THIS AGREEMENT AND PLAN OF REORGANIZATION
(Agreement) is made as of this 22nd day of
November, 2004, by and between ▇.▇. ▇▇▇▇▇▇
Mutual Fund Select Group, a Massachusetts
business trust (JPMorgan), with its principal
place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on behalf of its series,
JPMorgan ▇▇▇▇▇▇▇ International Equity Fund
(Acquiring Fund), and One Group Mutual Funds,
a Massachusetts business trust (OGMF), with
its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, on
behalf of its series, One Group Diversified
International 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 JPMorgan 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 OGMF 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,
OGMF, 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 JPMorgan, 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 Class C shares of
the Acquired Fund correspond to the Class C shares
of the Acquiring Fund, the Class I shares (to be
renamed Select Class shares) of the Acquired Fund
correspond to the 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 OGMF attributable
to the Acquired Fund and to be sold, assigned,
conveyed, transferred and delivered to and
acquired by JPMorgan, 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. JPMorgan,
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, OGMF shall take such actions
necessary to complete the liquidation of the
Acquired Fund. To complete the liquidation, OGMF,
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
OGMF, 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 OGMFs Board of
Trustees. All computations of value shall
be made by ▇.▇. ▇▇▇▇▇▇ Investor Services Co.,
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 JPMorgans Board of
Trustees. All computations of value shall be
made by JPMorgan Chase Bank, N.A., 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
JPMorgan or at such other time and/or place
as the parties may agree.
3.2. OGMF shall direct JPMorgan Chase Bank,
N.A., as custodian for the Acquired Fund
(Acquired Fund Custodian), to deliver to
JPMorgan, 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. OGMF shall direct the transfer agent for
the Acquired Fund (Transfer Agent) to deliver to
JPMorgan 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 JPMorgan with respect
to the Acquiring Fund and the Board of Trustees
of OGMF 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
JPMorgan in Schedule 4.1 to this Agreement,
OGMF, on behalf of the Acquired Fund,
represents and warrants to JPMorgan as follows:
(a) The Acquired 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 power under its Declaration of Trust, 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. 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
4.1(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 Acquiring
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 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, OGMF, 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,
JPMorgan, 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
OGMFs Charter or Code of Regulations or of
any agreement, indenture, instrument,
contract, lease or other undertaking to which
OGMF, 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 OGMF, 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) Except as disclosed in Schedule 4.1 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 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. Except as disclosed in
Schedule 4.1 to this Agreement, OGMF, 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 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 JPMorgan) present fairly,
in all material respects, the financial
condition of the Acquired Fund as of such date
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 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
Acquired Fund at December 31, 2004 (unaudited),
will be when sent to Acquired 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
JPMorgan) will present fairly, in all material
respects, the financial condition of the Acquired
Fund as of such date 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 will be
disclosed therein.
(j) Since June 30, 2004, 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 indebtedness incurred 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
OGMFs 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 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. 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 action on the part of the
Board of Trustees of OGMF, 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 OGMF, 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 OGMF, 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
OGMF in Schedule 4.2 to this Agreement,
JPMorgan, on behalf of the Acquiring Fund,
represents and warrants to OGMF as follows:
(a) The Acquiring Fund is duly established
as a series of JPMorgan, which is a business
trust duly organized, existing, and in good
standing under the laws of the Commonwealth
of Massachusetts with the power under
JPMorgans Declaration of Trust to own all
of its properties and assets and to carry
on its business as contemplated by this
Agreement. JPMorgan 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.
JPMorgan 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 JPMorgan 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 JPMorgan personally, but bind only the
assets of JPMorgan and all persons dealing
with any series or fund of JPMorgan, such as
the Acquired Fund, must look solely to the
assets of JPMorgan belonging to such series
or fund for the enforcement of any claims
against JPMorgan.
