X.X. XXXXXX MUTUAL FUND SERIES
X.X. XXXXXX MUTUAL FUND GROUP
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION
(Agreement) is made as of this 22nd day of November, 2004,
by and between X.X. Xxxxxx Mutual Fund Series, a
Massachusetts business trust (Successor Trust), with its
principal place of business at 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, on behalf of each of its series
listed in Exhibit A attached hereto (each a Successor
Fund), and X.X. Xxxxxx Mutual Fund Group, a
Massachusetts business trust (Predecessor Trust), with
its principal place of business at 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, on behalf of each of its
series listed in Exhibit A attached hereto (each a
Predecessor Fund).
WHEREAS, each of the Predecessor Funds is a
series of the Predecessor Trust, an open-end, investment
company of the management type registered pursuant
to the Investment Company Act of 1940, as
amended (1940 Act), which has been organized as
a Massachusetts business trust;
WHEREAS, each of the Successor Funds
has been organized as series of the Successor Trust,
a Massachusetts business trust, in order to continue
the business and operations of the corresponding
Predecessor Fund;
WHEREAS, each Successor Fund currently has
no assets and has carried on no business activities prior
to the date first shown above and will have had no
assets and will have carried on no business activities
prior to the consummation of the transaction
described herein;
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 each of the Predecessor Funds
to the corresponding Successor Fund in exchange solely
for classes of shares of beneficial interest of such
Successor Fund (Successor Fund Shares)
corresponding to the classes of shares of beneficial
interest of such Predecessor Fund (Predecessor
Fund Shares), as described herein, (2) the assumption
by such Successor Fund of all liabilities of the
corresponding Predecessor Fund, and (3) the distribution
of the Successor Fund Shares to the shareholders of
each corresponding Predecessor Fund, as provided
herein (Reorganization), all upon the terms and
conditions hereinafter set forth in this Agreement;
WHEREAS, each Predecessor Fund currently
owns securities that are substantially similar
to those in which the corresponding Successor
Fund is permitted to invest;
WHEREAS, the Trustees of Successor Trust
have determined, with respect to each Successor
Fund, that the sale, assignment, conveyance, transfer
and delivery of all of the property and assets of the
corresponding Predecessor Fund for Successor Fund
Shares and the assumption of all liabilities of such
Predecessor Fund by the corresponding Successor
Fund is in the best interests of each Successor Fund;
WHEREAS, the Trustees of the Predecessor
Trust have determined, with respect to each Predecessor
Fund, that the sale, assignment, conveyance, transfer
and delivery of all of the property and assets of such
Predecessor Fund for Successor Fund Shares and the
assumption of all liabilities of such Predecessor Fund
by the corresponding Successor Fund pursuant to this
Agreement is in the best interests of the Predecessor
Trust, each of the Predecessor Funds and its
shareholders and that the interests such shareholders
will not be diluted as a result of this transaction; and
WHEREAS, the Predecessor Trust, on behalf
of each of certain Predecessor Funds
identified in Exhibit A (Contingent Predecessor
Funds), has entered into an agreement and
plan of reorganization pursuant to which each
Contingent Predecessor Fund will be reorganized
with another registered investment company or series
thereof (with respect to each Contingent
Predecessor Fund, the Primary Reorganization), subject
to approval of the Primary Reorganization by the
shareholders of such Contingent Predecessor Fund,
and this Agreement shall not be effective with
respect to such Contingent Predecessor Fund in
the event that the Primary Reorganization is consummated;
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 EACH PREDECESSOR
FUND TO THE CORRESPONDING SUCCESSOR FUND
IN EXCHANGE FOR SUCCESSOR FUND SHARES, THE
ASSUMPTION OF ALL PREDECESSOR FUND
LIABILITIES AND THE LIQUIDATION OF THE
PREDECESSOR 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,
Predecessor Trust, on behalf of each Predecessor
Fund, agrees to sell, assign, convey, transfer and
deliver all of such Predecessor Funds property and
assets, as set forth in paragraph 1.2, to the corresponding
Successor Fund, and Successor Trust, on behalf of each
Successor Fund, agrees in exchange therefor: (a) to
deliver to the corresponding Predecessor Fund the
number of full and fractional Successor Fund Shares
corresponding to each class of the Predecessor Fund
Shares as of the time and date set forth in
paragraph 3; and (b) to assume all liabilities of such
Predecessor 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).
