ONE GROUP MUTUAL FUNDS
X.X. XXXXXX MUTUAL FUND TRUST
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION
(Agreement) is made as of this 22nd day of
November, 2004, by and between One Group
Mutual Funds, a Massachusetts business
trust (OGMF), with its principal place of
business at 0000 Xxxxxxx Xxxxxxx, Xxxxx X-0,
Xxxxxxxx, Xxxx 00000, on behalf of its series,
One Group Government Money Market Fund
(Acquiring Fund), and X.X. Xxxxxx
Mutual Fund Trust, a Massachusetts
business trust (Acquired Fund
Company), with its principal place
of business at 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, on behalf of its
series, JPMorgan U.S. Government Money
Market Fund (Acquired Fund).
WHEREAS, each of the Acquired Fund and
the Acquiring Fund is a series of an
open-end, investment company of the
management type registered pursuant to the
Investment Company Act of 1940 (1940 Act);
WHEREAS, this Agreement is intended to be
and is adopted as a plan of reorganization
and liquidation within the meaning of
Section 368(a)(1) of the United States
Internal Revenue Code of 1986, as amended
(Code);
WHEREAS, the contemplated reorganization
and liquidation will consist of (1) the sale,
assignment, conveyance, transfer and delivery
of all of the property and assets of the
Acquired Fund to the Acquiring Fund in
exchange solely for classes of shares of
beneficial interest of the Acquiring Fund
(Acquiring Fund Shares) corresponding to
the classes of outstanding shares of beneficial
interest of the Acquired Fund (Acquired Fund
Shares), as described herein, (2) the
assumption by the Acquiring Fund of all
liabilities of the Acquired Fund, and (3)
the distribution of the Acquiring Fund Shares
to the shareholders of the Acquired Fund
in complete liquidation of the Acquired
Fund, as provided herein (Reorganization),
all upon the terms and conditions
hereinafter set forth in this Agreement;
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 Agency Class shares of the Acquired
Fund correspond to the Administrative shares
(to be renamed Agency Class shares) of the
Acquiring Fund, the Institutional Class shares
of the Acquired Fund correspond to the
Institutional Class shares of the
Acquiring Fund,
the Xxxxxx Class shares of the Acquired
Fund correspond to the Xxxxxx Class shares
of
the Acquiring Fund, the Premier Class shares
of the Acquired Fund correspond to the Class S
shares (to be renamed Premier 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 closin
g of the transactions provided for in this Agreement
(Closing) shall be deemed to take
place simultaneously as of the close of
business on the Closing Date unless otherwise agreed
to by the parties. The close of business
on the Closing Date shall be as of 5:00 p.m.,
Eastern Time. The Closing shall be held
at the offices of the Acquired Fund Company or
at such other time and/or place as the parties may
agree.
3.2. Acquired Fund Company shall direct
JPMorgan Chase Bank, N.A., as custodian
for the Acquired Fund (Acquired Fund Custodian),
to deliver to OGMF, at the Closing, a certificate of
an authorized officer stating that (i)
the Assets of the Acquired Fund have been
delivered in proper form to the Acquiring
Fund within two business days prior to or
on the Closing Date, and (ii) all
necessary taxes
in connection with the delivery of the
Assets of the Acquired Fund, including
all applicable
federal and state stock transfer stamps,
if any, have been paid or provision for payment has
been made. The Acquired Funds portfolio
securities represented by a certificate or
other written instrument shall be presented
by the Acquired Fund Custodian to JPMorgan
Chase Bank, N.A., as the custodian for
the Acquiring Fund (Acquiring Fund Custodian).
Such
presentation shall be made for examination
no later than five (5) business days preceding the
Closing Date, and such certificates and
other written instruments shall be transferred
and delivered by the Acquired Fund as of
the Closing Date for the account of the
Acquiring
Fund duly endorsed in proper form for transfer
in such condition as to constitute good delivery
thereof. Each Acquired Funds Assets held in
book-entry form with a securities depository,
as defined in Rule 17f-4 of the 1940 Act, shall
be transferred by the Acquired Fund
Custodian to the Acquiring Fund Custodian for the
account of the corresponding Acquiring Fund
as of the Closing Date by book entry, in
accordance with the customary practices of
the Acquired Fund Custodian and of each such
securities depository. The cash to
be transferred
by the Acquired Fund shall be
delivered by wire transfer of federal
funds on the Closing
Date.
