X.X. XXXXXX SERIES TRUST
ONE GROUP MUTUAL FUNDS
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 X.X. Xxxxxx
Series Trust, a Massachusetts business trust
(JPMorgan), with its principal place of
business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, on behalf of its series, JPMorgan
Global Healthcare Fund (Acquiring Fund), and
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 Health Sciences 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;
WHEREAS, the Acquired Fund currently owns
securities that are substantially similar to
the those in which the Acquiring Fund is
permitted to invest;
WHEREAS, the Trustees of JPMorgan 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 OGMF 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, OGMF, 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 JPMorgan, 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 Class A shares of the Acquired
Fund correspond to the Class A shares of the
Acquiring Fund, the Class B shares of the
Acquired Fund correspond to the Class B shares
of the Acquiring Fund, the Class C shares
of the Acquired Fund correspond to the Class
C shares of the Acquiring Fund, the Class I
shares (to be renamed Select Class shares)
of the Acquired Fund correspond to the Select
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 OGMF
attributable to the Acquired Fund and to be
sold, assigned, conveyed, transferred and
delivered to and acquired by JPMorgan, 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. JPMorgan, 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, OGMF shall
take such actions necessary to complete
the liquidation of the Acquired Fund. To
complete the liquidation, OGMF, 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 OGMF, 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
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 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 JPMorgans Board
of Trustees. All computations of value
shall be made by JPMorgan Chase Bank, N.A.,
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 JPMorgan or at such
other time and/or place as the parties may agree.
3.2. OGMF shall direct JPMorgan Chase Bank,
N.A., as custodian for the Acquired Fund
(Acquired Fund Custodian), to deliver to
JPMorgan, 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. OGMF shall direct the transfer agent for the
Acquired Fund (Transfer Agent) to deliver to
JPMorgan 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
JPMorgan with respect to the Acquiring Fund and
the Board of Trustees of OGMF 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
JPMorgan in Schedule 4.1 to this Agreement,
OGMF, on behalf of the Acquired Fund,
represents and warrants to JPMorgan as follows:
(a) The Acquired 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 power under its
Declaration of Trust, 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. 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 4.1(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 Acquiring 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 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, OGMF, 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, JPMorgan, 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 OGMFs Charter or Code of
Regulations or of any agreement, indenture,
instrument, contract, lease or other undertaking
to which OGMF, 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 OGMF, 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) Except as disclosed in Schedule 4.1 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 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. Except as
disclosed in Schedule 4.1 to this Agreement,
OGMF, 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 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 JPMorgan) present fairly, in all
material respects, the financial condition of
the Acquired Fund as of such date 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 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 Acquired Fund at
December 31, 2004 (unaudited), will be when sent to
Acquired 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 JPMorgan) will present fairly, in
all material respects, the financial condition of
the Acquired Fund as of such date 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 will be disclosed therein.
(j) Since June 30, 2004, 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 indebtedness incurred 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 OGMFs 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 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.
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 action on the part of the Board of
Trustees of OGMF, 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 OGMF, 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 OGMF, 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 OGMF
in Schedule 4.2 to this Agreement, JPMorgan, on
behalf of the Acquiring Fund, represents and
warrants to OGMF as follows:
(a) The Acquiring Fund is duly established as a
series of JPMorgan, which is a business trust duly
organized, existing, and in good standing under the
laws of the Commonwealth of Massachusetts with the
power under JPMorgans Declaration of Trust to own
all of its properties and assets and to carry on
its business as contemplated by this Agreement.
JPMorgan 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. JPMorgan 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 JPMorgan 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 JPMorgan personally, but
bind only the assets of JPMorgan and all persons
dealing with any series or fund of JPMorgan, such as
the Acquired Fund, must look solely to the assets of
JPMorgan belonging to such series or fund for the
enforcement of any claims against JPMorgan.
(b) JPMorgan 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 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 JPMorgans Declaration
of Trust or by-laws or of any agreement,
indenture, instrument, contract, lease or other
undertaking to which JPMorgan, 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 JPMorgan, on behalf
of the Acquiring Fund, is a party or by which
it is bound.