(b) JPMorgan 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 JPMorgans Declaration of Trust or
by-laws or of any agreement, indenture,
instrument, contract, lease or other undertaking
to which JPMorgan, 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 JPMorgan, on
behalf of the Acquiring Fund, is a party or by
which it is bound.
(f) No litigation or administrative proceeding
or investigation of or before any court or
governmental body is presently pending or, to
JPMorgans knowledge, threatened against
JPMorgan, 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. JPMorgan, 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 as included in the most recent
Annual Report to Shareholders for the
Acquiring 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 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 Acquiring 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 Acquiring Fund, as
included or to be included in the most recent
Semi-Annual Report to shareholders for the
Acquiring Fund since the date of the Annual
Statement (the Semi-Annual Statement)
(unaudited), are or will be when sent to the
Acquiring Fund shareholders in the regular
course in accordance with GAAP consistently
applied, and such statements (true and
correct copies of which have been or will
be furnished to OGMF) present or will
present fairly, in all material respects,
the financial condition of the Acquiring
Fund as of the date of the Semi-Annual
Statement, 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 are or will be
disclosed therein.
(h) Since the date of the Annual Statement,
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 JPMorgans 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 JPMorgan 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 JPMorgan.
(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 JPMorgan,
and this Agreement constitutes a valid and
binding obligation of JPMorgan, 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, JPMorgan
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
OGMF, on behalf of the Acquired Fund, and
JPMorgan, 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. OGMF 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. JPMorgan 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. OGMF, on behalf of the Acquired Fund,
covenants that it will, from time to time,
as and when reasonably requested by JPMorgan,
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 JPMorgan, on behalf of
the Acquiring Fund, may reasonably deem
necessary or desirable in order to vest in
and confirm (a) OGMFs title to and possession
of the Acquiring Fund Shares to be delivered
hereunder and (b) JPMorgans 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 OGMF, on behalf of the
Acquired Fund, to consummate the transactions
provided for herein shall be subject, at
OGMFs election, to the performance by
JPMorgan, 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
JPMorgan, 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. JPMorgan, 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 JPMorgan,
on behalf of the Acquiring Fund, on or
before the Closing Date.
6.3. JPMorgan shall have executed and
delivered an assumption of the Liabilities
and all such other agreements and
instruments as OGMF may reasonably deem
necessary or desirable in order to vest in
and confirm (a) OGMFs title to and
possession of the Acquiring Fund Shares to
be delivered hereunder and (b) JPMorgans
assumption of all of the liabilities and
otherwise to carry out the intent and
purpose of this Agreement.
6.4. JPMorgan, on behalf of the Acquiring
Fund, shall have delivered to the Acquired
Fund a certificate executed in the name of
JPMorgan, on behalf of the Acquiring Fund,
by JPMorgans 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 6.1 and 6.2
and as to such other matters as OGMF 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 JPMorgan, on behalf of
the Acquiring Fund, to consummate the
transactions provided for herein shall be
subject, at JPMorgans election, to the
performance by OGMF, 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
OGMF, 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. OGMF, 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 OGMF, on behalf of the
Acquired Fund, on or before the Closing Date.
7.3. OGMF 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 OGMF. OGMF
shall have executed and delivered all such
assignments and other instruments of transfer
as JPMorgan may reasonably deem necessary or
desirable in order to vest in and confirm (a)
OGMFs title to and possession of the
Acquiring Fund Shares to be delivered hereunder
and (b) JPMorgans title to and possession of
all the Assets and otherwise to carry out the
intent and purpose of this Agreement.
7.4. OGMF, on behalf of the Acquired Fund,
shall have delivered to JPMorgan a certificate
executed in the name of OGMF, on behalf of the
Acquired Fund, by OGMFs President or Vice
President and its Treasurer or Assistant
Treasurer, in a form reasonably satisfactory
to JPMorgan 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
JPMorgan 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 OGMF, on behalf of the
Acquired Fund, or JPMorgan, 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 Code of Regulations of OGMF, 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
JPMorgan 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 JPMorgans 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
JPMorgan 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 OGMF, on behalf of
the Acquired Fund, JPMorgan, 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 JPMorgan. Notwithstanding anything
herein to the contrary, neither OGMF nor
JPMorgan may waive the condition set
forth in this paragraph 8.5.