3.3. Acquired Fund Company shall direct
the transfer agent for the Acquired Fund
(Transfer Agent) to deliver to OGMF at the Closing
a certificate of an authorized officer
stating that its records contain the name and
address
of each Acquired Fund Shareholder and the number
and percentage ownership of each outstanding
class of Acquired Fund Shares owned by
each such shareholder immediately prior to the
Closing. The Acquiring Fund shall deliver to
the Secretary of the Acquired Fund a confirmation
evidencing that (a) the appropriate number of
Acquiring Fund Shares have been credited to
the Acquired Funds account on the books of the
Acquiring Fund pursuant to paragraph 1.1 prior
to the actions contemplated by paragraph 1.4 and
(b) the appropriate number of Acquiring
Fund Shares have been credited to the accounts
of the Acquired Fund Shareholders on the books
of the Acquiring Fund pursuant to paragraph 1.4.
At the Closing each party shall deliver
to the other party such bills of sale, checks,
assignments, share certificates, if any, receipts
or other documents as the other party or its
counsel may reasonably request.
3.4. In the event that at the Valuation Date
(with respect to the Acquired Fund) or at the time
of calculation of the net asset value per
share of each class of Acquiring Fund Shares
pursuant to paragraph 2.2 (with respect to the
Acquiring Fund) (a) the New York Stock Exchange
or another primary trading market for
portfolio securities of the Acquiring Fund or the
Acquired Fund (each an Exchange) shall be
closed to trading or trading thereupon shall be
restricted, or (b) trading or the reporting
of trading on such Exchange or elsewhere shall be
disrupted so that accurate appraisal
of the value of the net assets of the Acquired
Fund or the Acquiring Fund is impracticable (in
the judgment of the Board of Trustees of OGMF with
respect to the Acquiring Fund and the
Board of Trustees of Acquired Fund Company with
respect to the Acquired Fund), the Closing
Date shall be postponed until the first Friday (that
is also a business day) after the
day when trading shall have been fully resumed
and reporting shall have been restored.
4. REPRESENTATIONS AND WARRANTIES
4.1. Except as has been fully disclosed to
OGMF
in Schedule 4.1 to this Agreement, Acquired
Fund
Company, on behalf of the Acquired Fund,
represents and warrants to OGMF as follows:
(a) The Acquired Fund is duly established as a
series of Acquired Fund Company, which is a
business trust duly organized, existing and in
good standing under the laws of the Commonwealth
of Massachusetts, with power
under its Declaration of Trust Incorporation, as
amended (Charter), to own all of its Assets
and to carry on its business as it is being
conducted as of the date hereof. Acquired
Fund Company is not required to qualify as a
foreign trust or association in any
jurisdiction, except in any jurisdiction
in which it has so qualified or in which a failure
to so
qualify would not have a material
adverse effect. Acquired Fund Company has all
necessary
federal, state and local authorization to
carry on its business as now being conducted and
to fulfill the terms of this Agreement,
except as set forth in paragraph 4.1(c). The obligations
of Acquired Fund Company entered into
in the name or on behalf thereof by any of the
Trustees, officers, employees or agents
are made not individually, but in such capacities,
and are not binding upon any of the Trustees, officers
, employees, agents or shareholders
of Acquired Fund Company personally,
but bind only the assets of Acquired Fund Company
and all persons dealing with any series
or fund of Acquired Fund Company, such as the
Acquiring Fund, must look solely to the
assets of Acquired Fund Company belonging to such
series or fund for the enforcement of any
claims against Acquired Fund Company.
(b) Acquired Fund Company is a registered
investment company classified as a management
company of the open-end type, and its
registration with the Commission as an
investment company under the 1940 Act, and the
registration of each class of Acquired
Fund Shares under the Securities Act of 1933, as
amended
(1933 Act), is in full force and effect.