Exhibit A attached hereto shows each Successor Fund
and its classes of shares of beneficial interest and the
corresponding Predecessor Fund and its classes of
shares of beneficial interest. (Throughout this
Agreement, the term Successor Fund Shares should
be read to include each class of shares of the applicable
Successor Fund, and each reference to Successor Fund
Shares in connection with a Predecessor Fund should
be read to include each class of beneficial interest
of the corresponding Successor Fund.)
1.2 The property and assets of each Predecessor
Fund to be sold, assigned, conveyed, transferred and
delivered to and acquired by Successor Trust, on behalf
of the corresponding Successor 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 such
Predecessor Fund and any deferred or prepaid expenses shown
as an asset on the books of such Predecessor Fund on the
Valuation Date as defined in paragraph 2.1 (collectively,
with respect to each Predecessor Fund separately, Assets).
The Predecessor Fund will sell, assign, convey, transfer and
deliver to the Successor Fund any rights, stock dividends,
or other securities received by the Predecessor 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 Successor 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 Predecessor Fund acquired by the
Successor Fund.
1.3 Predecessor Trust, on behalf of each
Predecessor Fund, will make reasonable efforts
to discharge all of its known liabilities and obligations
prior to the Valuation Date. Successor Trust, on
behalf of each Successor Fund, shall assume all
of the liabilities of the corresponding Predecessor
Fund, whether accrued or contingent, known or
unknown, existing at the Valuation Date (collectively,
with respect to each Predecessor Fund separately,
Liabilities).
1.4. Immediately upon delivery to the Predecessor
Fund of the Successor Fund Shares, the Predecessor Fund, as
the then sole shareholder of the Successor Fund, shall (a)
approve the advisory agreement with respect to the
Successor Fund, and (b) approve the distribution plan
pursuant to Rule 12b-1 under the 1940 Act with
respect to each applicable class of Successor Fund Shares.
1.4 Immediately following the actions
contemplated by paragraph 1.4, the Predecessor Trust
shall take such actions necessary to complete the
liquidation of each Predecessor Fund. To complete the
liquidation, the Predecessor Trust, on behalf of the
Predecessor Fund, shall (a) distribute to its shareholders
of record with respect to each class of Predecessor
Fund Shares as of the Closing, as defined in
paragraph 3.1 (Predecessor Fund Shareholders), on
a pro rata basis within that class, the Successor Fund
Shares of the corresponding class received by the
Predecessor Trust, on behalf of the Predecessor Fund,
pursuant to paragraph 1.1 and (b) completely
liquidate. Such liquidation shall be accomplished,
with respect to each class of Predecessor Fund Shares,
by the transfer of the corresponding Successor Fund
Shares then credited to the account of the Predecessor
Fund on the books of the Successor Fund to open
accounts on the share records of the Successor Fund in
the names of the Predecessor Fund Shareholders. The
aggregate net asset value of each class of Successor
Fund Shares to be so credited to each corresponding
class of Predecessor Fund Shareholders shall, with
respect to each class, be equal to the aggregate net
asset value of the Predecessor Fund Shares of
the corresponding class owned by Predecessor Fund
Shareholders on the Closing Date. All issued and
outstanding Predecessor Fund Shares will be canceled
on the books of the Predecessor Fund. No
Successor Fund shall issue certificates representing any
class of Successor Fund Shares in connection with
such exchange.
1.5 Ownership of Successor Fund Shares
will be shown on the books of each Successor
Funds transfer agent.
1.6 Any reporting responsibility of a
Predecessor 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
such Predecessor Fund.
2. VALUATION
2.1 The value of the Assets of each
Predecessor Fund shall be determined as of the time
for calculation of its net asset value as set forth
in the then-current prospectus for the Predecessor
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 each Predecessor Fund and
valuation procedures established by Predecessor
Trusts Board of Trustees.
2.2 All computations of value shall be
made by the fund accountant for each Predecessor Fund.
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
Successor Trust or at such other time and/or place
as the parties may agree.
