ONE GROUP MUTUAL FUNDS
▇.▇. ▇▇▇▇▇▇ MUTUAL FUND SELECT 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 Bond Fund
("Acquiring Fund"), and ▇.▇. ▇▇▇▇▇▇ Mutual Fund Select
Group, a Massachusetts business trust ("Acquired Fund
Company"), with its principal place of business at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on behalf of its
series, JPMorgan Bond Fund II ("Acquired Fund").
WHEREAS, each of the Acquired Fund and the Acquiring
Fund is a series of an open-end, investment company of
the management type registered pursuant to the Investment
Company Act of 1940 ("1940 Act");
WHEREAS, this Agreement is intended to be and is
adopted as a plan of reorganization and liquidation
within the meaning of Section 368(a)(1) of the United
States Internal Revenue Code of 1986, as amended
("Code");
WHEREAS, the contemplated reorganization and liquidation
will consist of (1) the sale, assignment, conveyance,
transfer and delivery of all of the property and assets
of the Acquired Fund to the Acquiring Fund in exchange
solely for classes of shares of beneficial interest of
the Acquiring Fund ("Acquiring Fund Shares") corresponding
to the classes of outstanding shares of beneficial
interest of the Acquired Fund ("Acquired Fund Shares"),
as described herein, (2) the assumption by the Acquiring
Fund of all liabilities of the Acquired Fund, and (3)
the distribution of the Acquiring Fund Shares to the
shareholders of the Acquired Fund in complete liquidation
of the Acquired Fund, as provided herein
("Reorganization"), all upon the terms and conditions
hereinafter set forth in this Agreement;
WHEREAS, the Acquired Fund currently owns securities that
are substantially similar to the those in which the
Acquiring Fund is permitted to invest;
WHEREAS, the Trustees of OGMF have determined, with
respect to the Acquiring Fund, that the sale,
assignment, conveyance, transfer and delivery of all of
the property and assets of the Acquired Fund for Acquiring
Fund Shares and the assumption of all liabilities of the
Acquired Fund by the Acquiring Fund is in the best interests
of the Acquiring Fund and that the interests of the
existing shareholders of the Acquiring Fund would not be
diluted as a result of this transaction; and
WHEREAS, the Trustees of Acquired Fund Company have
determined, with respect to the Acquired Fund, that the
sale, assignment, conveyance, transfer and delivery of
all of the property and assets of the Acquired Fund for
Acquiring Fund Shares and the assumption of all liabilities
of the Acquired Fund by the Acquiring Fund is in the best
interests of the Acquired Fund and that the interests of
the existing shareholders of the Acquired Fund would not
be diluted as a result of this transaction;
NOW, THEREFORE, in consideration of the premises and of
the covenants and agreements hereinafter set forth, the
parties hereto covenant and agree as follows:
1. TRANSFER OF ASSETS OF THE ACQUIRED FUND TO THE
ACQUIRING FUND IN EXCHANGE FOR ACQUIRING FUND SHARES,
THE ASSUMPTION OF ALL ACQUIRED FUND LIABILITIES AND THE
LIQUIDATION OF THE ACQUIRED FUND
1.1. Subject to requisite approvals and the other terms
and conditions herein set forth and on the basis of the
representations and warranties contained herein, Acquired
Fund Company, on behalf of the Acquired Fund, agrees to
sell, assign, convey, transfer and deliver all of its
property and assets, as set forth in paragraph 1.2, to
the Acquiring Fund, and OGMF, on behalf of the Acquiring
Fund, agrees in exchange therefor: (a) to deliver to the
Acquired Fund the number of full and fractional Acquiring
Fund Shares corresponding to each class of the Acquired
Fund Shares as of the time and date set forth in paragraph
3.1, determined by dividing the value of the Acquired
Funds net assets with respect to each class of the
Acquired Fund (computed in the manner and as of the time
and date set forth in paragraph 2.1) by the net asset
value of one share of the corresponding class of Acquiring
Fund Shares (computed in the manner and as of the time
and date set forth in paragraph 2.2); and (b) to assume
all liabilities of the Acquired Fund, as set forth in
paragraph 1.3. Such transactions shall take place on the
date of the closing provided for in paragraph 3.1
("Closing Date"). For purposes of this Agreement, the
Class A shares of the Acquired Fund correspond to the
Class A shares of the Acquiring Fund, the Class B shares
of the Acquired Fund correspond to the Class B shares of
the Acquiring Fund, the Select Class shares of the
Acquired Fund correspond to the Class I shares (to be
renamed Select Class shares) of the Acquiring Fund, and
the term Acquiring Fund Shares should be read to include
each such class of shares of the Acquiring Fund.
