ONE GROUP MUTUAL FUNDS
▇.▇. ▇▇▇▇▇▇ MUTUAL FUND TRUST
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (Agreement)
is made as of this 22nd day of November, 2004, by
and between One Group Mutual Funds, a Massachusetts
business trust (OGMF), with its principal place of
business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, on behalf of its series, One Group Prime
Money Market Fund (Acquiring Fund), and ▇.▇. ▇▇▇▇▇▇
Mutual Fund Trust, a Massachusetts business trust
(Acquired Fund Company), with its principal place
of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, on behalf of its series, JPMorgan Liquid
Assets Money Market Fund (Acquired Fund).
WHEREAS, each of the Acquired Fund and the Acquiring
Fund is a series of an open-end, investment company
of the management type registered pursuant to the
Investment Company Act of 1940 (1940 Act);
WHEREAS, this Agreement is intended to be and is
adopted as a plan of reorganization and liquidation
within the meaning of Section 368(a)(1) of the
United States Internal Revenue Code of 1986, as
amended (Code);
WHEREAS, the contemplated reorganization and
liquidation will consist of (1) the sale, assignment,
conveyance, transfer and delivery of all of the
property and assets of the Acquired Fund to the
Acquiring Fund in exchange solely for classes of
shares of beneficial interest of the Acquiring
Fund (Acquiring Fund Shares) corresponding to the
classes of outstanding shares of beneficial
interest of the Acquired Fund (Acquired Fund Shares),
as described herein, (2) the assumption by the
Acquiring Fund of all liabilities of the Acquired
Fund, and (3) the distribution of the Acquiring Fund
Shares to the shareholders of the Acquired Fund
in complete liquidation of the Acquired Fund, as
provided herein (Reorganization), all upon the
terms and conditions hereinafter set forth in
this Agreement;
WHEREAS, the Acquired Fund currently owns securities
that are substantially similar to the those in
which the Acquiring Fund is permitted to invest;
WHEREAS, the Trustees of OGMF have determined, with
respect to the Acquiring Fund, that the sale,
assignment, conveyance, transfer and delivery of
all of the property and assets of the Acquired
Fund for Acquiring Fund Shares and the assumption
of all liabilities of the Acquired Fund by the
Acquiring Fund is in the best interests of the
Acquiring Fund and that the interests of the
existing shareholders of the Acquiring Fund would
not be diluted as a result of this transaction; and
WHEREAS, the Trustees of Acquired Fund Company have
determined, with respect to the Acquired Fund, that
the sale, assignment, conveyance, transfer and
delivery of all of the property and assets of the
Acquired Fund for Acquiring Fund Shares and the
assumption of all liabilities of the Acquired Fund
by the Acquiring Fund is in the best interests of
the Acquired Fund and that the interests of the
existing shareholders of the Acquired Fund would
not be diluted as a result of this transaction;
NOW, THEREFORE, in consideration of the premises
and of the covenants and agreements hereinafter
set forth, the parties hereto covenant and agree
as follows:
1. TRANSFER OF ASSETS OF THE ACQUIRED FUND TO THE
ACQUIRING FUND IN EXCHANGE FOR ACQUIRING FUND
SHARES, THE ASSUMPTION OF ALL ACQUIRED FUND
LIABILITIES AND THE LIQUIDATION OF THE ACQUIRED
FUND
1.1. Subject to requisite approvals and the other
terms and conditions herein set forth and on the
basis of the representations and warranties contained
herein, Acquired Fund Company, on behalf of the
Acquired Fund, agrees to sell, assign, convey,
transfer and deliver all of its property and assets,
as set forth in paragraph 1.2, to the Acquiring Fund,
and OGMF, on behalf of the Acquiring Fund, agrees in
exchange therefor: (a) to deliver to the Acquired Fund
the number of full and fractional Acquiring Fund
Shares corresponding to each class of the Acquired
Fund Shares as of the time and date set forth in
paragraph 3.1, determined by dividing the value of the
Acquired Funds net assets with respect to each class of
the Acquired Fund (computed in the manner and as of the
time and date set forth in paragraph 2.1) by the net
asset value of one share of the corresponding class
of Acquiring Fund Shares (computed in the manner and
as of the time and date set forth in paragraph 2.2);
and (b) to assume all liabilities of the Acquired Fund,
as set forth in paragraph 1.3. Such transactions
shall take place on the date of the closing provided
for in paragraph 3.1 (Closing Date). For purposes
of this Agreement, the Agency Class shares of the
Acquired Fund correspond to the Agency Class shares
of the Acquiring Fund, the Institutional Class
shares (to be renamed Capital Class shares) of the
Acquired Fund correspond to the Capital Class shares
of the Acquiring Fund, the ▇▇▇▇▇▇ Class shares of the
Acquired Fund correspond to the ▇▇▇▇▇▇ Class shares
of the Acquiring Fund, the Premier Class shares of the
Acquired Fund correspond to the Premier Class shares
of the Acquiring Fund, and the term Acquiring Fund
Shares should be read to include each such class of
shares of the Acquiring Fund.
1.2. The property and assets of Acquired Fund Company
attributable to the Acquired Fund and to be sold,
assigned, conveyed, transferred and
delivered to and acquired by OGMF, on behalf of the
Acquiring Fund, shall consist of all assets and
property, including, without limitation, all rights,
cash, securities, commodities
and futures interests and dividends or interests
receivable that are owned by the Acquired Fund
and any deferred or prepaid expenses shown as an
asset on the books of the
Acquired Fund on the Valuation Date as defined in
paragraph 2.1 (collectively, Assets).