(f) No litigation or administrative proceeding
or investigation of or before any court or
governmental body is presently pending or, to
JPMorgans knowledge, threatened against
JPMorgan, 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. JPMorgan, 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 as included in the most recent
Annual Report to Shareholders for the Acquiring
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 the 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 Acquiring 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 Acquiring Fund, as included or to be
included in the most recent Semi-Annual Report
to shareholders for the Acquiring Fund since
the date of the Annual Statement (the Semi-Annual
Statement) (unaudited), are or will be when
sent to the Acquiring 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 Acquiring Fund as of the date
of the Semi-Annual Statement, 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 are or will be disclosed therein.
(h) Since the date of the Annual Statement, 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 values 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 JPMorgans 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 JPMorgan 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 s
ecurity 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
JPMorgan.
(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 JPMorgan, and this
Agreement constitutes a valid and binding
obligation of JPMorgan, 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, JPMorgan 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
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.
5. COVENANTS
OGMF, on behalf of the Acquired Fund, and
JPMorgan, 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. OGMF 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. JPMorgan 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. OGMF, on behalf of the Acquired Fund,
covenants that it will, from time to time,
as and when reasonably requested by JPMorgan,
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 JPMorgan, on
behalf of the Acquiring Fund, may reasonably
deem necessary or desirable in order to vest
in and confirm (a) OGMFs title to and
possession of the Acquiring Fund Shares to be
delivered hereunder and (b) JPMorgans 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 OGMF, on behalf of the
Acquired Fund, to consummate the
transactions provided for herein shall be
subject, at OGMFs election, to the
performance by JPMorgan, 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
JPMorgan, 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. JPMorgan, on behalf of the Acquiring 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 JPMorgan, on behalf of the Acquiring
Fund, on or before the Closing Date.
6.3. JPMorgan shall have executed and delivered
an assumption of the Liabilities and all such
other agreements and instruments as OGMF may
reasonably deem necessary or desirable in order
to vest in and confirm (a) OGMFs title to and
possession of the Acquiring Fund Shares to be
delivered hereunder and (b) JPMorgans assumption
of all of the liabilities and otherwise to carry
out the intent and purpose of this Agreement.
6.4. JPMorgan, on behalf of the Acquiring Fund,
shall have delivered to the Acquired Fund a
certificate executed in the name of JPMorgan, on
behalf of the Acquiring Fund, by JPMorgans
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
6.1 and 6.2 and as to such other matters as OGMF
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 JPMorgan, on behalf of the
Acquiring Fund, to consummate the transactions
provided for herein shall be subject, at
JPMorgans election, to the performance by OGMF,
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 OGMF,
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. OGMF, 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
OGMF, on behalf of the Acquired Fund, on or
before the Closing Date.
7.3. OGMF 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 OGMF.
OGMF shall have executed and delivered all such
assignments and other instruments of transfer as
JPMorgan may reasonably deem necessary or
desirable in order to vest in and confirm (a)
OGMFs title to and possession of the Acquiring
Fund Shares to be delivered hereunder and (b)
JPMorgans title to and possession of all the
Assets and otherwise to carry out the intent
and purpose of this Agreement.
7.4. OGMF, on behalf of the Acquired Fund,
shall have delivered to JPMorgan a certificate
executed in the name of OGMF, on behalf of the
Acquired Fund, by OGMFs President or Vice
President and its Treasurer or Assistant
Treasurer, in a form reasonably satisfactory
to JPMorgan 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
JPMorgan shall reasonably 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 connection with the Reorganization after such
number has been calculated in accordance with
paragraph 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 OGMF, on behalf of the
Acquired Fund, or JPMorgan, 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 Code of Regulations of OGMF, 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
JPMorgan 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 JPMorgans 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
JPMorgan 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 Fund,
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 OGMF, on behalf of the Acquired Fund,
JPMorgan, 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 receives
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
exchanged 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
representations it shall request of OGMF and
JPMorgan. Notwithstanding anything herein to
the contrary, neither OGMF nor JPMorgan may
waive the condition set forth in this
paragraph 8.5.