1.2. The property and assets of Acquired Fund Company
attributable to the Acquired Fund and to be sold, assigned,
conveyed, transferred and delivered to and acquired by
OGMF, on behalf of the Acquiring Fund, shall consist of
all assets and property, including, without limitation,
all rights, cash, securities, commodities and futures
interests and dividends or interests receivable that are
owned by the Acquired Fund and any deferred or prepaid
expenses shown as an asset on the books of the Acquired
Fund on the Valuation Date as defined in paragraph 2.1
(collectively, "Assets"). The Acquired Fund will sell,
assign, convey, transfer and deliver to the Acquiring Fund
any rights, stock dividends, or other securities received
by the Acquired Fund after the Closing Date as stock
dividends or other distributions on or with respect to the
property and assets transferred, which rights, stock
dividends, and other securities shall be deemed included in
the property and assets transferred to the Acquiring Fund
at the Closing Date and shall not be separately valued, in
which case any such distribution that remains unpaid as of
the Closing Date shall be included in the determination of
the value of the assets of the Acquired Fund acquired by
the Acquiring Fund.
1.3. The Acquired Fund will make reasonable efforts to
discharge all of its known liabilities and obligations
prior to the Valuation Date. OGMF, on behalf of the Acquiring
Fund, shall assume all of the liabilities of the Acquired
Fund, whether accrued or contingent, known or unknown,
existing at the Valuation Date (collectively, "Liabilities").
On or as soon as practicable prior to the Closing Date, the
Acquired Fund will declare and pay to its shareholders of
record one or more dividends and/or other distributions so
that it will have distributed substantially all (and in no
event less than 98%) of its investment company taxable
income (computed without regard to any deduction for
dividends paid) and realized net capital gain, if any,
for the current taxable year through the Closing Date.
1.4. Immediately following the actions contemplated by
paragraph 1.1, Acquired Fund Company shall take such actions
necessary to complete the liquidation of the Acquired Fund.
To complete the liquidation, Acquired Fund Company, on behalf
of the Acquired Fund, shall (a) distribute to its
shareholders of record with respect to each class of Acquired
Fund Shares as of the Closing Date, as defined in
paragraph 3.1 ("Acquired Fund Shareholders"), on a pro
rata basis within that class, the Acquiring Fund Shares
of the corresponding class received by Acquired Fund Company,
on behalf of the Acquired Fund, pursuant to paragraph 1.1
and (b) completely liquidate. Such liquidation shall be
accomplished, with respect to each class of Acquired Fund
Shares, by the transfer of the corresponding Acquiring Fund
Shares then credited to the account of the Acquired Fund on
the books of the Acquiring Fund to open accounts on the
share records of the Acquiring Fund in the names of the
Acquired Fund Shareholders. The aggregate net asset value
of each class of Acquiring Fund Shares to be so credited
to the corresponding class of Acquired Fund Shareholders
shall, with respect to each class, be equal to the aggregate
net asset value of the Acquired Fund Shares of the
corresponding class owned by Acquired Fund Shareholders on
the Closing Date. All issued and outstanding Acquired Fund
Shares will be canceled on the books of the Acquired Fund.
The Acquiring Fund shall not issue certificates representing
any class of Acquiring Fund Shares in connection with such
exchange.
1.5. Ownership of Acquiring Fund Shares will be shown on the
books of the Acquiring Funds transfer agent.
1.6. Any reporting responsibility of the Acquired Fund,
including, but not limited to, the responsibility for
filing regulatory reports, tax returns, or other documents
with the Securities and Exchange Commission ("Commission"),
any state securities commission, and any federal, state or
local tax authorities or any other relevant regulatory
authority, is and shall remain the responsibility of the
Acquired Fund.
2. VALUATION
2.1. The value of the Assets shall be determined as of
the time for calculation of the net asset value of the
Acquired Fund as set forth in its then-current prospectus,
and after the declaration of any dividends by the Acquired
Fund, on the Closing Date (such time and date being
hereinafter called the "Valuation Date"), computed using
the valuation procedures set forth in the then-current
prospectus and statement of additional information, as
supplemented, with respect to the Acquired Fund and
valuation procedures established by Acquired Fund Companys
Board of Trustees. All computations of value shall be
made by JPMorgan Chase Bank, N.A., in its capacity as
fund accountant for the Acquired Fund.