3.2 Predecessor Trust shall direct the custodian
for each Predecessor Fund (Predecessor Fund Custodian),
to deliver to Successor Trust, at the Closing, a
certificate of an authorized officer stating that (i) the
Assets of each Predecessor Fund have been delivered
in proper form to the corresponding Successor 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 each Predecessor Fund,
including all applicable federal and state stock transfer
stamps, if any, have been paid or provision for payment
has been made. Each Predecessor Funds portfolio
securities represented by a certificate or other written
instrument shall be presented by the Predecessor Fund
Custodian to JPMorgan Chase Bank, N.A. as the
custodian for the corresponding Successor Fund
(Successor 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 each Predecessor Fund as of the Closing
Date for the account of the corresponding Successor
Fund duly endorsed in proper form for transfer in such
condition as to constitute good delivery thereof. Each
Predecessor 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 Predecessor Fund
Custodian to the Successor Fund Custodian for
the account of the corresponding Successor Fund as of
the Closing Date by book entry, in accordance with
the customary practices of the Predecessor Fund
Custodian and of each such securities depository.
The cash to be transferred by each Predecessor Fund
shall be delivered by wire transfer of federal funds on
the Closing Date.
3.3 Predecessor Trust shall direct the transfer
agent for each Predecessor Fund (Transfer Agent) to
deliver to Successor Trust at the Closing a certificate
of an authorized officer stating that its records contain
the name and address of each Predecessor Fund
Shareholder and the number and percentage ownership
of each outstanding class of Predecessor Fund Shares
owned by each such shareholder immediately prior to
the Closing. Each Successor Fund shall deliver to
the Secretary of the corresponding Predecessor Fund
a confirmation evidencing that (a) the appropriate
number of Successor Fund Shares have been credited
to such Predecessor Funds account on the books
of such Successor Fund pursuant to paragraph 1.1
prior to the actions contemplated by paragraph 1.4
and (b) the appropriate number of Successor Fund
Shares have been credited to the accounts of the
Predecessor Fund Shareholders on the books of
such Successor Fund pursuant to paragraph 1.5. At
the Closing, each Predecessor Fund shall deliver to
the corresponding Successor Fund such bills of
sale, checks, assignments, share certificates, if any,
receipts or other documents as such Successor Fund
or its counsel may reasonably request.
3.4 In the event that on the Valuation Date
(a) the New York Stock Exchange or another primary
trading market for portfolio securities of a Predecessor
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, in the judgment of the Board of
Trustees of Successor Trust and the Board of Trustees
of Predecessor Trust, accurate appraisal of the value of
the net assets of such Predecessor Fund is impracticable,
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 the
Successor Trust in Schedule 4.1 of this Agreement,
the Predecessor Trust, on behalf of each Predecessor
Fund, represents and warrants to Successor Trust
as follows:
(a) Each Predecessor Fund is duly
established as a series of the Predecessor Trust, which is
a business trust duly organized, existing and in good
standing under the laws of the Commonwealth of
Massachusetts, with power under the Predecessor Trusts
Declaration of Trust (Charter), to own all of its Assets
and to carry on its business as it is being conducted
as of the date hereof. Predecessor Trust 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.
Predecessor Trust 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 Predecessor Trust 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 Predecessor Trust personally, but bind
only the assets of Predecessor Trust and all persons
dealing with any series or fund of Predecessor Trust,
such as the Predecessor Funds, must look solely
to the assets of Predecessor Trust belonging to such
series or fund for the enforcement of any claims
against Predecessor Trust.
(b) Predecessor Trust 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 Predecessor 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 Predecessor Funds 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 each Predecessor Fund (true
and correct copies of which have been delivered to
the Successor Trust) and each prospectus and statement
of additional information of each Predecessor Fund used
at all times prior to the date of this Agreement conforms
or conformed at the time of its use 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 or did not at the
time of its use 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, the Predecessor
Trust, on behalf of each Predecessor 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, the Successor Trust, on behalf of each
corresponding Successor 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) None of the Predecessor Funds
is engaged currently, and the execution, delivery and
performance of this Agreement will not result, (i) in a
material violation of the Charter or by-laws of
Predecessor Trust or of any agreement, indenture,
instrument, contract, lease or other undertaking to
which the Predecessor Trust, on behalf of any of the
Predecessor Funds, 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 the Predecessor Trust,
on behalf of any of the Predecessor Funds, is a party
or by which it is bound.
(g) All material contracts or other
commitments of the Predecessor Funds (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 Predecessor Funds 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 parties thereto)
and the assignment by each Predecessor Fund to the
corresponding Successor 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
the Predecessor Trusts knowledge, threatened against
Predecessor Trust, with respect to any Predecessor
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.
