AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the “Agreement”) is made as of September
12, 2007, by and between Xxxx Xxxxxxx U.S. Government Cash Reserve (the “Acquired Fund”), a
series of Xxxx Xxxxxxx Current Interest (the “Trust”), a Massachusetts business trust, and
Money Market Fund (the “Acquiring Fund”), a series of the Trust, a Massachusetts business
trust.
This Agreement is intended to be and is adopted as a plan of reorganization and liquidation
within the meaning of Sections 361(a) and 368(a) of the United States Internal Revenue Code of
1986, as amended (the “Code”), and any successor provision. The reorganization will
consist of the transfer of all assets of the Acquired Fund to the Acquiring Fund in exchange solely
for Class A shares of the Acquiring Fund (the “Merger Shares”), and the assumption by the
Acquiring Fund of substantially all of the liabilities of the Acquired Fund and the distribution,
after the Closing Date hereinafter referred to, of the Merger Shares to the shareholders of the
Acquired Fund in liquidation of the Acquired Fund, all upon the terms and conditions set forth in
this Agreement (the “Reorganization”).
In order to consummate the Reorganization and in consideration of the promises and the
covenants and agreements hereinafter set forth, and intending to be legally bound, each party
hereby agrees as follows:
1. Representations and Warranties of the Acquiring Fund.
The Trust, on behalf of the Acquiring Fund, represents and warrants to, and agrees with, the
Acquired Fund that:
(a) The Acquiring Fund is a series of shares of the Trust, a Massachusetts business trust duly
organized and validly existing under, and in conformity with, the laws of the Commonwealth of
Massachusetts, and has the power to own all of its assets and to carry out its obligations under
this Agreement. The Trust is qualified as a foreign association in every jurisdiction where
required, except to the extent that failure to so qualify would not have a material adverse effect
on the Trust. Each of the Trust and the Acquiring Fund has all necessary federal, state and local
authorizations to carry on its business as it is now being conducted and to carry out this
Agreement.
(b) The Trust is duly registered under the Investment Company Act of 1940, as amended (the “1940
Act”), as an open-end management investment company and such registration has not been revoked or
rescinded and is in full force and effect, and the Acquiring Fund is a separate diversified series
thereof duly designated in accordance with the applicable provisions of the Trust’s Amended and
Restated Declaration of Trust dated March 8, 2005, as amended (the “Trust Declaration”),
and the 1940 Act.
(c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of Code for
treatment as, a “regulated investment company” (“RIC”) within the meaning of Section 851 of
the Code at all times since its inception, and will continue to meet such requirements at all times
through the Closing Date (as defined in Section 7 herein) and thereafter. The Acquiring Fund has
not at any time since its inception been liable for, or is not now liable for, any material income
or excise tax pursuant to Sections 852 or 4982 of the Code.
(d) The Acquired Fund has been furnished with the annual report of the Acquiring Fund for the
fiscal year ended March 31, 2007, and the audited financial statements appearing therein, having
been audited by PricewaterhouseCoopers LLP, independent registered public accounting firm, which
fairly presents the financial condition and result of operations of the Acquiring Fund as of the
date indicated, in conformity with generally accepted accounting principles in the United States
applied on a consistent basis.
(e) The Acquiring Fund has no known liabilities of a material nature, contingent or otherwise,
other than those that will be shown as belonging to it on its statement of assets and liabilities
as of March 31, 2007, and those incurred in the ordinary course of business as an investment
company since such date. As of the Valuation Time (as defined in Section 3(e)), the Acquiring Fund
will advise the Acquired Fund in writing of all known liabilities, contingent or otherwise, whether
or not incurred in the ordinary course of business, existing or accrued as of such time.
(f) The Trust, on behalf of the Acquiring Fund, has full power and authority to enter into and
perform its obligations under this Agreement. The execution, delivery and performance of this
Agreement has been duly authorized by all necessary action of the board of trustees of the Trust
(the “Board of Trustees”), and this Agreement constitutes a valid and binding contract
enforceable in accordance with its terms subject to approval by the Acquired Fund’s shareholders
and subject to the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar
laws relating to or affecting creditors’ rights generally and court decisions with respect thereto.