8.6. JPMorgan 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 JPMorgan) substantially to the
effect that, based upon certain facts and
certifications made by OGMF, on behalf of
the Acquired 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 Charter under the laws of the
Commonwealth of Massachusetts, and the
Acquired Fund is a series of OGMF; (b)
assuming the due authorization, execution and
delivery of this Agreement by JPMorgan on
behalf of the Acquiring Fund, this Agreement
constitutes a valid and legally binding
obligation of OGMF, 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 provision purporting to provide
indemnification to 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 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; (d) the execution and
delivery by OGMF of this Agreement did not,
and the performance by OGMF, on behalf of the
Acquired Fund, of its obligations under this
Agreement will not, violate OGMFs Charter 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 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 OGMF, 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. 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. OGMF shall have received the opinion of
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP 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
JPMorgan, on behalf of the Acquiring Fund,
and its authorized officers, (a) JPMorgan 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 JPMorgan; (b) the Acquiring Fund Shares are
duly authorized and, upon delivery to OGMF, on
behalf of the Acquired Fund shareholders pursuant
to this Agreement, will be validly issued, fully
paid and non-assessable by JPMorgan, except to
the extent that shareholders may be held
personally liable for the obligations of JPMorgan
and the Acquiring Fund under the laws of the
Commonwealth of Massachusetts; (c) assuming the
due authorization, execution and delivery of this
Agreement by OGMF on behalf of the Acquired Fund,
this Agreement constitutes a valid and legally
binding obligation of JPMorgan, 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 JPMorgan,
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 JPMorgan;
(e) the execution and delivery by JPMorgan of the
Agreement did not, and the performance by
JPMorgan, on behalf of the Acquiring Fund, of its
obligations under the Agreement will not, violate
JPMorgans Declaration of Trust 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 JPMorgan, 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 JPMorgan, 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. With respect
to all matters of Massachusetts law, such counsel
shall be entitled to state that, with the approval
of the Acquired Fund, they have relied upon the
opinion of JPMorgans 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 JPMorgans Massachusetts counsel.
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. JPMorgan, 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 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 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 JPMorgan or its
Trustees or officers prior to the Closing Date,
provided that such indemnification by JPMorgan
(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. OGMF, 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 JPMorgan 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 OGMF or its Trustees or officers
prior to the Closing Date, provided that such
indemnification by OGMF (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. JPMorgan, on behalf of the Acquiring Fund,
and OGMF, 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 ▇.▇. ▇▇▇▇▇▇ Investment Management
Inc. and Banc One Investment Advisors Corporation.
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. JPMorgan and OGMF 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 JPMorgan or the Board of
Trustees of OGMF, 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 JPMorgan 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 JPMorgan, at the address of JPMorgan 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
JPMORGAN ▇▇▇▇▇▇▇ INTERNATIONAL EQUITY 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 JPMORGAN ▇▇▇▇▇▇▇
INTERNATIONAL EQUITY FUND, SUCH REGISTRATION IS
NOT REQUIRED;
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 Diversified International Fund
▇.▇. ▇▇▇▇▇▇ MUTUAL FUND SELECT GROUP
on behalf of its series,
JPMorgan ▇▇▇▇▇▇▇ International Equity Fund
By: By:
Name: Name:
Title: Title:
With respect to paragraph 10.2 of this Agreement,
Accepted and Acknowledged by:
▇.▇. ▇▇▇▇▇▇ Investment Banc One Investment
Management Inc. Advisors Corporation
By: By:
Name: Name:
Title: Title:
Schedule 4.1
4.1(g)- None.
4.1(h)
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.