2.2. The net asset value per share of each class of
Acquiring Fund Shares shall be determined to the nearest
full cent as of the time for calculation of the net asset
value of the Acquiring Fund as set forth in its then-current
prospectus on the Closing Date, using the valuation
procedures set forth in the then-current prospectus and
statement of additional information, as supplemented, with
respect to the Acquiring Fund and valuation procedures
established by OGMFs Board of Trustees. All computations
of value shall be made by ▇.▇. ▇▇▇▇▇▇ 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 the Acquiring Fund Trust) 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 the Acquiring
Fund Trust) 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 shareholders of the Acquiring Fund shall not
constitute a material adverse change.
(i) On the Closing Date, all federal and other tax
returns, dividend reporting forms, and other tax-related
reports of the Acquiring Fund required
by law to have been filed by such date
(including any extensions) shall have been filed and
are or will be correct in all material respects, and
all federal and other taxes shown
as due or required to be shown as due on said returns
and reports shall have been paid or
provision shall have been made for the payment thereof
and, to the best of OGMFs knowledge,
no such return is currently under audit and no assessment
has been asserted with respect to such returns.
(j) For each taxable year of its operation (including the
taxable year that includes the Closing Date), the Acquiring
Fund has met (or will meet)
the requirements of Subchapter M of the Code for
qualification and treatment as a regulated
investment company, has elected to be treated as such,
and has been (or will be) eligible to and has computed
(or will compute) its federal income tax under Section
852 of the Code,
and will have distributed substantially all of its (i)
investment company taxable
income (computed without regard to any deduction for
dividends paid) and (ii) net capital
gain (after reduction for any capital loss carryover)
(as defined in the Code) for periods ending
prior to the Closing Date.
(k) All of the issued and outstanding Acquiring Fund Shares
are, and on the Closing Date will be, duly authorized and
validly and legally issued and
outstanding, fully paid and non-assessable by OGMF and
will have been offered and sold
in every state, territory and the District of Columbia
in compliance in all material respects
with applicable registration requirements of all
applicable federal and state securities
laws. The Acquiring Fund does not have outstanding
any options, warrants or other rights
to subscribe for or purchase any Acquiring Fund Shares,
nor is there outstanding any
security convertible into any Acquiring Fund Shares.
All of the Acquiring Fund Shares to be issued
and delivered to the Acquired Fund, for the account of
the Acquired Fund Shareholders,
pursuant to this Agreement will on the Closing Date have
been duly authorized and, when so
issued and delivered, will be duly and validly and
legally issued Acquiring fund Shares and be
fully paid and non-assessable by OGMF.
(l) The execution, delivery and performance of this
Agreement, and the transactions contemplated herein,
have been duly authorized by all
necessary action on the part of the Board of Trustees
of OGMF, and this Agreement constitutes a
valid and binding obligation of OGMF, on behalf of
the Acquiring Fund, enforceable in
accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting
creditors rights and to general equity principles.
(m) The Proxy Statement to be included in the Registration
Statement, insofar as it relates to the Acquiring Fund,
OGMF and the Acquiring Fund Shares,
will from the effective date of the Registration Statement
through the date of the meeting
of shareholders of the Acquired Fund contemplated therein
and on the Closing Date (i) not
contain any untrue statement of a material fact or omit
to state a material fact required to
be stated therein or necessary to make the statements
therein, in light of the circumstances
under which such statements were made, not materially
misleading (provided that this
representation and warranty shall not apply to statements
in or omissions from the Proxy Statement
made in reliance upon and in conformity with information
that was furnished by the
Acquired Fund for use therein) and (ii) comply in all
material respects with the provisions of
the 1933 Act, the 1934 Act and the 1940 Act and the
rules and regulations thereunder.
The information to be furnished by the Acquiring Fund
for use in registration statements and
other documents filed or to be filed with any federal,
state or local regulatory authority
(including the National Association of Securities
Dealers, Inc.), which may be
necessary in connection with the transactions contemplated
hereby, shall be accurate and complete in all material
respects and shall comply in all material respects with
federal securities and other laws and regulations
thereunder applicable thereto.
5. COVENANTS
Acquired Fund Company, on behalf of the Acquired Fund,
and OGMF, on behalf of the Acquiring Fund, respectively,
hereby further covenant as follows:
5.1. The Acquired Fund and the Acquiring Fund each will
operate its business in the ordinary course between the date
hereof and the Closing Date, it being understood that such
ordinary course of business will include the declaration
and payment of customary dividends and distributions, and
any other distribution that may be advisable.
5.2. Acquired Fund Company will call a meeting of the
shareholders of the Acquired Fund to consider and act upon
this Agreement and to take all other action necessary to
obtain approval of the transactions contemplated herein.