Predecessor Trust, on behalf of the Predecessor
Funds, 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 each
of the Predecessor Funds as included in the most recent
Annual Report to Shareholders for each of the
Predecessor Funds (as to each Predecessor Fund,
the Annual Statement), have been audited by
PricewaterhouseCoopers LLP, Independent Registered
Public Accounting Firm, and are in accordance
with accounting principles generally accepted in the
United States of America (GAAP) consistently
applied, and such statements (true and correct copies
of which have been furnished to the Successor
Trust) present fairly, in all material respects, the
financial condition of each of the Predecessor
Funds as of the date of the Annual Statements in
accordance with GAAP, and there are no known
contingent, accrued or other liabilities of the Predecessor
Funds required to be reflected on a balance
sheet (including the notes thereto) in accordance with
GAAP as of the date of the Annual Statements
that are not disclosed therein. The Statement of
Assets and Liabilities, Statements of Operations and
Changes in Net Assets, and Schedule of Investments
of each of the Predecessor Funds, as included or to
be included in the most recent Semi-Annual Report
to shareholders for each of the Predecessor Funds
since the date of the Annual Statements (as to each
Predecessor Fund, the Semi-Annual Statements)
(unaudited), are or will be when sent to Predecessor
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 the Successor Trust) present or will
present fairly, in all material respects, the financial
condition of each of the Predecessor Funds as of the
date of the Semi-Annual Statements in accordance with
GAAP, and all known contingent, accrued or other
liabilities of the Predecessor Funds 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 each Predecessor Funds financial condition,
assets, Liabilities or business, other than changes
occurring in the ordinary course of business, or any
incurrence by the Predecessor Fund of indebtedness,
other than indebtedness incurred in the ordinary course
of business in accordance with the Predecessor Funds
investment restrictions. For the purposes of this
subparagraph (j), a decline in net asset value per share
of Predecessor Fund Shares due to declines in market
values of securities held by the Predecessor Fund,
the discharge of Predecessor Funds liabilities, or the
redemption of Predecessor Fund Shares by shareholders
of the Predecessor 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 each of the Predecessor Funds
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 the Predecessor Trusts 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 that includes
the Closing Date), each of the Predecessor Funds has
met 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 eligible to compute and has computed
its federal income tax under Section 852 of the Code.
(m) All issued and outstanding Predecessor
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 Predecessor Trust and
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 Predecessor 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 Predecessor Fund, as
provided in paragraph 3.3. None of the Predecessor
Funds have outstanding any options, warrants or other
rights to subscribe for or purchase any of the
Predecessor Fund Shares, nor is there outstanding any
security convertible into any of the Predecessor Fund
Shares. The Predecessor 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 Successor
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 Predecessor Fund, is unsuitable for the Successor
Fund to acquire.
(n) The execution, delivery and performance
of this Agreement, and the transactions contemplated
herein, have been duly authorized by all necessary
action on the part of the Board of Trustees of Predecessor
Trust and by the approval of the Predecessor Funds
shareholders, as described in paragraph 8.1, and this
Agreement constitutes a valid and binding obligation of
the Predecessor Trust, on behalf of the Predecessor 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 Proxy Statement (as defined in
paragraph 5.2), insofar as it relates to the Predecessor
Funds, will on the date thereof and at all times prior to
the conclusion of the shareholder meeting to which the
Proxy Statement relates (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
Successor Trust 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 each
of the Predecessor Funds 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 the
Predecessor Trust in Schedule 4.2, the Successor Trust,
on behalf of each Successor Fund, represents and warrants
to the Predecessor Trust as follows:
(a) Each Successor Fund is duly established
as a series of the Successor Trust, which is a business
trust duly organized, existing, and in good standing
under the laws of the Commonwealth of Massachusetts
with the power under Successor Trusts Declaration of
Trust to own all of its properties and assets and to carry
on its business as contemplated by this Agreement. The
Successor Trust 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. The Trust 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(b).
The obligations of Successor Trust 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 Successor Trust personally, but bind
only the assets of Successor Trust and all persons
dealing with any series or fund of Successor Trust,
such as the Successor Funds, must look solely to the
assets of Successor Trust belonging to such series
or fund for the enforcement of any claims against
Successor Trust.
(b) No consent, approval, authorization,
or order of any court or governmental authority is required
for the consummation by the Successor Funds 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.
(c) Each Successor Fund currently has
no assets or liabilities and has carried on no business
activities prior to the date first shown above. Prior to
the Closing Date, none of the Successor Funds will
have any assets or liabilities or will have carried on
any business activities.