(g) Except as has been disclosed in writing to the Acquired Fund, there are no material legal,
administrative or other proceedings pending or, to the knowledge of the Trust or the Acquiring
Fund, threatened against the Trust or the Acquiring Fund which assert liability on the part of the
Trust or the Acquiring Fund or which materially affect the financial condition of the Trust or the
Acquiring Fund or the Trust’s or the Acquiring Fund’s ability to consummate the Reorganization.
Neither the Trust nor the Acquiring Fund is charged with nor, to the best of their knowledge,
threatened with any violation or investigation of any possible violation of any provisions of any
federal, state or local law or regulation or administrative ruling relating to any aspect of their
business.
(h) Neither the Trust nor the Acquiring Fund is obligated under any provision of the Trust
Declaration or the Trust’s Amended and Restated By-laws dated March 8, 2005, as may be amended (the
“Trust By-laws”), and neither is a party to any contract or other commitment or obligation,
nor is subject to any order or decree, which would be violated by its execution of or performance
under this Agreement, except insofar as the Acquiring Fund and the Acquired Fund may mutually agree
that the Acquiring Fund may take such necessary action to amend such contract or other commitment
or obligation to cure any potential violation as a condition precedent to the Reorganization.
(i) There are no material contracts outstanding to which the Acquiring Fund is a party that have
not been disclosed in the N-14 Registration Statement (as defined in sub-section (k) below) or that
will not otherwise be disclosed to the Acquired Fund prior to the Valuation Time.
(j) No consent, approval, authorization or order of any court or government authority is required
for the consummation by the Acquiring Fund of the Reorganization, except such as may be required
under the Securities Act of 1933, as amended (the “1933 Act”), the Securities Exchange Act
of 1934, as amended (the “1934 Act”), and the 1940 Act or state securities laws (which term
as used herein shall include the laws of the District of Columbia and Puerto Rico).
(k) The registration statement on Form N-14 filed with the Securities and Exchange Commission (the
“Commission”) by the Trust on behalf of the Acquiring Fund and relating to the Merger
Shares issuable hereunder, and the proxy statement of the Acquired Fund relating to the meeting of
the Acquired Fund’s shareholders referred to in Section 6(b) herein (together with the documents
incorporated therein by reference, the “Proxy Statement and Prospectus”), and any
supplement or amendment thereto or to the documents therein (as amended or supplemented, the
“N-14 Registration Statement”), on the effective date of the N-14 Registration Statement,
at the time of the shareholders’ meeting referred to in Section 6(b) of this Agreement and at the
Closing Date, insofar as it relates to the Acquiring Fund,
(i) did and will 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; and
(ii) does not and will not contain 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 not
misleading; and the Proxy Statement and Prospectus included therein did not or will not contain any
untrue statement of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that none of the representations and warranties in this sub-section shall apply
to statements in or omissions from the N-14 Registration Statement made in reliance upon and in
conformity with information furnished by the Acquired Fund for use in the N-14 Registration
Statement.
(l) The Acquiring Fund’s investment operations from inception to the date hereof have been in
compliance in all material respects with the investment policies and investment restrictions set
forth in the N-14 Registration Statement.
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(m) All issued and outstanding shares of the Acquiring Fund are, and at the Closing Date will be,
duly and validly issued and outstanding, fully paid and nonassessable by the Acquiring Fund. In
regard to the statement that the outstanding shares will be nonassessable, it is noted that the
Acquiring Fund is a “Massachusetts business trust” and, under Massachusetts’ law, shareholders
could, under certain circumstances, be held personally liable for the obligations of the Acquiring
Fund. The Acquiring Fund does not have outstanding any security convertible into any of the
Acquiring Fund shares.
(n) The Merger Shares to be issued to the Acquired Fund pursuant to this Agreement have been duly
authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly
issued Class A shares of beneficial interest in the Acquiring Fund and will be fully paid and
nonassessable by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any
preemptive right of subscription or purchase in respect thereof. In regard to the statement above
that the Merger Shares will be nonassessable, it is noted that the Trust is a “Massachusetts
business trust” and, under Massachusetts’ law, shareholders could, under certain circumstances, be
held personally liable for the obligations of the Trust.
(o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for
distribution to the shareholders of the Acquired Fund on the Closing Date will be duly qualified
for offering to the public in all states of the United States in which the sale of shares of the
Acquired Fund presently are qualified, and there will be a sufficient number of such shares
registered under the 1933 Act and, as may be necessary, with each pertinent state securities
commission to permit the transfers contemplated by this Agreement to be consummated.