5.3. The Acquired Fund covenants that the Acquiring Fund
Shares to be issued hereunder are not being acquired for the
purpose of making any distribution thereof, other than in
accordance with the terms of this Agreement.
5.4. The Acquired Fund will assist the Acquiring Fund in
obtaining such information as the Acquiring Fund reasonably
requests concerning the
beneficial ownership of the Acquired Fund Shares.
5.5. Subject to the provisions of this Agreement, each of
the Acquiring Fund and the Acquired Fund covenant to take, or
cause to be taken, all action, and do or cause to be done, all
things reasonably necessary, proper or advisable
to consummate and make effective the transactions
contemplated by this Agreement.5.6. OGMF shall prepare and
file a Registration Statement on Form N-14 in compliance with
the 1933 Act, the 1934 Act and the 1940 Act and the rules
and regulations thereunder with respect to the Reorganization
("Registration Statement"). The Acquired Fund will provide
to the Acquiring Fund such information regarding the Acquired
Fund as may be reasonably necessary for the preparation of
the Registration Statement.
5.7. Each of the Acquiring Fund and the Acquired Fund
covenant to use its reasonable best efforts to fulfill or
obtain the fulfillment of the conditions
precedent to effect the transactions contemplated by
this Agreement as promptly as practicable.
5.8. Acquired Fund Company, on behalf of the Acquired
Fund, covenants that it will, from time to time, as and
when reasonably requested by OGMF,
execute and deliver or cause to be executed and delivered
all such assignments and other
instruments and will take or cause to be taken such further
action as OGMF, on behalf of the
Acquiring Fund, may reasonably deem necessary or desirable
in order to vest in and confirm
(a) Acquired Fund Companys title to and possession of the
Acquiring Fund Shares to be delivered
hereunder and (b) OGMFs title to and possession of all the
Assets and otherwise to carry
out the intent and purpose of this Agreement.
5.9. The Acquiring Fund covenants to use all reasonable
efforts to obtain the approvals and authorizations required
by the 1933 Act, the 1940 Act and
such of the state blue sky or securities laws as may be
necessary in order to continue
its operations after the Closing Date.
5.10. The Acquiring Fund shall not change its Declaration
of Trust, prospectus or statement of additional
information prior to Closing so as to
restrict permitted investments for the Acquiring Fund
prior to Closing, except as required by the Commission.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF ACQUIRED
FUND
The obligations of Acquired Fund Company, on behalf
of the Acquired Fund, to consummate the transactions
provided for herein shall be subject,
at Acquired Fund Companys election, to the performance
by OGMF, on behalf of the Acquiring
Fund, of all the obligations to be performed by it
hereunder on or before the Closing
Date, and, in addition thereto, the following further
conditions:
6.1. All representations and warranties of OGMF, on
behalf of the Acquiring Fund, contained in this Agreement
shall be true and correct in all
material respects as of the date hereof and, except as
they may be affected by the transactions
contemplated by this Agreement, as of the Closing Date,
with the same force and effect
as if made on and as of the Closing Date.
6.2. OGMF, on behalf of the Acquiring Fund, shall have
performed all of the covenants and complied with all
of the provisions required by this
Agreement to be performed or complied with by OGMF, on
behalf of the Acquiring Fund, on or before the Closing Date.
6.3. OGMF shall have executed and delivered an assumption
of the Liabilities and all such other agreements and
instruments as Acquired Fund Company
may reasonably deem necessary or desirable in order to vest
in and confirm (a) Acquired
Fund Companys title to and possession of the Acquiring
Fund Shares to be delivered
hereunder and (b) OGMFs assumption of all of the Liabilities
and otherwise to carry out the
intent and purpose of this Agreement.
6.4. OGMF, on behalf of the Acquiring Fund, shall have
delivered to the Acquired Fund a certificate executed in the
name of OGMF, on behalf of the
Acquiring Fund, by OGMFs President or Vice President and
its Treasurer or Assistant Treasurer, in a form reasonably
satisfactory to Acquired Fund Company and dated as of the
Closing Date, as to the matters set forth in paragraphs
6.1 and 6.2 and as to such other
matters as Acquired Fund Company shall reasonably request.
