquired Fund Company, on
behalf of the Acquired Fund, shall (a) distribute to its
shareholders of record with respect
to each class of Acquired Fund Shares as of the Closing
Date, as defined in paragraph 3.1
(Acquired Fund Shareholders), on a pro rata basis within
that class, the Acquiring Fund Shares
of the corresponding class received by Acquired Fund Company,
on behalf of the Acquired Fund,
pursuant to paragraph 1.1 and (b) completely liquidate.
Such liquidation shall be
accomplished, with respect to each class of Acquired
Fund Shares, by the transfer of the
corresponding Acquiring Fund Shares then credited to
the account of the Acquired Fund on
the books of the Acquiring Fund to open accounts on
the share records of the Acquiring Fund
in the names of the Acquired Fund Shareholders. The
aggregate net asset value of each
class of Acquiring Fund Shares to be so credited to
the corresponding class of Acquired Fund
Shareholders shall, with respect to each class, be
equal to the aggregate net asset value
of the Acquired Fund Shares of the corresponding class
owned by Acquired Fund Shareholders
on the Closing Date. All issued and outstanding Acquired
Fund Shares will be canceled on the
books of the Acquired Fund. The Acquiring Fund shall
not issue certificates representing
any class of Acquiring Fund Shares in connection with
such exchange.
1.5. Ownership of Acquiring Fund Shares will be shown
on
the books of the Acquiring Funds transfer agent.
1.6. Any reporting responsibility of the Acquired Fund,
including, but not limited to, the responsibility for
filing regulatory reports, tax returns,
or other documents with the Securities and Exchange
Commission (Commission), any state
securities commission, and any federal, state or local
tax authorities or any other
relevant regulatory authority, is and shall remain the
responsibility of the Acquired Fund.
2. VALUATION
2.1. The value of the Assets shall be determined as of the
time for calculation of the net asset value of the
Acquired Fund as set forth in its
then-current prospectus, and after the declaration of
any dividends by the Acquired Fund, on
the Closing Date (such time and date being hereinafter
called the Valuation Date), computed
using the valuation procedures set forth in the
then-current prospectus and statement of
additional information, as supplemented, with respect
to the Acquired Fund and
valuation procedures established by Acquired Fund Companys
Board of Trustees. All computations
of value shall be made by JPMorgan Chase Bank, N.A.,
in its capacity as
fund accountant for the Acquired Fund.
2.2. The net asset value per share of each class
of Acquiring Fund Shares shall be determined to the nearest
full cent as of the time
for calculation of the net asset value of the Acquiring Fund
as set forth in its then-current
prospectus on the Closing Date, using the valuation procedures
set forth in the then-current
prospectus and statement of additional information,
as supplemented, with respect
to the Acquiring Fund and valuation procedures
established by OGMFs Board of Trustees.
All computations of value shall be made by X.X.
Xxxxxx Investor Services Co., in its capacity
as fund accountant for the Acquiring Fund.
2.3. The number of Acquiring Fund Shares of each
class
to be issued in exchange for the Assets shall be
determined with respect to each such
class by dividing the value of the net assets with
respect to each class of Acquired Fund Shares,
determined using the same valuation procedures
referred to in paragraph 2.1,
by the net asset value of an Acquiring Fund Share
of the corresponding class, determined using
the same valuation procedures referred to in
paragraph 2.2.
3. CLOSING AND CLOSING DATE
3.1. The Closing Date shall be February 18, 2005,
or
such other date as the parties may agree. All acts
taking place at the closing of the
transactions provided for in this Agreement (Closing)
shall be deemed to take place
simultaneously as of the close of business on the
Closing Date unless otherwise agreed to by the
parties. The close of business on the Closing Date
shall be as of 5:00 p.m., Eastern Time.
The Closing shall be held at the offices of the Acquired
Fund Company or at such other
time and/or place as the parties may agree.
3.2. Acquired Fund Company shall direct JPMorgan Chase
Bank, N.A., as custodian for the Acquired Fund (Acquired
Fund Custodian), to deliver to
OGMF, at the Closing, a certificate of an authorized
officer stating that (i) the Assets of the Acquired Fund
have been delivered in proper form to
the Acquiring Fund within two business days prior to or on
the Closing Date, and (ii)
all necessary taxes in connection with the delivery of the
Assets of the Acquired Fund,
including all applicable federal and state stock transfer
stamps, if any, have been paid or
provision for payment has been made. The Acquired Funds
portfolio securities represented
by a certificate or other written instrument shall be presented
by the Acquired Fund
Custodian to JPMorgan Chase Bank, N.A., as the custodian
for the Acquiring Fund (Acquiring
Fund Custodian). Such presentation shall be made for
examination no later than five (5)
business days preceding the Closing Date, and such
certificates and other written instruments
shall be transferred and delivered by the Acquired Fund
as of the Closing Date for the
account of the Acquiring Fund duly endorsed in proper
form for transfer in such condition as to
constitute good delivery thereof. Each Acquired Funds
Assets held in book-entry form with
a securities depository, as defined in Rule 17f-4 of the
1940 Act, shall be transferred by
the Acquired Fund Custodian to the Acquiring Fund
Custodian for the account of the
corresponding Acquiring Fund as of the Closing Date by
book entry, in accordance with the
customary practices of the Acquired Fund Custodian and
of each such securities depository.
The cash to be transferred by the Acquired Fund shall be
delivered by wire transfer
of federal funds on the Closing Date.
3.3. Acquired Fund Company shall direct the transfer
agent for the Acquired Fund (Transfer Agent) to deliver
to OGMF at the Closing a certificate
of an authorized officer stating that its records contain
the name and address of each
Acquired Fund Shareholder and the number and percentage
ownership of each outstanding class
of Acquired Fund Shares owned by each such shareholder
immediately prior to the Closing.
The Acquiring Fund shall deliver to the Secretary
of the Acquired Fund a confirmation
evidencing that (a) the appropriate number of Acquiring
Fund Shares have been credited to the
Acquired Funds account on the books of the Acquiring
Fund pursuant to paragraph 1.1 prior to
the actions contemplated by paragraph 1.4 and (b) the
appropriate number of Acquiring Fund Shares have been
credited to the accounts of the Acquired
Fund Shareholders on the books of the Acquiring Fund
pursuant to paragraph 1.4. At the
Closing each party shall deliver to the other
party such bills of sale, checks, assignments,
share certificates, if any, receipts or other
documents as the other party or its
counsel may reasonably request.