(d) None of the Successor Funds is
currently engaged in any activities and the execution,
delivery and performance of this Agreement will not
result, in (i) a material violation of the Successor Trusts
Declaration of Trust or by-laws or of any agreement,
indenture, instrument, contract, lease or other
undertaking to which the Successor Trust, on behalf
of any of the Successor Funds, 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 the
Successor Trust, on behalf of any of the Successor
Funds, is a party or by which it is bound.
(e) No litigation or administrative
proceeding or investigation of or before any court
or governmental body is presently pending or, to
the Successor Trusts knowledge, threatened against
Successor Trust, with respect to any of the Successor
Funds or its properties or assets, that, if adversely
determined, would materially and adversely affect the
Successor Funds financial condition or the conduct of
its business. The Successor Trust, on behalf of each of
the Successor Funds, 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 Successor Funds business or its ability to
consummate the transactions herein contemplated.
(f) Upon consummation of the
Reorganization, all issued and outstanding Successor
Fund Shares will be duly authorized and validly and
legally issued and outstanding, fully paid and
non-assessable by Successor Trust 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 the 1933 Act and other securities laws. None of the
Successor Funds have outstanding any options, warrants
or other rights to subscribe for or purchase any
Successor Fund Shares, nor is there outstanding
any security convertible into any Successor Fund Shares.
(g) The execution, delivery and
performance of this Agreement, and the transaction
contemplated herein, have been duly authorized by
all necessary action on the part of the Board of Trustees
of the Successor Trust, and this Agreement constitutes
a valid and binding obligation of Successor Trust, on
behalf of each of the Successor Funds, 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.
(h) The information to be furnished by
each of the Successor Funds for use in the registration
statements, proxy materials and other documents that 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 applicable thereto.
(i) The current prospectus and statement
of additional information of each Successor Fund (true
and correct copies of which have been delivered to
Predecessor Trust, 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.
(j) To the best knowledge of Successor
Trust, on behalf of each Successor Fund, the Successor
Fund will meet the requirements of Subchapter M of
the Code for qualification as a regulated investment
company from and including the taxable year that
includes the Closing Date and will be eligible to, and
will, compute its Federal income tax under Section
852 of the Code.
5. COVENANTS
Predecessor Trust, on behalf of each Predecessor Fund,
and the Successor Trust, on behalf of each Successor
Fund, respectively, hereby further covenant as follows:
5.1 Each Predecessor Fund covenants that it
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 Predecessor Trust will call a meeting
of the shareholders of each Predecessor Fund to consider
and act upon this Agreement and to take all other action
necessary to obtain approval of the transactions
contemplated herein. In addition, the Predecessor
Trust will, on behalf of each Predecessor Fund,
prepare, file with the Commission, and deliver to
the shareholders of such Predecessor Fund in
connection with such meeting a proxy statement
on Schedule 14A (Proxy Statement) in compliance
in all material respects with the provisions of the 1934
Act and the 1940 Act and the rules and regulations
thereunder.
5.3 Each Predecessor Fund covenants that
the Successor Fund Shares to be acquired by such
Predecessor Fund 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 Each Predecessor Fund will assist the
corresponding Successor Fund in obtaining such information
as such Successor Fund reasonably requests concerning
the beneficial ownership of the Predecessor Fund Shares.
5.5 Subject to the provisions of this Agreement,
each Successor Fund and the corresponding Predecessor
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 Each Successor Fund will provide to the
corresponding Predecessor Fund such information
regarding such Successor Fund as may be reasonably
necessary for the preparation of the Proxy Statement in
compliance with the 1934 Act and the 1940 Act and the
rules and regulations thereunder.
5.7 Each Successor Fund and the corresponding
Predecessor 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 The Predecessor Trust, on behalf of each
Predecessor Fund, covenants that it will, from time
to time, as and when reasonably requested by the
Successor Trust, 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 the Successor Trust, on
behalf of such Successor Fund, may reasonably deem
necessary or desirable in order to vest in and confirm
(a) the Predecessor Trusts title to and possession of
the Successor Fund Shares to be delivered hereunder
and (b) the Successor Trusts title to and possession
of all the Assets and to otherwise to carry out
the intent and purpose of this Agreement.
5.9 Each Successor 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 operate after
the Closing Date.
5.10 The Successor Trust shall not change
its Declaration of Trust, nor the prospectus or statement
of additional information of the Successor Fund
prior to the Closing so as to restrict permitted
investments for the Successor Fund prior to
the Closing, except as required by the Commission.