(p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory,
trustee and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund.
(q) The Acquiring Fund has filed, or intends to file, or has obtained extensions to file, all
federal, state and local tax returns which are required to be filed by it, and has paid or has
obtained extensions to pay, all federal, state and local taxes shown on said returns to be due and
owing and all assessments received by it, up to and including the taxable year in which the Closing
Date occurs. All tax liabilities of the Acquiring Fund have been adequately provided for on its
books, and no tax deficiency or liability of the Acquiring Fund has been asserted and no question
with respect thereto has been raised by the Internal Revenue Service or by any state or local tax
authority for taxes in excess of those already paid, up to and including the taxable year in which
the Closing Date occurs.
2. Representations and Warranties of the Acquired Fund.
The Trust, on behalf of the Acquired Fund, represents and warrants to, and agrees with, the
Acquiring Fund that:
(a) The Acquired Fund is a series of shares of the Trust, a Massachusetts business trust duly
organized and validly existing under, and in good standing in conformity with, the laws of the
Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its
obligations under this Agreement. The Trust is qualified as a foreign association in every
jurisdiction where required, except to the extent that failure to so qualify would not have a
material adverse effect on the Trust. Each of the Trust and the Acquired Fund has all necessary
federal, state and local authorizations to carry on its business as it is now being conducted and
to carry out this Agreement.
(b) The Trust is duly registered under the 1940 Act as an open-end management investment company
and such registration has not been revoked or rescinded and is in full force and effect, and the
Acquired Fund is a separate diversified series thereof duly designated in accordance with the
applicable provisions of the Trust Declaration and the 1940 Act.
(c) The Acquired Fund has elected to be, and has met the requirements of, subchapter M of Code for
treatment as an RIC within the meaning of Section 851 of the Code at all times since its inception,
and will continue to meet such requirements at all times through the Closing Date with respect to
its taxable year ending on the Closing Date. The Acquired Fund has not at any time since its
inception been liable for, and is not now liable for, and will not be liable for on the Closing
Date, any material income or excise tax pursuant to Sections 852 or 4982 of the Code.
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(d) The Trust, on behalf of the Acquired Fund, has full power and authority to enter into and
perform its obligations under this Agreement. The execution, delivery and performance of this
Agreement has been duly authorized by all necessary action of the Board of Trustees, and this
Agreement constitutes a valid and binding contract enforceable in accordance with its terms subject
to approval by the Acquired Fund’s shareholders and subject to the effects of bankruptcy,
insolvency, moratorium, fraudulent conveyance and similar laws relating to or affecting creditors’
rights generally and court decisions with respect thereto.
(e) The Acquiring Fund has been furnished with the annual report of the Acquired Fund for the
fiscal year ended March 31, 2007, and the audited financial statements appearing therein, having
been audited by PricewaterhouseCoopers LLP, independent registered public accounting firm, which
fairly presents the financial condition and result of operations of the Acquired Fund as of the
date indicated, in conformity with accounting principles generally accepted in the United States
applied on a consistent basis.
(f) The Acquired Fund has no known liabilities of a material nature, contingent or otherwise, other
than those that will be shown as belonging to it on its statement of assets and liabilities as of
March 31, 2007, and those incurred in the ordinary course of business as an investment company
since such date. As of the Valuation Time, the Acquired Fund will advise the Acquiring Fund in
writing of all known liabilities, contingent or otherwise, whether or not incurred in the ordinary
course of business, existing or accrued as of such time.
(g) Except as has been disclosed in writing to the Acquiring Fund, there are no material legal,
administrative or other proceedings pending or, to the knowledge of the Trust or the Acquired Fund,
threatened against the Trust or the Acquired Fund which assert liability on the part of the Trust
or the Acquired Fund or which materially affect the financial condition of the Trust or the
Acquired Fund or the Trust’s or the Acquired Fund’s ability to consummate the Reorganization.
Neither the Trust nor the Acquired Fund is charged with nor, to the best of their knowledge,
threatened with any violation or investigation of any possible violation of any provisions of any
federal, state or local law or regulation or administrative ruling relating to any aspect of their
business.