3.4. In the event that at the Valuation Date
(with respect
to the Acquired Fund) or at the time of calculation
of the net asset value per share of
each class of Acquiring Fund Shares pursuant to
paragraph 2.2 (with respect to the Acquiring Fund)
(a) the New York Stock Exchange or another
primary trading market for portfolio
securities of the Acquiring Fund or the Acquired
Fund (each an Exchange) shall be closed to
trading or trading thereupon shall be restricted,
or (b) trading or the reporting of trading
on such Exchange or elsewhere shall be disrupted
so that accurate appraisal of the value
of the net assets of the Acquired Fund or the
Acquiring Fund is impracticable (in the judgment
of the Board of Trustees of OGMF with respect to
the Acquiring Fund and the Board of
Trustees of Acquired Fund Company with respect to
the Acquired Fund), the Closing Date shall
be postponed until the first Friday (that is also
a business day) after the day when
trading shall have been fully resumed and reporting
shall have been restored.
4. REPRESENTATIONS AND WARRANTIES
4.1. Except as has been fully disclosed to OGMF
in Schedule
4.1 to this Agreement, Acquired Fund Company,
on behalf of the Acquired Fund, represents
and warrants to OGMF as follows:
(a) The Acquired Fund is duly established as a
series
of Acquired Fund Company, which is a business
trust duly organized, existing and in good
standing under the laws of the Commonwealth of
Massachusetts, with power under its
Declaration of Trust Incorporation, as amended
(Charter), to own all of its Assets and to
carry on its business as it is being conducted
as of the date hereof. Acquired Fund
Company is not required to qualify as a foreign
trust or association in any jurisdiction,
except in any jurisdiction in which it has
so qualified or in which a failure to so qualify
would not have a material adverse effect.
Acquired Fund Company has all necessary federal, state
and local authorization to carry on its business
as now being conducted and to fulfill the
terms of this Agreement, except as set forth in
paragraph 4.1(c). The obligations of
Acquired Fund Company entered into in the name or
on behalf thereof by any of the Trustees,
officers, employees or agents are made not
individually, but in such capacities, and are not
binding upon any of the Trustees, officers,
employees, agents or shareholders of Acquired
Fund Company personally, but bind only the assets
of Acquired Fund Company and all persons
dealing with any series or fund of Acquired
Fund Company, such as the Acquiring Fund, must
look solely to the assets of Acquired Fund Company
belonging to such series or fund
for the enforcement of any claims against Acquired
Fund Company.
(b) Acquired Fund Company is a registered investment
company
classified as a management company of the open-end
type, and its registration with
the Commission as an investment company under the
1940 Act, and the registration of each
class of Acquired Fund Shares under the Securities
Act of 1933, as amended (1933 Act), is in
full force and effect.
(c) No consent, approval, authorization, or order
of any
court or governmental authority is required for
the consummation by the Acquired Fund of
the transactions contemplated herein, except such
as may be required under the 1933 Act, the
Securities Exchange Act of 1934, as amended (1934
Act), the 0000 Xxx, xxxxx securities laws and the
Xxxx-Xxxxx-Xxxxxx Act.
(d) The current prospectus and statement of
additional information of the Acquired Fund conforms
in all material respects to the applicable
requirements of the 1933 Act and the 1940 Act and
the rules and regulations of the
Commission thereunder and does not include any untrue
statement of a material fact or omit to state
any material fact required to be stated therein or
necessary to make the statements therein,
in light of the circumstances under which they were
made, not materially misleading.
(e) On the Closing Date, Acquired Fund Company,
on behalf of the Acquired Fund, will have good and
marketable title to the Assets and full
right, power, and authority to sell, assign, convey,
transfer and deliver such Assets
hereunder free of any liens or other encumbrances, and
upon delivery and payment for
the Assets, OGMF, on behalf of the Acquiring Fund, will
acquire good and marketable title thereto,
subject to no restrictions on the full transfer thereof,
including such restrictions as
might arise under the 1933 Act.
(f) The Acquired Fund is not engaged currently,
and the execution, delivery and performance of this
Agreement will not result, in (i) a material
violation of the Charter or by-laws of Acquired Fund
Company or of any agreement, indenture,
instrument, contract, lease or other undertaking to
which Acquired Fund Company, on behalf
of the Acquired Fund, is a party or by which it is
bound, or (ii) the acceleration of any
material obligation, or the imposition of any material
penalty, under any agreement, indenture,
instrument, contract, lease, judgment or decree
to which Acquired Fund Company, on behalf
of the Acquired Fund, is a party or by which it
is bound.
(g) All material contracts or other commitments
of the
Acquired Fund (other than this Agreement, contracts
listed in Schedule 4.1 and certain
investment contracts, including options, futures,
and forward contracts) will terminate
without liability to the Acquired Fund on or prior
to the Closing Date. Each contract
listed in Schedule 4.1 is a valid, binding and
enforceable obligation of each party thereto
(assuming due authorization, execution and delivery
by the other party thereto) and the assignment by
the Acquired Fund to the Acquiring
Fund of each such contract will not result in the
termination of such contract, any breach or
default thereunder or the imposition of any penalty
thereunder.
(h) No litigation or administrative proceeding or
investigation of or before any court or governmental
body is presently pending or, to Acquired
Fund Companys knowledge, threatened against Acquired
Fund Company, with respect to the
Acquired Fund or any of its properties or assets, that,
if adversely determined, would materially
and adversely affect its financial condition or the
conduct of its business. Acquired
Fund Company, on behalf of the Acquired Fund, knows
of no facts which might form the basis for
the institution of such proceedings and is 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 its business or its ability
to consummate the transactions herein
contemplated.
(i) The Statement of Assets and Liabilities,
Statements of Operations and Changes in Net Assets,
and Schedule of Investments of the Acquired
Fund as included in the most recent Annual Report to
Shareholders for the Acquired Fund
(the Annual Statement), have been audited by
PricewaterhouseCoopers LLP,
Independent Registered Public Accounting
Firm, and are in accordance with accounting
principles
generally accepted in the United States of
America (GAAP) consistently applied, and such
statements (true and correct copies of which
have been furnished to OGMF) present fairly,
in all material respects, the financial
condition of the Acquired Fund as of the date
of the Annual Statement in accordance with GAAP,
and there are no known contingent,
accrued or other liabilities of the Acquired
Fund required to be reflected on a balance sheet
(including the notes thereto) in accordance
with GAAP as of the date of the Annual Statement
that are not disclosed therein. The Statement
of Assets and Liabilities, Statements of
Operations and Changes in Net Assets, and
Schedule of Investments of the Acquired Fund, as
included or to be included in the most recent
Semi-Annual Report to shareholders for the
Acquired Fund since the date of the Annual
Statement (the Semi-Annual Statement) (unaudited),
are or will be when sent to the Acquired Fund
shareholders in the regular course in
accordance with GAAP consistently applied, and
such statements (true and correct copies of which
have been or will be furnished to OGMF) present
or will present fairly, in all material
respects, the financial condition of the Acquired
Fund as of the date of the Semi-Annual
Statement in accordance with GAAP, and all known
contingent, accrued or other liabilities
of the Acquired Fund required to be reflected on
a balance sheet (including the notes thereto)
in accordance with GAAP as of such date are or
will be disclosed therein.