6. CONDITIONS PRECEDENT TO OBLIGATIONS
OF EACH PREDECESSOR FUND
The obligations of the Predecessor Trust, on behalf
of each Predecessor Fund, to consummate the transactions
provided for herein shall be subject, at Predecessor Trusts
election, to the performance by the Successor Trust,
on behalf of the corresponding Successor 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 the
Successor Trust, on behalf of such Successor 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 The Successor Trust, on behalf of such
Successor 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 the
Successor Trust, on behalf of such Successor Fund,
on or before the Closing Date.
6.3 Successor Trust shall have executed
and delivered an assumption of the Liabilities
and all such other agreements and instruments as
Predecessor Trust may reasonably deem necessary
or desirable in order to vest in and confirm (a)
Predecessor Trusts title to and possession of the
Successor Fund Shares to be delivered hereunder
and (b) Successor Trusts assumption of all of the
Liabilities and to otherwise to carry out the intent
and purpose of this Agreement.
6.4 The Successor Trust, on behalf of
such Successor Fund, shall have delivered to such
Predecessor Fund a certificate executed in the
name of such Successor Fund by the Successor Trusts
President or Vice President and its Treasurer or
Assistant Treasurer, in a form reasonably satisfactory
to Predecessor Trust 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 Predecessor Trust shall
reasonably request.
6.5 Such Predecessor Fund and such Successor
Fund shall have agreed on the number of full and fractional
Successor 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 EACH SUCCESSOR FUND
The obligations of the Successor Trust, on behalf
of each Successor Fund, to complete the transactions
provided for herein shall be subject, at the Successor
Trusts election, to the performance by the
Predecessor Trust, on behalf of the corresponding
Predecessor Fund, of all of the obligations to be
performed by it hereunder on or before the Closing
Date and, in addition thereto, the following conditions:
7.1 All representations and warranties of the
Predecessor Trust, on behalf of such Predecessor 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 The Predecessor Trust, on behalf of such
Predecessor 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 the Predecessor Trust, on behalf of such
Predecessor Fund, on or before the Closing Date.
7.3 The Predecessor Trust shall have
delivered to such Successor Fund a statement of the
Assets and Liabilities, as of the Closing Date, including
a schedule of investments, certified by the Treasurer
of the Predecessor Trust. Predecessor Trust shall have
executed and delivered all such assignments and other
instruments of transfer as Successor Trust may reasonably
deem necessary or desirable in order to vest in and confirm
(a) Predecessor Trusts title to and possession of the
Successor Fund Shares to be delivered hereunder
and (b) Successor Trusts title to and possession of
all the Assets and to otherwise to carry out the intent
and purpose of this Agreement.
7.4 The Predecessor Trust, on behalf
of such Predecessor Fund, shall have delivered
to the Successor Trust a certificate executed in
the name of the Predecessor Trust, on behalf
of such Predecessor Fund, and by the Predecessor
Trusts President or Vice President and its Treasurer
or Assistant Treasurer, in a form reasonably
satisfactory to the Successor Trust 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 Successor Trust shall reasonably request.
7.5 Such Predecessor Fund and such Successor
Fund shall have agreed on the number of full and
fractional Successor 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 EACH SUCCESSOR FUND
AND EACH CORRESPONDING PREDECESSOR FUND
If any of the conditions set forth below have
not been satisfied on or before the Closing Date with
respect to the Predecessor Trust, on behalf of each
Predecessor Fund, or the Successor Trust, on behalf
of each Successor 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 such Predecessor Fund, in accordance with
the provision of the Charter and by-laws of the
Predecessor Trust, applicable state law and the 1940
Act, and certified copies of the resolutions evidencing
such approval shall have been delivered to Successor
Trust. Notwithstanding anything herein to the contrary,
neither the Successor Trust nor the Predecessor Trust
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 the Successor Trusts
or to the Predecessor Trusts 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 the Successor
Trust or the Predecessor Trust 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 such Successor Fund or such Predecessor
Fund, provided that either party hereto may for itself
waive any of such conditions.