6.5. The Acquired Fund and the Acquiring Fund shall
have agreed on the number of full and fractional Acquiring
Fund Shares to be issued in
connection with the Reorganization after such number has
been calculated in accordance with paragraph 1.1.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF ACQUIRING FUND
The obligations of OGMF, on behalf of the Acquiring Fund,
to consummate the transactions provided for herein
shall be subject, at OGMFs election,
to the performance by Acquired Fund Company, on behalf
of the Acquired Fund, of all of
the obligations to be performed by it hereunder on or
before the Closing Date and, in addition
thereto, the following further conditions:
7.1. All representations and warranties of Acquired
Fund Company, on behalf of the Acquired Fund, contained in
this Agreement shall be true and correct
in all material respects as of the date hereof and,
except as they may be affected by the
transactions contemplated by this Agreement, as of the
Closing Date, with the same force
and effect as if made on and as of the Closing Date.
7.2. Acquired Fund Company, on behalf of the Acquired
Fund, shall have performed all of the covenants and
complied with all of the provisions required
by this Agreement to be performed or complied with by
Acquired Fund Company, on behalf of
the Acquired Fund, on or before the Closing Date.
7.3. Acquired Fund Company shall have delivered to the
Acquiring Fund a statement of the Assets and Liabilities,
as of the Closing Date, including
a schedule of investments, certified by the Treasurer of
Acquired Fund Company.
Acquired Fund Company shall have executed and delivered all
such assignments and other
instruments of transfer as OGMF may reasonably deem necessary
or desirable in order to vest in
and confirm (a) Acquired Fund Companys title to and
possession of the Acquiring Fund
Shares to be delivered hereunder and (b) OGMFs title
to and possession of all the Assets and
otherwise to carry out the intent and purpose of this
Agreement.
7.4. Acquired Fund Company, on behalf of the Acquired Fund,
shall have delivered to OGMF a certificate executed in
the name of Acquired Fund Company,
on behalf of the Acquired Fund, by Acquired Fund Companys
President or Vice President
and its Treasurer or Assistant Treasurer, in a form
reasonably satisfactory to OGMF and
dated as of the Closing Date, as to the matters set forth
in paragraphs 7.1 and 7.2 and as to such other matters
as OGMF shall reasonably request.
7.5. The Acquired Fund and the Acquiring Fund shall have
agreed on the number of full and fractional Acquiring
Fund Shares to be issued in
connection with the Reorganization after such number has
been calculated in accordance with paragraph 1.1.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF
ACQUIRING FUND AND ACQUIRED FUND
If any of the conditions set forth below have not
been satisfied on or before the Closing Date with respect
to Acquired Fund Company, on behalf
of the Acquired Fund, or OGMF, on behalf of the
Acquiring Fund, the other party to this
Agreement shall be entitled, at its option, to refuse
to consummate the transactions
contemplated by this Agreement:
8.1. This Agreement and the transactions contemplated
herein shall have been approved by the requisite vote
of the holders of the outstanding shares
of the Acquired Fund in accordance with the provision
of the Charter and by-laws of
Acquired Fund Company, applicable state law and the
1940 Act, and certified copies of the resolutions
evidencing such approval shall have been delivered
to the Acquiring Fund.
Notwithstanding anything herein to the contrary,
neither OGMF nor Acquired Fund Company may waive the
condition set forth in this paragraph 8.1.
8.2. On the Closing Date no action, suit or other
proceeding shall be pending or, to OGMFs or to
Acquired Fund Companys knowledge, threatened
before any court or governmental agency in which
it is sought to restrain or prohibit, or
obtain damages or other relief in connection with,
this Agreement or the transactions contemplated herein.
8.3. All consents of other parties and all other
consents, orders and permits of federal, state and
local regulatory authorities deemed necessary
by OGMF or Acquired Fund Company to permit consummation,
in all material respects, of the
transactions contemplated hereby shall have been obtained,
except where failure to obtain any
such consent, order or permit would not involve a risk
of a material adverse effect on the
assets or properties of the Acquiring Fund or the
Acquired Fund, provided that either party
hereto may for itself waive any of such conditions.
8.4. The Registration Statement shall have become
effective under the 1933 Act and no stop orders
suspending the effectiveness thereof shall have
been issued and, to the best knowledge of the parties
hereto, no investigation or
proceeding for that purpose shall have been
instituted or be pending, threatened or contemplated
under the ▇▇▇▇ ▇▇▇.
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 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 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 ▇▇▇▇▇▇.▇▇ WITNESS WHEREOF, each of the
parties hereto has caused this Agreement to be executed
by its President or any Vice ▇▇▇▇▇▇▇▇▇.▇▇▇ GROUP MUTUAL
FUNDS, on behalf of its series,One Group Bond Fund ▇.▇.
▇▇▇▇▇▇ MUTUAL FUND SELECT GROUPon behalf of its series,
JPMorgan Bond Fund II
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.
11
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