(j) Since the date of the Annual Statement, there
has not been any material adverse change in the
Acquired Funds financial condition, assets,
liabilities or business, other than changes
occurring in the ordinary course of business,
or any incurrence by the Acquired Fund of
indebtedness, other than the incurrence of
indebtedness in the ordinary course of business
in accordance with the Acquired Funds investment
restrictions. For the purposes of
this subparagraph (j), a decline in net asset value
per share of Acquired Fund Shares due to
declines in market values of securities held by the
Acquired Fund, the discharge of Acquired
Fund liabilities, or the redemption of Acquired Fund
Shares by shareholders of the Acquired Fund shall
not constitute a material adverse change.
(k) On the Closing Date, all federal and other tax
returns,
dividend reporting forms, and other tax-related
reports of the Acquired Fund required by
law to have been filed by such date (including any
extensions) shall have been filed and
are or will be correct in all material respects, and
all federal and other taxes shown as
due or required to be shown as due on said returns and
reports shall have been paid or
provision shall have been made for the payment thereof
and, to the best of Acquired Fund Companys
knowledge, no such return is currently under audit and
no assessment has been asserted with
respect to such returns.
(l) For each taxable year of its operation (including
the taxable
year ending on the Closing Date), the Acquired Fund has
met (or will meet)
the requirements of Subchapter M of the Code for
qualification and treatment as a regulated
investment company, has elected to be treated
as such, and has been (or will be) eligible to and
has computed (or will compute) its federal income tax
under Section 852 of the Code,
and will have distributed substantially all of (i)
the excess of (x) its investment income
excludible from gross income under Section 103 of
the Code over (y) its deductions
disallowed under Sections 265 and 171 of the Code
(net tax-exempt income), (ii) its investment
company taxable income (computed without regard
to any deduction for dividends paid) and
(iii) any net capital gain (after reduction for
any capital loss carryover) (as defined in the
Code) that has accrued through the Closing Date,
and before the Closing Date will have
declared dividends intended to be sufficient to
distribute all of its net tax-exempt
income, investment company taxable income and net
capital gain for the period ending on the
Closing Date.
(m) All issued and outstanding Acquired Fund Shares
are, and on the Closing Date will be, duly authorized
and validly and legally issued and
outstanding, fully paid and non-assessable by
Acquired Fund Company and will have
been offered and sold in every state, territory
and the District of Columbia in compliance
in all material respects with applicable
registration requirements of all applicable
federal and state securities laws. All of the
issued and outstanding Acquired Fund Shares
will, at the time of Closing, be held by the
persons and in the amounts set forth in the
records of the Transfer Agent, on behalf of the
Acquired Fund, as provided in paragraph 3.3.
The Acquired Fund does not have outstanding any
options, warrants or other rights
to subscribe for or purchase any of the Acquired
Fund Shares, nor is there outstanding any
security convertible into any of the Acquired Fund
Shares. The Acquired Fund will review
its assets to ensure that at any time prior to the
Closing Date its assets do not include any assets
that the Acquiring 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 the
Acquired Fund, is unsuitable for the Acquiring
Fund to acquire.
(n) The execution, delivery and performance of this
Agreement, and the transactions contemplated herein,
have been duly authorized by all
necessary corporate action on the part of the Board of
Trustees of Acquired Fund Company,
and by the approval of the Acquired Funds shareholders,
as described in paragraph 8.1, and
this Agreement constitutes a valid and binding obligation
of Acquired Fund Company, on
behalf of the Acquired Fund, enforceable in accordance
with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization, moratorium
and other laws relating
to or affecting creditors rights and to general equity
principles.
(o) The combined proxy statement and prospectus
(Proxy Statement) to be included in the Registration
Statement (as defined in paragraph 5.6),
insofar as it relates to the Acquired Fund and the
Acquired Fund Company, will from the
effective date of the Registration Statement through
the date of the meeting of
shareholders of the Acquired Fund contemplated therein
and on the Closing Date (i) not contain
any untrue statement of a material fact or omit to
state a material fact required to be
stated therein or necessary to make the statements
therein, in light of the circumstances
under which such statements were made, not
materially misleading (provided that this
representation and warranty shall not apply
to statements in or omissions from the Proxy Statement
made in reliance upon and in conformity with
information that was furnished by the Acquiring
Fund for use therein) and (ii) 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. The
information to be furnished by the Acquired Fund
for use in registration statements and other
documents filed or to be filed with any federal,
state or local regulatory authority
(including the National Association of Securities
Dealers, Inc.), which may be necessary
in connection with the transactions contemplated
hereby, shall be accurate and complete
in all material respects and shall comply in all
material respects with federal securities
and other laws and regulations thereunder
applicable thereto.
4.2. Except as has been fully disclosed to
Acquired Fund Company in Schedule 4.2 to this
Agreement, OGMF, on behalf of the Acquiring Fund,
represents and warrants to Acquired Fund
Company as follows:
(a) The Acquiring Fund is duly established
as a series of OGMF, which is a business trust
duly organized, existing, and in good standing
under the laws of the Commonwealth of Massachusetts
with the power under OGMFs
Declaration of Trust to own all of its properties
and assets and to carry on its business as
contemplated by this Agreement. OGMF is not
required to qualify as a foreign trust or
association in any jurisdiction, except in any
jurisdiction in which it has so qualified or
in which a failure to so qualify would not have
a material adverse effect. OGMF has all
necessary federal, state and local authorization
to carry on its business as now being conducted
and to fulfill the terms of this Agreement,
except as set forth in paragraph 4.2(c).
The obligations of OGMF entered into in the name
or on behalf thereof by any of the Trustees, officers,
employees or agents are made
not individually, but in such capacities, and are not
binding upon any of the Trustees, officers,
employees, agents or shareholders of OGMF personally,
but bind only the assets
of OGMF and all persons dealing with any series or fund
of OGMF, such as the Acquired Fund, must
look solely to the assets of OGMF belonging to such
series or fund for the enforcement of any
claims against OGMF.
(b) OGMF is a registered investment company
classified as a management company of the open-end
type, and its registration with the
Commission as an investment company under the 1940
Act and the registration of each class o
f the Acquiring Fund Shares under the 1933 Act
will be in full force and effect as of the
Closing Date.
(c) No consent, approval, authorization, or
order of any court or governmental authority
is required for the consummation by the Acquiring
Fund of the transactions contemplated herein,
except such as may be required under the 1933
Act, the 1934 Act, the 1940 Act, state securities
laws and the Xxxx-Xxxxx-Xxxxxx Act.
(d) The current prospectus and statement of
additional information of the Acquiring Fund
conforms in all material respects to the applicable
requirements of the 1933 Act and the 1940 Act
and the rules and regulations of the
Commission thereunder and does not include any
untrue statement of a material fact or omit
to state any material fact required to be stated
therein or necessary to make the statements
therein, in light of the circumstances under
which they were made, not materially misleading.