(h) There are no material contracts outstanding to which the Acquired Fund is a party that have not
been disclosed in the N-14 Registration Statement or that will not otherwise be disclosed to the
Acquiring Fund prior to the Valuation Time.
(i) Neither the Trust nor the Acquired Fund is obligated under any provision of the Trust
Declaration or the Trust’s By-Laws and neither is a party to any contract or other commitment or
obligation, nor is subject to any order or decree, which would be violated by its execution of or
performance under this Agreement, except insofar as the Acquired Fund and the Acquiring Fund may
mutually agree that the Acquired Fund may take such necessary action to amend such contract or
other commitment or obligation to cure any potential violation as a condition precedent to the
Reorganization.
(j) The Acquired Fund has filed, or intends to file, or has obtained extensions to file, all
federal, state and local tax returns which are required to be filed by it, and has paid or has
obtained extensions to pay, all federal, state and local taxes shown on said returns to be due and
owing and all assessments received by it, up to and including the taxable year in which the Closing
Date occurs. All tax liabilities of the Acquired Fund have been adequately provided for on its
books, and no tax deficiency or liability of the Acquired Fund has been asserted and no question
with respect thereto has been raised by the Internal Revenue Service or by any state or local tax
authority for taxes in excess of those already paid, up to and including the taxable year in which
the Closing Date occurs.
(k) As used in this Agreement, the term “Acquired Fund Investments” shall mean (i) the
investments of the Acquired Fund shown on its schedule of investments as of the Valuation Time
furnished to the Acquiring Fund; and (ii) all other assets owned by the Acquired Fund or
liabilities incurred as of the Valuation Time. At the Valuation Time and the Closing Date, the
Acquired Fund will have full right, power and authority to sell, assign, transfer and deliver the
Acquired Fund Investments. At the Closing Date, subject only to the obligation to deliver the
Acquired Fund Investments as contemplated by this Agreement, the Acquired Fund will have good and
marketable title to all of the Acquired Fund Investments, and the Acquiring Fund will acquire all
of the Acquired Fund Investments free and clear of any encumbrances, liens or security interests
and without any restrictions upon the transfer thereof (except those imposed by the federal or
state securities laws and those imperfections of title or encumbrances as do not materially detract
from the value or use of the Acquired Fund Investments or materially affect title thereto).
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(l) No consent, approval, authorization or order of any court or governmental authority is required
for the consummation by the Acquired Fund of the Reorganization, except such as may be required
under the 1933 Act, the 1934 Act, the 1940 Act or state securities laws.
(m) The N-14 Registration Statement, on the effective date of the N-14 Registration Statement, at
the time of the shareholders’ meeting referred to in Section 6(b) of this Agreement and at the
Closing Date, insofar as it relates to the Acquired Fund,
(i) did and will 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; and
(ii) does not and will not contain 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 not
misleading; and the Proxy Statement and Prospectus included therein did not or will not contain any
untrue statement of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that none of the representations and warranties in this sub-section shall apply
to statements in or omissions from the N-14 Registration Statement made in reliance upon and in
conformity with information furnished by the Acquiring Fund for use in the N-14 Registration
Statement.
(n) All issued and outstanding shares of the Acquired Fund are, and at the Closing Date will be,
duly and validly issued and outstanding, fully paid and nonassessable by the Acquired Fund
(“Acquired Fund Shares”). In regard to the statement above that the Acquired Fund Shares
will be nonassessable, it is noted that the Acquired Fund is a “Massachusetts business trust” and,
under Massachusetts’ law, shareholders could, under certain circumstances, be held personally
liable for the obligations of the Acquired Fund. The Acquired Fund does not have outstanding any
security convertible into any of the Acquired Fund Shares.
(o) All of the issued and outstanding shares of the Acquired Fund were offered for sale and sold in
conformity with all applicable federal and state securities laws.
(p) The books and records of the Acquired Fund made available to the Acquiring Fund and/or its
counsel are substantially true and correct and contain no material misstatements or omissions with
respect to the operations of the Acquired Fund.
(q) The Acquired Fund will not sell or otherwise dispose of any of the Merger Shares to be received
in the Reorganization, except in distribution to the shareholders of the Acquired Fund, as provided
in Section 3 of this Agreement.