8.4 The registration statement with respect
to the Successor Fund Shares under the 1933 Act
shall be effective, and no stop order suspending
the effectiveness of such registration statement
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 the Predecessor Trust, on
behalf of each Predecessor Fund, the Successor Trust,
on behalf of each Successor 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 Successor Fund and the
Predecessor 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 Successor
Fund upon receipt of the Assets in exchange for
the Successor Fund Shares and the assumption by
the Successor Fund of the Liabilities; (iii) the basis
in the hands of the Successor Fund in the Assets
will be the same as the basis of the Predecessor Fund
in the Assets immediately prior to the transfer
thereof; (iv) the holding periods of the Assets in the
hands of the Successor Fund will include the periods
during which the Assets were held by the Predecessor
Fund; (v) no gain or loss will be recognized by the
Predecessor Fund upon the transfer of the Assets to
the Successor Fund in exchange for the Successor
Fund Shares and the assumption by the Successor
Fund of all of the Liabilities, or upon the distribution
of the Successor Fund Shares by the Predecessor
Fund to its shareholders in liquidation; (vi) no gain
or loss will be recognized by the Predecessor Fund
shareholders upon the exchange of their Predecessor
Fund Shares for the Successor Fund Shares; (vii)
the aggregate basis of the Successor Fund Shares
that each Predecessor Fund shareholder receives in
connection with the transaction will be the same
as the aggregate basis of his or her Predecessor Fund
Shares exchanged therefor; (viii) an Predecessor
Fund shareholders holding period for his or her
Successor Fund Shares will be determined by including
the period for which he or she held the Predecessor
Fund Shares exchanged therefore, provide that he
or she held such Predecessor Fund Shares as capital
assets; and (ix) the Successor 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 Predecessor 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 the Successor
Trust and the Predecessor Trust. Notwithstanding
anything herein to the contrary, neither the Successor
Trust nor the Predecessor Trust may waive the condition
set forth in this paragraph 8.5.
8.6 The Assets will include no assets which
the Successor Fund, by reason of limitations contained
in Successor Trusts Declaration of Trust or of investment
restrictions disclosed in such Successor Funds current
prospectus and statement of additional information, as
supplemented, in effect on the Closing Date, may not
properly acquire.
9. INDEMNIFICATION
9.1 The Successor Trust, out of each Successor
Funds assets and property (including any amounts paid to
the Successor Trust pursuant to any applicable
liability insurance policies or indemnification agreements)
agrees to indemnify and hold harmless the Predecessor Trust
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 corresponding Predecessor 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 Successor 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 the Successor Trust or its Trustees or
officers prior to the Closing Date, provided that such
indemnification by the Successor Trust (or the Successor
Fund) is not (a) in violation of any applicable law or (b)
otherwise prohibited as a result of any applicable order
or decree issued by any governing regulatory authority
or court of competent jurisdiction.
9.2 The Predecessor Trust, out of each Predecessor
Funds assets and property (including any amounts paid to
the Predecessor Trust pursuant to any applicable
liability insurance policies or indemnification agreements)
agrees to indemnify and hold harmless the Successor
Trust 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 corresponding Successor 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 Predecessor
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 the
Predecessor Trust or its Trustees or officers prior to
the Closing Date, provided that such indemnification
by the Predecessor Trust (or the Predecessor Fund) is
not (a) in violation of any applicable law or (b)
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 The Successor Trust, on behalf of each
Successor Fund, and the Predecessor Trust, on behalf
of each Predecessor 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 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, preparing, printing
and distributing the Proxy Statement, legal fees, accounting
fees, securities registration fees, and costs of
holding shareholders meetings. 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 The Successor Trust and the Predecessor
Trust agree that neither party has made any representation,
warranty or covenant, on behalf of either a Successor
Fund or a Predecessor 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 Successor 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 Board of Trustees of the Successor Trust or the Board
of Trustees of the Predecessor Trust, 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 a Successor Fund or a
Predecessor Fund, respectively. In addition, this
Agreement shall be terminated with respect to each
Contingent Predecessor Fund, if the shareholders of such
Contingent Predecessor Fund approve the Primary
Reorganization of such Contingent Predecessor Fund and
such Primary Reorganization is consummated.
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 Predecessor
Trust and the Successor Trust.
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 the Successor
Trust or the Predecessor Trust, at the address 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, 000 Xxxxxxxx, 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 The warranties, representations, and
agreements contained in this Agreement made by Predecessor
Trust, on behalf of each of the Predecessor Funds, are made
on a several (and not joint, or joint and several) basis.
Similarly, the warranties, representations, and agreements
contained in this Agreement made by the Successor Trust,
on behalf of each of the Successor Funds, are made on a
several (and not joint, or joint and several) basis.