(e) The Acquiring Fund is not engaged currently,
and the execution, delivery and performance of
this Agreement will not result, in (i) a
material violation of OGMFs Declaration of Trust
or Code of Regulations or of any agreement,
indenture, instrument, contract, lease or other
undertaking to which OGMF, on behalf of the
Acquiring Fund, is a party or by which it is bound
, or (ii) the acceleration of any material
obligation, or the imposition of any material
penalty, under any agreement,
indenture, instrument, contract, lease,
judgment or decree to which OGMF, on behalf of the
Acquiring Fund,
is a party or by which it is bound.
(f) Except as disclosed in Schedule 4.2 to this
Agreement, no litigation or administrative
proceeding or investigation of or before any court
or governmental body is presently pending or,
to OGMFs knowledge, threatened against OGMF,
with respect to the Acquiring Fund or any of
the Acquiring Funds properties or assets, that,
if adversely determined, would materially and
adversely affect the Acquiring Funds financial
condition or the conduct of its business. Except
as disclosed in Schedule 4.2 to this
Agreement, OGMF, on behalf of the Acquiring Fund,
knows of no facts which might form the basis for
the institution of such proceedings and
is 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 the Acquiring Funds
business or its ability to consummate the
transactions herein contemplated.
(g) The Statement of Assets and Liabilities,
Statements
of Operations and Changes in Net Assets, and
Schedule of Investments of the Acquiring
Fund at June 30, 2004, have been audited by
PricewaterhouseCoopers LLP, Independent
Registered Public Accounting Firm, and are in
accordance with accounting principles generally
accepted in the United States of
America (GAAP) consistently applied, and such
statements (true and correct copies of which have
been furnished to Acquired Fund Company)
present fairly, in all material respects, the
financial condition of the Acquiring Fund as of
such date in accordance with GAAP, and there are no
known contingent, accrued or other
liabilities of the Acquiring Fund required to be
reflected on a balance sheet (including the notes
thereto) in accordance with GAAP as of such date that
are not disclosed therein. The
Statement of Assets and Liabilities, Statements of
Operations and Changes in Net Assets,
and Schedule of Investments of the Acquiring Fund at
December 31, 2004, will be
when sent to Acquiring Fund shareholders in the regular
course in accordance with GAAP consistently
applied, and such statements (true and correct copies
of which will be furnished to
Acquired Fund Company) will present fairly, in all
material respects, the financial condition of
the Acquiring Fund as of such date in accordance with GAAP,
and all known contingent,
accrued or other liabilities of the Acquiring Fund
required to be reflected on a
balance sheet (including the notes thereto) in accordance
with GAAP as of such date will be
disclosed therein.
(h) Since June 30, 2004, there has not been any
material adverse change in the Acquiring Funds financial
condition, assets, liabilities
or business, other than changes occurring in the ordinary
course of business, or any incurrence
by the Acquiring Fund of indebtedness, other
than the incurrence of indebtedness in the ordinary
course of business in accordance with
the Acquiring Funds investment restrictions. For the
purposes of this subparagraph (h), a
decline in net asset value per share of Acquiring Fund
Shares due to declines in market va
lues of securities held by the Acquiring Fund, the
discharge of Acquiring Fund
liabilities,
or the redemption of Acquiring Fund Shares by
shareholders
of the Acquiring Fund
shall not constitute a material adverse change.
(i) On the Closing Date, all federal and other
tax returns, dividend reporting forms, and other
tax-related
reports of the Acquiring Fund
required by law to have been filed by such date
(including any
extensions) shall have been
filed and are or will be correct in all material
respects, and
all federal and other taxes
shown as due or required to be shown as due on said
returns
and reports shall have been
paid or provision shall have been made for the
payment thereof
and, to the best of OGMFs
knowledge, no such return is currently under
audit and no
assessment has been asserted with
respect to such returns.
(j) For each taxable year of its operation
(including the taxable year that includes the
Closing Date), the Acquiring Fund has met (or
will meet) the requirements of Subchapter M of
the Code for qualification and treatment as a
regulated investment company, has elected to be
treated as such, and has been (or will be)
eligible to and has computed (or will compute)
its federal income tax under Section 852 of the
Code, and will have distributed substantially
all of its (i) investment company
taxable income (computed without regard to any
deduction for dividends paid) and (ii) net
capital gain (after reduction for any capital
loss carryover) (as defined in the Code) for
periods ending prior to the Closing Date.
(k) All of the issued and outstanding Acquiring
Fund Shares are, and on the Closing Date will be,
duly authorized and validly and legally
issued and outstanding, fully paid and
non-assessable
by OGMF and will have been offered
and sold in every state, territory and the District
of Columbia in compliance in all material
respects with applicable registration
requirements of all applicable federal and state
securities laws. The Acquiring Fund does
not have outstanding any options, warrants or other
rights to subscribe for or purchase any
Acquiring Fund Shares, nor is there
outstanding any
security convertible into any Acquiring
Fund Shares. All of the Acquiring Fund
Shares to be
issued and delivered to the Acquired Fund,
for the account of the Acquired Fund
Shareholders, pursuant to this Agreement will
on the Closing Date have been duly authorized and,
when so issued and delivered, will be duly
and validly and legally issued Acquiring fund
Shares and be fully paid and non-assessable by
OGMF.
(l) The execution, delivery and performance of
this Agreement, and the transactions contemplated
herein, have been duly authorized
by all necessary action on the part of the Board
of Trustees of OGMF, and this Agreement
constitutes a valid and binding obligation of OGMF,
on behalf of the Acquiring Fund, enforceable
in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other laws
relating to or affecting creditors rights and
to general equity principles.
(m) The Proxy Statement to be included in the
Registration Statement, insofar as it relates
to the Acquiring Fund, OGMF and the Acquiring
Fund Shares, will from the effective date of
the Registration Statement through the date of
the meeting of shareholders of the Acquired Fund
contemplated therein and on the Closing
Date (i) not contain any untrue statement of a
material fact or omit to state a material fact
required to be stated therein or necessary
to make the statements therein, in light of the
circumstances under which such statements
were made, not materially misleading (provided that
this representation and warranty shall
not apply to statements in or omissions from the
Proxy
Statement made in reliance upon and
in conformity with information that was furnished
by
the Acquired Fund for use therein) and (ii
) 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. The information to be furnished
by the Acquiring Fund for use in registration
statements and other documents filed or to be
filed with any federal, state or local
regulatory authority (including the National
Association of Securities Dealers, Inc.),
which may be necessary in connection with the
trans
actions contemplated hereby, shall be accurate
and complete in all material respects and shall
comply in all material respects with federal
securities and other laws and regulations
thereunder applicable thereto.