(c) No consent, approval, authorization,
or order of any court or governmental
authority is required for the consummation by the
Acquired Fund of the transactions
contemplated herein, except such as may be required
under
the 1933 Act, the Securities Exchange
Act of 1934, as amended (1934 Act), the 0000 Xxx,
xxxxx
securities laws and the Xxxx-Xxxxx-Xxxxxx
Act.
(d) The current prospectus and statement of
additional information of the Acquired Fund
conforms in all material respects to the
applicable requirements of the 1933 Act and
the 1940 Act and the rules and regulations of
the Commission thereunder and does not include
any untrue statement of a material fact or omit
to state any material fact required to be stated
therein or necessary to make the statements
therein, in light of the circumstances under which
they were made, not materially misleading.
(e) On the Closing Date, Acquired Fund Company,
on behalf of the Acquired Fund, will have good
and marketable title to the Assets and full
right, power, and authority to sell, assign,
convey, transfer and deliver such Assets
hereunder free of any liens or other encumbrances,
and upon delivery and payment
for the Assets, OGMF, on behalf of the
Acquiring Fund, will acquire good and marketable
title thereto, subject to no restrictions
on the full transfer thereof, including
such
restrictions as might arise under the 1933
Act.
(f) The Acquired Fund is not engaged currently,
and the execution, delivery and
performance of this Agreement will
not result, in (i)
a material violation of the Charter
or by-laws of Acquired Fund Company
or of any agreement,
indenture, instrument, contract,
lease or other undertaking to which
Acquired Fund Company,
on behalf of the Acquired Fund, is
a party
or by which it is bound, or (ii) the
acceleration
of any material obligation, or the
imposition of any material penalty,
under any agreement,
indenture, instrument, contract, lease,
judgment or decree to which Acquired
Fund Company,
on behalf of the Acquired Fund, is a
party or by which it is bound.
(g) All material contracts or other
commitments
of the Acquired Fund (other than
this Agreement, contracts listed
in Schedule 4.1 and
certain investment contracts,
including options, futures, and
forward contracts) will
terminate without liability to the
Acquired Fund on or prior to the
Closing Date. Each
contract listed in Schedule 4.1 is
a valid, binding and enforceable
obligation of each party
thereto (assuming due authorization,
execution and delivery by the other
party thereto)
and the assignment by the Acquired
Fund to the Acquiring Fund of each
such contract will
not result in the termination of such
contract, any breach or default
thereunder or the
imposition of any penalty thereunder.
(h) No litigation or administrative
proceeding or
investigation of or before any court
or governmental body is presently
pending or, to
Acquired Fund Companys knowledge,
threatened against Acquired Fund
Company, with respect
to the Acquired Fund or any of its
properties
or assets, that, if adversely
determined, would
materially and adversely affect its
financial condition or the conduct
ofts 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 al
l 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 Fu
nds 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 liabil
ities, 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 pa
yment 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 ac
quisition by the Acquired Fund, is
unsuitable for the
Acquiring Fund to acquire.
(n) The execution, delivery and
performance of
this Agreement, and the transactions
contemplated herein, have been duly
authorized
by all necessary corporate action on
the part of the Board of Trustees of
Acquired Fund Company, and by the approval of the
Acquired Funds shareholders, as
described in paragraph 8.1, and this
Agreement constitutes a
valid and binding obligation of
Acquired Fund Company, on behalf of
the Acquired Fund, enforceable in
accordance with its terms,
subject, as to enforcement, to
bankruptcy, insolvency, reorganization,
moratorium and
other laws relating to or affecting
creditors rights and to general equity
principles.