15.5 Pursuant to Rule 145 under the 1933 Act,
the Predecessor Fund will, in connection with the issuance
of any Successor 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 SUCCESSOR FUND
OR ITS PRINCIPAL UNDERWRITER UNLESS (i) A
REGISTRATION STATEMENT WITH RESPECT THERETO
IS EFECTIVE UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR (ii) IN THE OPINION OF
COUNSEL REASONABLY SATISFACTORY TO SUCCESSOR
FUND, SUCH REGISTRATION IS NOT REQUIRED;
[Remainder of Page Intentionally Left Blank]
and, further, the Predecessor Fund will issue stop
transfer instructions to its transfer agent with respect to
such Predecessor Fund Shares.
IN WITNESS WHEREOF, each of the parties hereto
has caused this Agreement to be executed by
its President or any Vice President.
X.X. XXXXXX MUTUAL FUND SERIES, on behalf of each
of its series listed in Exhibit A attached hereto
X.X. XXXXXX MUTUAL FUND GROUP, on behalf of each of
its series listed in Exhibit A attached hereto
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
X.X. XXXXXX INVESTMENT MANAGEMENT INC., with respect
to paragraph 10.2 only
By: _______________________________
Name:
Title:
Exhibit A
X.X. Xxxxxx Mutual Fund Group
X.X. Xxxxxx Mutual Fund Series
Predecessor Funds
Successor Funds
JPMorgan Capital Growth Fund -- Select, Class A,
Class B and Class C
JPMorgan Capital Growth Fund -- Select, Class A,
Class B and Class C
JPMorgan Dynamic Small Cap Fund -- Select, Class A,
Class B and Class C
JPMorgan Dynamic Small Cap Fund -- Select, Class A,
Class B and Class C
JPMorgan Xxxxxxx Asia Equity Fund -- Select,
Institutional and Class A
JPMorgan Xxxxxxx Asia Equity Fund -- Select,
Institutional and Class A
JPMorgan Xxxxxxx International Growth Fund --
Class A and Class B
JPMorgan Xxxxxxx International Growth Fund --
Class A and Class B
JPMorgan Xxxxxxx International Small Cap Equity
Fund -- Select, Institutional, Class A and
Class B
JPMorgan Xxxxxxx International Small Cap Equity
Fund -- Select, Institutional, Class A and
Class B
JPMorgan Xxxxxxx Intrepid European Fund --
Select, Institutional, Class A, Class B
and Class C
JPMorgan Xxxxxxx Intrepid European Fund --
Select, Institutional, Class A, Class B
and Class C
JPMorgan Xxxxxxx Japan Fund -- Class A
and Class B
JPMorgan Xxxxxxx Japan Fund -- Class A
and Class B
JPMorgan Xxxxxxx Tax Aware International
Opportunities Fund -- Institutional and
Class A
JPMorgan Xxxxxxx Tax Aware International
Opportunities Fund -- Institutional and
Class A
JPMorgan Growth and Income Fund -- Select,
Class A, Class B and Class C
JPMorgan Growth and Income Fund -- Select,
Class A, Class B and Class C
JPMorgan Select Growth and Income Fund*
JPMorgan Select Growth and Income Fund*
JPMorgan Short Term Bond Fund II --
Select, Class A and Class M
JPMorgan Short Term Bond Fund II --
Select, Class A and Class M
JPMorgan Small Cap Equity Fund --
Select, Class A, Class B and Class C
JPMorgan Small Cap Equity Fund --
Select, Class A, Class B and Class C
JPMorgan Strategic Income Fund --
Class A, Class B, Class C and Class M
JPMorgan Strategic Income Fund --
Class A, Class B, Class C and Class M
JPMorgan U.S. Treasury Income Fund --
Select, Class A and Class B
JPMorgan U.S. Treasury Income Fund --
Select, Class A and Class B
Contingent Predecessor Funds
JPMorgan Strategic Income Fund
JPMorgan U.S. Treasury Income Fund
Schedule 4.1
None.
Schedule 4.2
None.
* The parties have agreed that the JPMorgan
Select Growth and Income Fund will no longer be
a part of this Agreement if, and to the extent
that, all of the shares of that Predecessor Fund
are redeemed by shareholders of the Predecessor
Fund prior to February 18, 2005 and no assets
remain in that Predecessor Fund on
February 18, 2005.
29
278996.1.03
- 26 -
27