5. COVENANTS
Acquired Fund Company, on behalf of the Acquired
Fund, and OGMF, on behalf of the Acquiring Fund,
respectively, hereby further covenant as
follows:
5.1. The Acquired Fund and the Acquiring Fund
each will operate its business in the ordinary
course between the date hereof and the Closing
Date, it being understood that such ordinary
course of business will include the declaration
and payment of customary dividends and
distributions
, and any other distribution that
may be advisable.
5.2. Acquired Fund Company will call a meeting
of the shareholders of the Acquired Fund to
consider and act upon this Agreement and to
take
all other action necessary to obtain approval
of the transactions contemplated herein.
5.3. The Acquired Fund covenants that the
Acquiring
Fund Shares to be issued hereunder are not
being acquired for the purpose of making any
distribution thereof, other than in accordance
with the terms of this Agreement.
5.4. The Acquired Fund will assist the Acquiring
Fund in obtaining such information as the Acquiring
Fund reasonably requests concerning the
beneficial ownership of the Acquired Fund Shares.
5.5. Subject to the provisions of this Agreement,
each of the Acquiring Fund and the Acquired Fund
covenant to take, or cause to be
taken, all action, and do or cause to be done,
all things reasonably necessary, proper or
advisable to consummate and make effective the
transactions contemplated by this Agreement.
5.6. OGMF shall prepare and file a Registration
Statement on Form N-14 in compliance with the 1933
Act, the 1934 Act and the 1940 Act and the rules
and regulations thereunder with respect
to the Reorganization (Registration Statement).
The Acquired Fund will provide to the
Acquiring Fund such information regarding the
Acquired Fund as may be reasonably necessary
for the preparation of the Registration Statement.
5.7. Each of the Acquiring Fund and the Acquired
Fund covenant to use its reasonable best efforts
to fulfill or obtain the fulfillment of
the conditions precedent to effect the
transactions
contemplated by this Agreement as
promptly as practicable.
5.8. Acquired Fund Company, on behalf of the
Acquired
Fund, covenants that it will, from time to time,
as
and when reasonably requested by OGMF,
execute and deliver or cause to be executed
and
delivered all such assignments and other
instruments and
will take or cause to be taken such
further action as OGMF, on behalf of the
Acquiring Fund,
may reasonably deem necessary or
desirable in order to vest in and
confirm (a) Acquired
Fund Companys title to and possession
of the Acquiring Fund Shares to be
delivered hereunder
and (b) OGMFs title to and possession
of all the Assets and otherwise to carry
out the intent
and purpose of this Agreement.
5.9. The Acquiring Fund covenants to use
all reasonable
efforts to obtain the approvals and
authorizations required
by the 1933 Act, the 1940 Act and
such of the state blue sky or securities
laws as may
be necessary in order to continue
its operations after the Closing Date.
5.10. The Acquiring Fund shall not change
its Declaration
of Trust, prospectus or statement of
additional
information prior to Closing so as to
restrict permitted investments for the Acquiring
Fund prior to Closing, except as required
by the Commission.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF
ACQUIRED FUND
The obligations of Acquired Fund Company,
on behalf of
the Acquired Fund, to consummate the
transactions provided
for herein shall be subject, at
Acquired Fund Companys election, to the
performance by OGMF
, on behalf of the Acquiring Fund,
of all the obligations to be performed by
it hereunder
on or before the Closing Date, and, in
addition thereto, the following further
conditions:
6.1. All representations and warranties
of OGMF, on
behalf of the Acquiring Fund, contained in
this Agreement shall be true and correct in
all
material respects as of the date hereof and,
except
as they may be affected by the transactions
contemplated by this Agreement, as of the
Closing
Date, with the same force and effect as
if made on and as of the Closing Date.
6.2. OGMF, on behalf of the Acquiring Fund,
shall
have
performed all of the covenants and complied
with all
of the provisions required by this A
greement to be performed or complied with by
OGMF, on
behalf of the Acquiring Fund, on or
before the Closing Date.
6.3. OGMF shall have executed and delivered an
assumption
of the Liabilities and all such other agreements
and instruments as Acquired Fund Company
may reasonably deem necessary or desirable
in order
to vest in and confirm (a) Acquired
Fund Companys title to and possession of the
Acquiring Fund Shares to be delivered hereunder
and (b) OGMFs assumption of all of the Liabilities
and otherwise to carry out the intent
and purpose of this Agreement.
6.4. OGMF, on behalf of the Acquiring Fund,
shall
have delivered to the Acquired Fund a
certificate
executed in the name of OGMF, on behalf
of the Acquiring Fund, by OGMFs President or
Vice
President and its Treasurer or
Assistant Treasurer, in a form reasonably
satisfactory
to Acquired Fund Company and dated as
of the Closing Date, as to the matters set
forth in
paragraphs 6.1 and 6.2 and as to such
other matters as Acquired Fund Company shall
reasonably
request.
6.5. The Acquired Fund and the Acquiring Fund
shall have agreed on the number of full and
fractional
Acquiring Fund Shares to be issued
in connection with the Reorganization after
such number
has been calculated in accordance
with paragraph 1.1.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF
ACQUIRING FUND
The obligations of OGMF, on behalf of the
Acquiring Fund, to consummate the transactions
provided
for herein shall be subject, at
OGMFs election, to the performance by Acquired
Fund Company,
on behalf of the Acquired Fund,
of all of the obligations to be performed by it
hereunder on or before the Closing Date
and, in addition thereto, the following further
conditions:
7.1. All representations and warranties of
Acquired Fund Company, on behalf of the
Acquired
Fund, contained in this Agreement shall
be true
and correct in all material respects as
of the date
hereof and, except as they may be affected
by the transactions contemplated by this
Agreement,
as of the Closing Date, with the same
force and effect as if made on and as of the
Closing Date.
7.2. Acquired Fund Company, on behalf of the
Acquired Fund, shall have performed all of the
covenants and complied with all of the
provisions
required by this Agreement to be performed or
complied with by Acquired Fund Company, on
behalf of the Acquired Fund, on or before the
Closing Date.
7.3. Acquired Fund Company shall have delivered
to the Acquiring Fund a statement of the
Assets and Liabilities, as of the Closing Date,
including a schedule of investments, certified
by the Treasurer of Acquired Fund
Company. Acquired Fund Company shall have
executed and delivered all such assignments
and other instruments of transfer as OGMF may
reasonably deem necessary or desirable in order
to vest in and confirm (a) Acquired Fund
Companys title to and possession of the Acquiring
Fund Shares to be delivered hereunder and (b)
OGMFs title to and possession of all the Assets
and otherwise to carry out the intent and
purpose of this Agreement.