(o) The combined proxy statement and
prospectus (Proxy Statement) to be
included in the Registration Statement
(as defined in
paragraph 5.6), insofar as it relates to
the Acquired Fund and the Acquired Fund
Company, will
from the effective date of the Registration
Statement through the date of the meeting
of shareholders of the Acquired Fund
contemplated therein and on the Closing Date
(i) not
contain any untrue statement of a material
fact or omit to state a material fact
required to
be stated therein or necessary to make
the statements therein, in light of the
circumstances under which such statements
were made, not materially misleading
(provided that
this representation and warranty shall
not apply to statements in or omissions
from the Proxy
Statement made in reliance upon and in
conformity with information that was
furnished by
the Acquiring Fund for use therein) and
(ii) comply in all material respects
with
the provisions of the 1933 Act, the 1934
Act and the 1940 Act and the rules and
regulations
thereunder. The information to be furnished
by the Acquired Fund for use in registration
statements and other documents filed
or to be filed with any federal, state or local
regulatory authority (including the
National Association of Securities Dealers, Inc.),
which may be necessary in connection
with the transactions contemplated hereby,
shall be
accurate and complete in all material
respects and shall comply in all material respects
with federal securities and other laws
and regulations thereunder applicable thereto.
4.2. Except as has been fully disclosed to
Acquired Fund Company in Schedule 4.2 to
this Agreement, OGMF, on behalf of the Acquiring
Fund, represents and warrants to Acquired
Fund Company as follows:
(a) The Acquiring Fund is duly established
as
a series of OGMF, which is a business trust
duly organized, existing, and in good standing
under the laws of the Commonwealth of
Massachusetts with the power under OGMFs
Declaration of Trust to own all of its
properties and assets and to carry on its
business
as contemplated by this Agreement. OGMF
is not required to qualify as a foreign trust
or association in any jurisdiction,
except in any jurisdiction in which it
has so qualified
or in which a failure to so qualify would
not have a material adverse effect.
OGMF has all
necessary federal, state and local
authorization to carry on its business as now
being conducted
and to fulfill the terms of this Agreement,
except as set forth in paragraph 4.2(c).
The obligations of OGMF entered into in
the name or on behalf thereof by any of the
Trustees,
officers, employees or agents are made not
individually, but in such capacities, and are
not binding upon any of the Trustees, officers,
employees, agents or shareholders
of OGMF personally, but bind only the assets
of OGMF and all persons dealing with any series
or fund of OGMF, such as the Acquired Fund,
must look solely to the assets of OGMF belonging
to such series or fund for the enforcement of
any claims against OGMF.
(b) OGMF is a registered investment company
classified as a management company of the
open-end type, and its registration with the
Commission as an investment company under
the 1940 Act and the registration of each
class 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 Share
s 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 securit
ies 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,
enforce
able 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
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 A
greement.
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 inf
ormation 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 Fu
nd, 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
iconnection 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 Reorgan
ization 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 w
ill 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 recognize
d 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 contrac
tual 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 Ag
reement 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 Acquire
d 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 Acquir
ing 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 b
y 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 consummat
ion 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 l
aw 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 co
mpetent 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 e
ntitled to receive any payments in connecti
on 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 i
n 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 afte
r 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 o
f 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 GOVERNMENT
MONEY MARKET FUND OR ITS PRINCIPAL
UNDERWRITER UNLESS (i)
A REGISTRATION STATEMENT WITH RESPECT
THERETO IS EFFECTIVE
UNDER THE SECURITIES ACT OF 1933,
AS AM
ENDED, OR (ii) IN THE OPINION OF
COUNSEL REASONABLY SATISFACTORY TO
ONE GROUP GOVERNMENT MONEY MARKET FUND,
SUCH REGISTRATION
IS NOT REQUIRED;
[Remainder of Page Intentionally Left Blank]
and, further, the Acquired Fund will issue
stop transfer instructions to its transfer
agent with respect to such Acquired Fund Shares.
IN WITNESS WHEREOF, each of the parties
hereto has caused this Agreement to be
executed by its President or any Vice President.
ONE GROUP MUTUAL FUNDS,
on behalf of its series,
One Group Government Money Market Fund
X.X. XXXXXX MUTUAL FUND TRUST
on behalf of its series,
JPMorgan U.S. Government Money Market 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 materi
al adverse effect on One Group Mutual Funds.
2
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