ONE GROUP MUTUAL FUNDS
X.X. XXXXXX MUTUAL FUND SELECT 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 Tax-Free Bond Fund (Acquiring Fund),
and X.X. Xxxxxx Mutual Fund Select 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 Tax Free Income
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 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 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
Select Class shares of the Acquired Fund correspond to the
Class I shares (to be renamed 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 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,
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, a
nd 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 i
ts 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 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 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 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
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
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
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 Agreement 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 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 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 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 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 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 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 Acquired Fund, of its obligations 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 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 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 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;
(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, 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. 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 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 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 TAX-FREE BOND 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 TAX-FREE BOND 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 Tax-Free Bond Fund
X.X. XXXXXX MUTUAL FUND SELECT TRUST
on behalf of its series,
JPMorgan Tax Free Income Fund
By: By:
Name: Name:
Title: Title:
With respect to paragraph 10.2 of this
Agreement, Accepted and Acknowledged by:
X.X. Xxxxxx Investment Management Inc.
Banc One Investment Advisors
Corporation
By: By:
Name: Name:
Title: 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.
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