7.4. Acquired Fund Company, on behalf of the
Acquired
Fund, shall have delivered to OGMF a certificate
executed in the name of Acquired Fund
Company, on behalf of the Acquired Fund, by
Acquired Fund Companys President or Vice President
and its Treasurer or Assistant Treasurer,
in a form reasonably satisfactory to OGMF and dated
as of the Closing Date, as to the
matters set forth in paragraphs 7.1 and 7.2 and as
to such other matters as OGMF shall r
easonably request.
7.5. The Acquired Fund and the Acquiring Fund
shall have agreed on the number of full and fractional
Acquiring Fund Shares to be issued
in co
nnection with the Reorganization after such
number has been calculated in accordance with p
aragraph 1.1.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF
ACQUIRING FUND AND ACQUIRED FUND
If any of the conditions set forth below have
not
been satisfied on or before the Closing Date
with respect to Acquired Fund Company, on
behalf of the Acquired Fund, or OGMF, on
behalf of
the Acquiring Fund, the other party to
this Agreement
shall be entitled, at its option, to
refuse to consummate the transactions
contemplated by this Agreement:
8.1. This Agreement and the transactions
contemplated
herein shall have been approved by the
requisite vote of
the holders of the outstanding shares of
the Acquired Fund
in accordance
with the provision of the Charter and by-laws
of Acquired Fund Company, applicable state
law and the 1940 Act, and
certified copies of the resolutions evidencing
such
approval shall have been delivered to the
Acquiring
Fund. Notwithstanding
anything herein to the contrary, neither
OGMF nor
Acquired Fund Company may waive the
condition set forth in this paragraph 8.1.
8.2. On the Closing Date no action, suit or
other
proceeding
shall be pending or, to OGMFs or to
Acquired Fund
Companys knowledge, threatened before any
court or governmental
agency in which it is sought to restrain or
prohibit
, or obtain damages or other relief in
connection with, this
Agreement or the transactions contemplated
herein.
8.3. All consents of other parties and
all other
consents, orders and permits of federal,
state and
local regulatory authorities deemed
necessary by OGMF or Acquired
Fund Company to permit consummation,
in all material
respects, of the transactions
contemplated hereby shall have been
obtained, except where failure to obtain
any such
consent, order or permit would not
involve a risk of
a material adverse effect on the assets
or properties
of the Acquiring Fund or the Acquired F
und, provided that either party
hereto may for itself waive any of such
conditions.
8.4. The Registration Statement shall
have become
effective under the 1933 Act and no stop
orders suspending
the effectiveness thereof shall have been
issued and, to the
best knowledge of the parties hereto, no
investigation
or proceeding for that purpose shall have
been instituted
or be pending,
threatened or contemplated under the
0000 Xxx.
8.5. The parties shall have received the
opinion of Dechert
LLP dated the Closing Date, substantially
to the effect that,
based upon certain facts, assumptions, and
representations
made by Acquired Fund Company, on behalf of
the Acquired Fund
, OGMF, on behalf of the Acquiring Fund, and
their respective
authorized officers, (i) the transaction
contemplated by this
Agreement will constitute a reorganization
within the meaning
of Section 368(a) of the Code, and the
Acquiring Fund and the
Acquired Fund will each be a party to a
reorganization within
the meaning of Section 368(b) of the Code; (ii)
no gain or loss
will be recognized by the Acquiring Fund upon
receipt of the
Assets in exchange for the Acquiring Fund Shares
and the assumption
by the Acquiring Fund of the Liabilities; (iii)
the basis
in the hands of the Acquiring Fund in the Assets
will be the same
as the basis of the Acquired Fund in the Assets
immediately prior
to the transfer thereof; (iv) the holding periods
of the Assets in the hands of the Acquiring Fund
will include the
periods during which the Assets were held by the
Acquired
Fund; (v) no gain or loss will be recognized by
the Acquired Fund
upon the transfer of the Assets to the Acquiring
Fund in
exchange for the Acquiring Fund Shares and the
assumption
by the Acquiring Fund of all of the Liabilities,
or upon the
distribution of the Acquiring Fund Shares by the
Acquired
Fund to its shareholders in liquidation; (vi) no
gain or
loss will
be recognized by the Acquired Fund shareholders upon
the exchange of their Acquired Fund Shares for the
Acquiring
Fund
Shares; (vii) the aggregate basis of the Acquiring
Fund Shares that each Acquired Fund shareholder r
eceives in
connection with
the transaction will be the same as the aggregate
basis of
his or her Acquired Fund Shares exchanged therefor;
(viii) an
Acquired Fund shareholders holding period for his or
her
Acquiring Fund Shares will be determined by including
the period for
which he or she held the Acquired Fund Shares exchange
d
therefore, provide that he or she held such
Acquired Fund
Shares as
capital assets; and (ix) the Acquiring Fund
will succeed
to, and take into account (subject to the conditions
and
limitations
specified in Sections 381, 382, 383, and 384
of the Code
and the Regulations thereunder) the items of the
Acquired Fund
described in Section 381(c) of the Code. The
opinion will
not address whether gain or loss will be recognized
with respect to any
contracts subject to Section 1256 of the Code
in connection
with the reorganization. The delivery of such
opinion is
conditioned upon receipt by Dechert LLP of repr
esentations it
shall request of OGMF and Acquired Fund Company.
Notwithstanding
anything herein to the contrary, neither OGMF
nor Acquired
Fund Company may waive the condition set forth in
this paragraph 8.5.
8.6. OGMF shall have received the opinion of
Xxxxxxxx &
Xxxxxxxx dated the Closing Date (subject to
customary
assumptions, qualifications and limitations
and in form
and substance
reasonably acceptable to OGMF) substantially
to the
effect
that, based upon certain facts and certifications
made
by Acquired
Fund Company, on behalf of the Acquired Fund,
and its
authorized officers, (a) Acquired Fund Company
is a business trust duly
organized and validly existing under the laws
of the
Commonwealth of Massachusetts and authorized to
exercise all
of the powers recited in its Charter under the
laws of
the Commonwealth of Massachusetts, and the Acquired
Fund is a
series of Acquired Fund Company; (b) assuming the
due
authorization, execution and deliver of this
Agreement by
OGMF on behalf of the Acquiring Fund, this
Agreement
constitutes a valid and legally binding obligation
of Acquired Fund
Company, on behalf of the Acquired Fund, enforceable
against
the Acquired Fund in accordance with its terms,
subject to
bankruptcy, insolvency, fraudulent transfer,
reorganization,
moratorium and similar laws of general
applicability relating
to or affecting creditors rights and to general
equity principles;
provided that such counsel shall be entitled
to
state that it expresses no opinion with respect
to the validity,
binding effect or enforceability of any
contractual provisions
purporting to provide indemnification of any person
for
any claims, damages, liabilities or expenses
which may be limited by
any applicable Federal or state securities
laws; (c)
all actions required to be taken by Acquired
Fund Company,
on behalf of the Acquired Fund, to authorize
the Agreement
and to effect the transactions contemplated
thereby have been
duly authorized by all necessary action on the
part of
Acquired Fund Company; (d) the execution and
delivery by Acquired Fund
Company of this Agreement did not, and the
performance by
Acquired Fund Company, on behalf of the A
cquired Fund, of its o
bligations under this Agreement will not,
violate Acquired
Fund Companys Charter or by-laws; provided,
however, that such
counsel shall be entitled to state that it
expresses no
opinion with respect to Federal or state
securities laws, other
antifraud laws and fraudulent transfer laws;
and provided,
further, that insofar as the performance by
Acquired Fund Company,
on behalf of the Acquired Fund, of its o
bligations under
this Agreement is concerned, such counsel shall
be entitled to
state that it expresses no opinion as to
bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium
and similar
laws of general applicability relating to or
affecting creditors
rights and to general equity principles; and
(e) to the
knowledge of such counsel, no consent, approval,
authorization
or order of any court or governmental authority
is required
for the consummation by Acquired Fund, on
behalf of the
Acquired Fund, of the transactions contemplated
by this Agreement,
except such as have been obtained under
the 1933 Act, the
1934 Act, the 1940 Act and state securities
laws. With respect to all
matters of Massachusetts law, such counsel
shall be entitled
to state that, with the approval of the Acquiring
Fund, they
have relied upon the opinion of Massachusetts
counsel, and that
its opinion is subject to the same assumptions,
qualifications
and limitations with respect to such matters
as are
contained in the opinion of Massachusetts
counsel. Such opinion
also shall include such other matters incident
to the
transactions contemplated by this Agreement
as the Acquiring Fund
may reasonably request.
