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