3. The Reorganization.
(a) Subject to the requisite approval of the shareholders of the Acquired Fund, and to the other
terms and conditions contained herein, the Acquired Fund agrees to sell, convey, transfer and
deliver to the Acquiring Fund, and the Acquiring Fund agrees to acquire from the Acquired Fund, on
the Closing Date, all of the Acquired Fund Investments (including interest accrued as of the
Valuation Time on debt instruments) and to assume substantially all of the liabilities of the
Acquired Fund, in exchange for that number of Merger Shares provided for in Section 4. Pursuant to
this Agreement, as soon as practicable after the Closing Date, the Acquired Fund will distribute
all Merger Shares received by it to its shareholders in exchange for their Acquired Fund Shares.
Such distributions shall be accomplished by the opening of shareholder accounts on the share ledger
records of the Acquiring Fund in the amounts due the shareholders of the Acquired Fund based on
their respective holdings in the Acquired Fund as of the Valuation Time. All issued and
outstanding Acquired Fund Shares simultaneously will be canceled on the books of the Acquired Fund.
(b) If it is determined that the portfolios of the Acquired Fund and the Acquiring Fund, when
aggregated, would contain investments exceeding certain percentage limitations imposed upon the
Acquiring Fund with respect to such investments, the Acquired Fund, if requested by the Acquiring
Fund, will dispose of a sufficient amount of
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such investments as may be necessary to avoid violating such limitations as of the Closing Date.
Notwithstanding the foregoing,
(i) nothing herein will require the Acquired Fund to dispose of any portfolios, securities or
other investments, if, in the reasonable judgment of the Board of Trustees or the Acquired Fund’s
investment adviser, such disposition would adversely affect the tax-free nature of the
Reorganization for federal income tax purposes or would otherwise not be in the best interests of
the Acquired Fund, and
(ii) nothing will permit the Acquired Fund to dispose of any portfolio securities or other
investments if, in the reasonable judgment of the Board of Trustees or the Acquiring Fund’s
investment adviser, such disposition would adversely affect the tax-free nature of the
Reorganization for federal income tax purposes or would otherwise not be in the best interests of
the Acquiring Fund.
(c) Prior to the Closing Date, the Acquired Fund shall declare a dividend or dividends which,
together with all such previous dividends, shall have the effect of distributing to its
shareholders all of its net investment company taxable income to and including the Closing Date, if
any (computed without regard to any deduction for dividends paid), and all of its net capital gain
realized to and including the Closing Date, if any.
(d) The Acquired Fund will pay or cause to be paid to the Acquiring Fund any interest the Acquired
Fund receives on or after the Closing Date with respect to any of the Acquired Fund Investments
transferred to the Acquiring Fund hereunder.
(e) The Valuation Time shall be 4:00 P.M., Eastern Time, on the Closing Date, or such earlier or
later date and time as may be mutually agreed upon in writing (the “Valuation Time”).
(f) Recourse for liabilities assumed from the Acquired Fund by the Acquiring Fund in the
Reorganization will be limited to the assets acquired by the Acquiring Fund. The known liabilities
of the Acquired Fund, as of the Valuation Time, shall be confirmed to the Acquiring Fund pursuant
to Section 2(k) of this Agreement.
(g) The Acquired Fund will be terminated following the Closing Date by terminating its registration
under the 1940 Act and its organization under Massachusetts law and, where it is required to do so,
will withdraw its authority to do business in any state.
(h) The Acquiring Fund will file with the Secretary of the Commonwealth of Massachusetts any
necessary amendment to the Trust Declaration and By-Laws to consummate the Reorganization.
4. Valuation.
(a) On the Closing Date, the Acquiring Fund will deliver to the Acquired Fund a number of full and
fractional Merger Shares having an aggregate net asset value equal to the value of the assets of
the Acquired Fund attributable to the value of the liabilities attributable to the Acquired Fund
Shares assumed by the Acquiring Fund on that date, determined as hereinafter provided in this
Section 4.
(b) The net asset value of the Merger Shares to be delivered to the Acquired Fund, the value of the
assets attributable to the Acquired Fund Shares, and the value of the liabilities of the Acquired
Fund to be assumed by the Acquiring Fund shall in each case be determined as of the Valuation Time.