8.7. Acquired Fund Company shall have received
the opinion of
Ropes & Xxxx LLP dated the Closing Date (subject
to customary
assumptions, qualifications and limitations
and in form and
substance reasonably acceptable to Acquired
Fund Company)
substantially to the effect that, based upon
certain facts and
certifications made by OGMF, on behalf of the
Acquiring Fund,
and its authorized officers, (a) OGMF is a
business trust duly
organized and validly existing under the laws
of the Commonwealth
of Massachusetts and authorized to exercise
all of
the powers recited in its Declaration of Trust
under the laws of
the Commonwealth of Massachusetts, and the
Acquiring Fund is
a series of OGMF; (b) the Acquiring
Fund Shares are duly authorized
and, upon delivery to Acquired Fund Company,
on behalf
of the Acquired Fund pursuant to this
Agreement, will be validly
issued, fully paid and non-assessable
by OGMF
, except to the extent that shareholders may
be held
personally liable for the obligations of
OGMF and the Acquiring
Fund under
the laws of the Commonwealth of Massachusetts
; (c) assuming the
due authorization, execution and deliver
of this Agreement
by Acquired Fund Company on behalf of the
Acquired Fund,
this Agreement constitutes a valid and
legally binding
obligation of OGMF, on behalf of the Acquiring
Fund, enforceable
against the Acquiring Fund in accordance
with its terms, subject
to bankruptcy, insolvency, fraudulent
transfer, reorganization,
moratorium and similar laws of general
applicability
relating to or affecting creditors rights
and to general
equity principles; provided that such counsel
shall be entitled
to state that it expresses no opinion with res
pect to the
validity, binding effect or enforceability
of any contractual
provisions
purporting to provide indemnification of
any person for any
claims, damages, liabilities or expenses
which may be limited
by any applicable Federal or state securities
laws; (d) all
actions required to be taken by OGMF, on
behalf of the Acquiring
Fund, to authorize the Agreement and to effect
the transactions
contemplated thereby have been duly
authorized by
all necessary action on the part of OGMF;
(e) the execution
and delivery by OGMF of this Agreement did
not, and the performance
by OGMF, on behalf of the Acquiring Fund,
of its obligations
under the Agreement will not, violate
OGMFs
Declaration of Trust or Code of Regulations;
provided,
however, that such counsel shall be
entitled to state that it expresses
no opinion with respect to Federal or state
securities
laws, other antifraud laws and fraudulent
transfer laws;
and provided,
further, that insofar as the performance
by OGMF, on behalf
of the Acquiring Fund, of its obligations
under the Agreement is
concerned, such counsel shall be entitled
to state that it
expresses no opinion as to bankruptcy,
insolvency, fraudulent
transfer, reorganization, moratorium and
similar laws of
general applicability relating to or
affecting creditors
rights and to general equity principles;
and (f) to the
knowledge of such counsel, no consent,
approval, authorization or order
of any court or governmental authority
is required for
the consummation by OGMF, on behalf of
the Acquiring Fund, of
the transactions contemplated by this
Agreement, except
such as have been obtained under the
1933 Act, the 1934 Act,
the
1940 Act and state securities laws.
Such opinion also
shall
include such other matters incident
to the transactions
contemplated
by this Agreement as the Acquired Fund may reasonably
request.
8.8. The Assets will include no assets which the
Acquiring Fund, by reason of limitations contained
in its Declaration of
Trust or of investment restrictions disclosed in
its current prospectus and statement of additional
information, as supplemented, in effect on the
Closing Date, may
not properly acquire.
9. INDEMNIFICATION
9.1. OGMF, out of the Acquiring Funds assets
and property
(including any amounts paid to the Acquiring
Fund pursuant
to any applicable liability insurance policies
or indemnification
agreements) agrees to indemnify and hold
harmless Acquired
Fund Company and its Trustees and officers
from and against
any
and all losses, claims, damages, liabilities
or expenses
(including, without limitation, the payment
of reasonable
legal fees and reasonable costs of investigation)
to which
the Acquired Fund may become subject, insofar
as such loss, claim,
damage, liability or expense (or actions
with respect
thereto) arises out of or is based on (a)
any breach by the Acquiring
Fund of any of its representations, warranties,
covenants
or agreements set forth in this Agreement or
(b) any act, error,
omission, neglect, misstatement, materially
misleading statement,
breach of duty or other act wrongfully done
or
attempted to be committed by OGMF or its
Trustees or officers
prior to the Closing Date, provided that
such indemnification by
OGMF (or the Acquiring Fund) is not (i)
in violation of any
applicable law or (ii) otherwise prohibited as
a result of
any applicable order or decree issued by any
governing regulatory
authority or court of competent jurisdiction.
9.2. Acquired Fund Company, out of the Acquired
Funds assets
and property including (including any amounts
paid to the
Acquired Fund pursuant to any applicable
liability insurance
policies or indemnification agreements) agrees to
indemnify
and hold harmless OGMF and its Trustees and
officers from and against
any and all losses, claims, damages, liabilities
or expenses
(including, without limitation, the payment of
reasonable
legal fees and reasonable costs of investigation)
to which
the Acquiring Fund may become subject, insofar
as such loss,
claim, damage, liability or expense (or actions
with respect
thereto) arises out of or is based on (a) any
breach by the
Acquired Fund of any of its representations,
warranties,
covenants or agreements set forth in this Agreement
or (b)
any act, error, omission, neglect, misstatement,
materially
misleading
statement, breach of duty or other act wrongfully
done or
attempted to be committed by Acquired Fund
Company or its
Trustees or officers prior to the Closing Date,
provided that
such indemnification by Acquired Fund Company
(or the Acquired
Fund) is not (i) in violation of any applicable
law or (ii)
otherwise prohibited as a result of any applicable
order or
decree issued by any governing regulatory
authority or court
of competent jurisdiction.