The Acquired Fund will sell, assign, convey,
transfer and deliver to the Acquiring Fund
any rights, stock dividends, or other securities
received by the Acquired Fund after the
Closing Date as stock dividends or other
distributions on or with respect to the property and
assets transferred, which rights, stock dividends,
and other securities shall be deemed
included in the property and assets transferred to
the Acquiring Fund at the Closing Date
and shall not be separately valued, in which case
any such distribution that remains unpaid
as of the Closing Date shall be included in the
determination of the value of the
assets of the Acquired Fund acquired by the
Acquiring Fund.
1.3. The Acquired Fund will make reasonable
efforts
to discharge all of its known liabilities and
obligations prior to the Valuation
Date. OGMF, on behalf of the Acquiring Fund,
shall assume all of the liabilities of the
Acquired Fund, whether accrued or contingent,
known or unknown, existing at the Valuation
Date (collectively, Liabilities). On or as
soon as practicable prior to the Closing
Date, the Acquired Fund will declare and pay
to its shareholders of record one or more dividends
and/or other distributions so that it will
have distributed substantially all (and in no
event less than 98%) of its investment company
taxable income (computed without regard to any
deduction for dividends paid) and realized net
capital gain, if any, for the current
taxable year through the Closing Date.
1.4. Immediately following the actions
contemplated by
paragraph 1.1, Acquired Fund Company shall
take such actions necessary to complete the
liquidation of the Acquired Fund. To complete
the liquidation, Acquired Fund Company, on
behalf of the Acquired Fund, shall (a)
distribute to its shareholders of record
with respect
to each class of Acquired Fund Shares as of
the Closing Date, as defined in paragraph 3.1
(Acquired Fund Shareholders), on a pro rata
basis within that class, the Acquiring Fund
Shares of the corresponding class received
by Acquired Fund Company, on behalf of the
Acquired
Fund, pursuant to paragraph 1.1 and (b)
completely liquidate. Such liquidation shall
be
accomplished, with respect to each class of
Acquired Fund Shares, by the transfer of the
corresponding Acquiring Fund Shares then credited
to the account of the Acquired Fund on the
books of the Acquiring Fund to open accounts on
the share records of the Acquiring Fund
in the names of the Acquired Fund Shareholders.
The aggregate net asset value of each
class of Acquiring Fund Shares to be so
credited to the corresponding class of Acquired
Fund Shareholders shall, with respect to
each class, be equal to the aggregate net
asset
value of the Acquired Fund Shares of the
corresponding class owned by Acquired Fund
Shareholders
on the Closing Date. All issued and
outstanding Acquired Fund Shares will
be canceled on
the books of the Acquired Fund. The Acquiring
Fund shall not issue certificates representing
any class of Acquiring Fund Shares in
connection with such exchange.
1.5. Ownership of Acquiring Fund Shares
will be shown
on the books of the Acquiring Funds
transfer agent.
1.6. Any reporting responsibility of the
Acquired Fund,
including, but not limited to, the
responsibility for filing regulatory reports, tax
returns, or other documents with the Securities
and Exchange Commission (Commission),
any state securities commission, and any
federal, state or local tax authorities or any other
relevant regulatory authority, is and shall
remain the responsibility of the Acquired Fund.
2. VALUATION
2.1. The value of the Assets shall be determined
as
of the time for calculation of the net asset
value of the Acquired Fund as set forth in its
then-current prospectus, and after the
declaration of any dividends by the Acquired Fund,
on the Closing Date (such time and date
being hereinafter called the Valuation Date),
computed using the valuation procedures
set forth in the then-current prospectus and statement
of additional information, as supplemented, with respect
to the Acquired Fund and
valuation procedures established by Acquired
Fund Companys Board of Trustees. All
computations of value shall be made by JPMorgan
Chase Bank, N.A., in its capacity as
fund accountant for the Acquired Fund.
2.2. The net asset value per share of each class
of Acquiring Fund Shares shall be determined
to the nearest full cent as of the time
for calculation of the net asset value of the
Acquiring Fund as set forth in its then-current
prospectus on the Closing Date, using the valuation
procedures set forth in the then-current
prospectus and statement of additional information,
as supplemented, with respect
to the Acquiring Fund and valuation procedures
established by OGMFs Board of Trustees.
All computations of value shall be made by ▇.▇.
▇▇▇▇▇▇ 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 ▇▇▇▇▇
▇▇▇▇ 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 recentAnnual 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 bee
n 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 a
ny 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 materia
l 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 withrespect
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 agr
eements 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
PRIME MONEY MARKET 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 PRIME MONEY MARKET FUND, SUCH
REGISTRATION IS NOT REQUIRED;
[Remainder of Page Intentionally Left Blank]
and, further, the Acquired Fund will issue stop
transfer instructions to its transfer agent with
respect to such Acquired Fund Shares.
IN WITNESS WHEREOF, each of the parties hereto has
caused this Agreement to be executed by its
President or any Vice President.
ONE GROUP MUTUAL FUNDS,
on behalf of its series,
One Group Prime Money Market Fund
▇.▇. ▇▇▇▇▇▇ MUTUAL FUND TRUST
on behalf of its series,
JPMorgan Liquid Assets Money Market 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.
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