(c) The net asset value of the Merger Shares shall be computed in the manner set forth in the
then-current prospectus of the Acquiring Fund. The value of the assets and liabilities of the
Acquired Fund shall be determined by the Acquiring Fund, in cooperation with the Acquired Fund,
pursuant to procedures which the Acquiring Fund would use in determining the fair market value of
the Acquiring Fund’s assets and liabilities.
(d) No adjustment shall be made in the net asset value of either the Acquired Fund or the Acquiring
Fund to take into account differences in realized and unrealized gains and losses.
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(e) The Acquiring Fund shall issue the Merger Shares to the Acquired Fund. The Acquired Fund shall
promptly distribute the Merger Shares to the shareholders of the Acquired Fund by establishing open
accounts for each Acquired Fund shareholder on the share ledger records of the Acquiring Fund.
Certificates representing Merger Shares will not be issued to Acquired Fund shareholders.
(f) The Acquiring Fund shall assume all of the liabilities of the Acquired Fund, whether accrued or
contingent, in connection with the acquisition of assets and subsequent liquidation and dissolution
of the Acquired Fund or otherwise, except for the Acquired Fund’s liabilities, if any, arising
pursuant to this Agreement.
5. Payment of Expenses.
(a) Except as otherwise provided in this Section 5, Xxxx Xxxxxxx Advisers, LLC (“XXX”), by
countersigning this Agreement, agrees that it will bear any and all costs and expenses of the
Reorganization incurred by the Acquiring Fund and the Acquired Fund; provided, however, that the
Acquiring Fund and the Acquired Fund will each pay any brokerage commissions, dealer xxxx-ups and
similar expenses (“Portfolio Expenses”) that it may incur in connection with the purchases
or sale of portfolio securities; and provided, further, that the Acquiring Fund will pay all
governmental fees required in connection with the registration or qualification of the Merger
Shares under applicable state and federal laws.
(b) In the event the Reorganization contemplated by this Agreement is not consummated, then XXX
agrees that it shall bear all of the costs and expenses (other than Portfolio Expenses) incurred by
both the Acquiring Fund and the Acquired Fund in connection with such Reorganization.
(c) Notwithstanding any other provisions of this Agreement, if for any reason the Reorganization
contemplated by this Agreement is not consummated, neither the Acquiring Fund nor the Acquired Fund
shall be liable to the other for any damages resulting therefrom, including, without limitation,
consequential damages, except as specifically set forth above.
(d) Notwithstanding any of the foregoing, costs and expenses will in any event be paid by the party
directly incurring them if and to the extent that the payment by another party of such costs and
expenses would result in the disqualification of such party as a “regulated investment company”
within the meaning of subchapter M of the Code.
6. Covenants of the Acquired Fund and the Acquiring Fund.
The Acquired Fund and the Acquiring Fund hereby covenant and agree with the other as follows:
(a) Each of the Acquired Fund and the Acquiring Fund will operate its business as presently
conducted in the ordinary course of business between the date hereof and the Closing Date, it being
understood that such ordinary course of business will include regular and customary periodic
dividends and distributions.
(b) The Trust, on behalf of the Acquired Fund, will call a meeting of its shareholders to be held
prior to the Closing Date to consider and act upon this Agreement and take all other reasonable
action necessary to obtain the required shareholder approval of the Reorganization contemplated
hereby.
(c) In connection with the Acquired Fund shareholders’ meeting referred to in sub-section (b)
above, the Acquiring Fund will prepare the Prospectus/Proxy Statement for such meeting, to be
included in the N-14 Registration Statement, which the Trust, on behalf of the Acquiring Fund, will
prepare and file for registration of the Merger Shares, under the 1933 Act, to be distributed to
the Acquired Fund’s shareholders pursuant hereto, all in compliance with the applicable
requirements of the 1933 Act, the 1934 Act, and the 1940 Act. The Acquiring Fund will use its best
efforts to provide for the N-14 Registration Statement to become effective as promptly as
practicable. The Acquired Fund and the Acquiring Fund will cooperate fully with each other, and
each will furnish to the other the information relating to itself to be set forth in the N-14
Registration Statement, as required by the 1933 Act, the 1934 Act, the 1940 Act and the rules and
regulations thereunder and the state securities laws.
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(d) The information to be furnished by the Acquired Fund and the Acquiring Fund for use in the N-14
Registration Statement shall be accurate and complete in all material respects and shall comply
with federal securities and other laws and regulations thereunder applicable hereto.