10. BROKERAGE FEES AND EXPENSES
10.1. OGMF, on behalf of the Acquiring Fund,
and Acquired
Fund Company, on behalf of the Acquired Fund,
represent and
warrant to each other that there are no brokers
or finders
entitled
to receive any payments in connection with the
transactions
provided for herein.
10.2. The expenses relating to the Reorganization
will be
borne by Banc One Investment Advisors Corporation
and X.X. Xxxxxx
Investment Management Inc. The costs of the
Reorganization
shall include, but not be limited to, costs
associated with
obtaining any necessary order of exemption from
the 1940 Act,
prepar
ation and filing of the Registration Statement
and printing and
distribution of the Proxy Statement, legal fees,
accounting fees, securities registration fees,
and expenses of
holding a shareholders meeting pursuant to
paragraph 5.2.
Notwithstanding any of the foregoing, expenses
will in any event
be paid by the party directly incurring such
expenses if and
to the extent that the payment by another person
of such expenses
would result in the disqualification of such party
as a regulated
investment company within the meaning of Section
851 of
the Code.
11. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
11.1. OGMF and Acquired Fund Company agree that
neither party has
made any representation, warranty or covenant,
on behalf of either
the Acquiring Fund or the Acquired Fund, respectively,
not
set forth herein and that this Agreement constitutes
the entire
agreement between the parties.
11.2. The representations, warranties and covenants
contained in
this Agreement or in any document delivered pursuant
hereto or in
connection herewith shall survive the consummation
of the t
ransactions contemplated hereunder. The covenants to
be performed
after the Closing and the obligations of each of the
Acquired Fund
and Acquiring Fund in Section 9 shall survive the
Closing.
12. TERMINATION
This Agreement may be terminated and the transactions
contemplated
hereby may be abandoned by resolution of the either
the Board of
Trustees of OGMF or the Board of Trustees of Acquired
Fund
Company, at any time prior to the Closing Date, if
circumstances
should develop that, in the opinion of that Board,
make
proceeding with the Agreement inadvisable with
respect to the
Acquiring Fund or the Acquired Fund, respectively.
13. AMENDMENTS
This Agreement may be amended, modified or supplemented
in such
manner
as may be deemed necessary or advisable by the
authorized officers
of Acquired Fund Company and OGMF.
14. NOTICES
Any notice, report, statement or demand required
or permitted by any
provisions of this Agreement shall be in writing
and shall be given
by facsimile, electronic delivery (i.e., e-mail)
personal service or
prepaid or certified mail addressed as follows:
If to OGMF, at the address of OGMF set forth in
the preamble to this
Agreement, in each case to the attention of Xxxxx
X. Xxxxxxx and with
a copy to Ropes & Xxxx LLP, 000 00xx Xxxxxx, XX,
Xxxxxxxxxx, XX 00000, attn.: Xxxx X. Xxxxxx;
If to Acquired Fund Company, at the address of
Acquired Fund Company
set forth in the preamble to this Agreement, in each
case to the attention
of Xxxx X. Xxxxxxx and with a copy to Xxxxxxxx
& Xxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000,
attn.: Xxxx X.
Xxxxxxxxxxx, Xx.
15. HEADINGS; GOVERNING LAW; SEVERABILITY; ASSIGNMENT;
LIMITATION OF
LIABILITY; RULE 145
15.1. The Article and paragraph headings contained
in this Agreement
are for reference purposes only and shall not affect
in any way the
meaning or interpretation of this Agreement.
15.2. This Agreement shall be governed by and
construed in accordance
with the laws of The Commonwealth of Massachusetts
without regard to
its principles of conflicts of laws.
15.3. This Agreement shall bind and inure to the benefit
of the parties
hereto and their respective successors and assigns,
but no assignment
or transfer hereof or of any rights or obligations
hereunder shall be made by any party without the
written consent of
the other party. Nothing herein expressed or implied
is
intended or shall be construed to confer upon or give
any person, firm
or corporation, other than the parties hereto and their
respective successors and assigns, any rights or
remedies under or by
reason of this Agreement.
15.4. Pursuant to Rule 145 under the 1933 Act, the
Acquired Fund will,
in connection with the issuance of any Acquiring Fund
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 ONE GROUP U.S. TREASURY SECURITIES MONEY
MARKET FUND 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 ONE GROUP U.S.
TREASURY
SECURITIES MONEY MARKET FUND, SUCH REGISTRATION IS
NOT REQUIRED;
[Remainder of Page Intentionally Left Blank]
and, further, the Acquired Fund will issue stop
transfer
instructions to its transfer agent with respect
to such Acquired Fund Shares.
IN WITNESS WHEREOF, each of the parties hereto
has caused
this Agreement to be executed by its President
or any Vice President.
ONE GROUP MUTUAL FUNDS,
on behalf of its series,
One Group U.S. Treasury Securities Money Market
Fund
X.X. XXXXXX MUTUAL FUND TRUST
on behalf of its series,
JPMorgan Treasury Plus Money Market Fund
By:
Name:
Title:
By:
Name: :
Title:
With respect to paragraph 10.2 of this Agreement,
Accepted and Acknowledged by:
X.X. Xxxxxx Investment Management Inc.
By:
Name:
Title:
Banc One Investment Advisors Corporation
By:
Name:
Title:
Schedule 4.1
None.
Schedule 4.2
One Group Mutual Funds is named as a defendant
in the following complaints:
Consolidated Amended Fund Derivative Complaint,
Xxxxxxxx, et al. v. Bank One Corp., et al.,
filed in the United States District Court for the
District of Maryland on
September 29, 2004, MDL Docket Xx. 0000, Xxxxx Xx.
00-xx-00000 D. Md.; and
Consolidated Amended Class Action Complaint,
Xxxxxxxx v. One Group International Equity Index
Fund, et al., filed in the United States District
Court for the District of
Maryland on September 29, 2004, Civil Action no.
04cv00629.
We also bring your attention to the disclosure
in sections of the current prospectuses that
constitute a part of the registration statement
of One Group Mutual Funds
entitled Legal Proceedings and Additional Fee and
Expense Information. There may be additional
regulatory and other proceedings
against Banc One Investment Advisors and its
affiliates
that, if adversely decided, may have a material
adverse effect
on One Group Mutual Funds.
42
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45
272439.7.DC_03