8.6. JPMorgan 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
JPMorgan) substantially to the effect that,
based upon certain facts and certifications
made by OGMF, on behalf of the Acquired 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 Charter under the
laws of the Commonwealth of Massachusetts, and
the Acquired Fund is a series of OGMF; (b)
assuming the due authorization, execution and
delivery of this Agreement by JPMorgan on
behalf of the Acquiring Fund, this Agreement
constitutes a valid and legally binding
obligation of OGMF, 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 provision purporting to provide
indemnification to 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 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; (d) the execution and
delivery by OGMF of this Agreement did not,
and the performance by OGMF, on behalf of the
Acquired Fund, of its obligations under this
Agreement will not, violate OGMFs Charter 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 Acquired
Fund, of its obligations 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 OGMF, 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.
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. OGMF shall have received the opinion
of Xxxxxxxx & Xxxxxxxx LLP 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 JPMorgan, on behalf of the Acquiring Fund,
and its authorized officers, (a) JPMorgan 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 JPMorgan; (b) the Acquiring Fund
Shares are duly authorized and, upon delivery
to OGMF, on behalf of the Acquired Fund
shareholders pursuant to this Agreement, will
be validly issued, fully paid and
non-assessable by JPMorgan, except to the
extent that shareholders may be held personally
liable for the obligations of JPMorgan and the
Acquiring Fund under the laws of the
Commonwealth of Massachusetts; (c) assuming the
due authorization, execution and delivery of
this Agreement by OGMF on behalf of the
Acquired Fund, this Agreement constitutes a
valid and legally binding obligation of JPMorgan,
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 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 s
xxxx securities laws; (d) all actions required
to be taken by JPMorgan, 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 JPMorgan; (e) the execution
and delivery by JPMorgan of the Agreement did not,
and the performance by JPMorgan, on behalf of the
Acquiring Fund, of its obligations under the
Agreement will not, violate JPMorgans
Declaration of Trust 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 JPMorgan, 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 JPMorgan, 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. With
respect to all matters of Massachusetts law, such
counsel shall be entitled to state that, with the
approval of the Acquired Fund, they have relied
upon the opinion of JPMorgans 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 JPMorgans Massachusetts counsel.
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. JPMorgan, 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 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 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 JPMorgan or its
Trustees or officers prior to the Closing Date,
provided that such indemnification by JPMorgan
(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. OGMF, 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
JPMorgan 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 OGMF or its
Trustees or officers prior to the Closing Date,
provided that such indemnification by OGMF (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. JPMorgan, on behalf of the Acquiring Fund,
and OGMF, 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 X.X. Xxxxxx Investment Management
Inc. and Banc One Investment Advisors Corporation.
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, preparation 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. JPMorgan and OGMF 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 transactions
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 JPMorgan or the Board of Trustees of OGMF, 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 JPMorgan 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, Xxxxx 000,
Xxxxxxxxxx, XX 00000, attn.: Xxxx X. Xxxxxx;
If to JPMorgan, at the address of JPMorgan 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 JPMORGAN
GLOBAL HEALTHCARE FUND OR ITS PRINCIPAL UNDERWRITER
UNLESS (i) A REGISTRATION STATEMENT WITH RESPECT T
HERETO IS EFFECTIVE UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR (ii) IN THE OPINION OF COUNSEL
REASONABLY SATISFACTORY TO JPMORGAN GLOBAL HEALTHCARE
FUND, SUCH REGISTRATION IS NOT REQUIRED;
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 Health Sciences Fund X.X. XXXXXX SERIES TRUST
on behalf of its series,
JPMorgan Global Healthcare Fund
By: By:
Name: Name:
Title: Title:
With respect to paragraph 10.2 of this Agreement,
Accepted and Acknowledged by:
X.X. Xxxxxx Investment Banc One Investment
Management Inc. Advisors Corporation
By: By:
Name: Name:
Title: Title:
Schedule 4.1
4.1(g)- None.
4.1(h)
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.