(e) The Trust shall:
(i) following the consummation of the Reorganization, terminate the Acquired Fund in
accordance with the laws of the Commonwealth of Massachusetts, the Trust Declaration and Trust
By-Laws, the 1940 Act and any other applicable law;
(ii) not make any distributions of any Merger Shares other than to the respective Acquired
Fund shareholders and without first paying or adequately providing for the payment of all of its
respective liabilities not assumed by the Acquiring Fund, if any; and
(iii) on and after the Closing Date, not conduct any business on behalf of the Acquired Fund
except in connection with the termination of the Acquired Fund.
(f) Each of the Acquired Fund and the Acquiring Fund agrees that, by the Closing Date, all of its
federal and other tax returns and reports required to be filed on or before such date shall have
been filed and all taxes shown as due on said returns either have been paid or adequate liability
reserves have been provided for the payment of such taxes.
(g) Neither the Acquiring Fund nor the Acquired Fund shall take any action or cause any action to
be taken (including, without limitation, the filing of any tax return) that results in the failure
of the Reorganization to qualify as a reorganization within the meaning of Section 368(a) of the
Code or is inconsistent with the treatment of the Reorganization as a reorganization within the
meaning of such Code section. At or prior to the Closing Date, the Trust, the Acquiring Fund and
the Acquired Fund will take such action, or cause such action to be taken, as is reasonably
necessary to enable Xxxxxxxxxxx & Xxxxxxxx Xxxxxxx Xxxxx Xxxxx LLP (“K&L Gates”), special
counsel to the Acquired Fund and the Acquiring Fund, to render the tax opinion required herein
(including, without limitation, each party’s execution of representations reasonably requested by
and addressed to K&L Gates).
(h) In connection with the covenant in subsection (g) above, each of the Acquired Fund and
Acquiring Fund will cooperate with each other in filing any tax return, amended return or claim for
refund, determining a liability for taxes or a right to a refund of taxes or participating in or
conducting any audit or other proceeding in respect of taxes. The Acquiring Fund will retain for a
period of ten (10) years following the Closing Date all returns, schedules and work papers and all
material records or other documents relating to tax matters of the Acquired Fund for such Acquired
Fund’s taxable period first ending after the Closing Date and for all prior taxable periods.
(i) After the Closing Date, the Acquired Fund shall prepare, or cause its agents to prepare, any
federal, state or local tax returns required to be filed by the Acquired Fund with respect to its
final taxable year ending with its complete liquidation and for any prior periods or taxable years,
and further shall cause such tax returns to be duly filed with the appropriate taxing authorities.
Notwithstanding the aforementioned provisions of this subsection, any expenses incurred by the
Acquired Fund (other than for payment of taxes) in connection with the preparation and filing of
said tax returns after the Closing Date shall be borne by such Acquired Fund to the extent such
expenses have been accrued by such Acquired Fund in the ordinary course without regard to the
Reorganization; any excess expenses shall be borne by the investment adviser or an affiliate
thereof.
(j) Following the consummation of the Reorganization, the Acquiring Fund will continue its business
as a diversified series of the Trust, an open-end management investment company registered under
the 1940 Act.
7. Closing Date.
(a) Delivery of the assets of the Acquired Fund to be transferred, together with any other Acquired
Fund Investments, assumption of the liabilities of the Acquired Fund to be assumed, and delivery of
the Merger Shares to be issued as provided in this Agreement shall be made at such place and time
as the Acquired Fund and Acquiring
8
Fund shall mutually agree, as of the close of business on September 14, 2007, or at such other time
and date agreed to by the Acquired Fund and the Acquiring Fund, the date and time upon which such
delivery is to take place being referred to herein as the “Closing Date.”
(b) To the extent that any Acquired Fund Investments, for any reason, are not transferable on the
Closing Date, the Acquired Fund shall cause such Acquired Fund Investments to be transferred to the
Acquiring Fund’s account with its custodian at the earliest practicable date thereafter.
(c) The Acquired Fund will deliver to the Acquiring Fund on the Closing Date confirmation or other
adequate evidence as to the tax basis of the Acquired Fund Investments delivered to the Acquiring
Fund hereunder.
(d) As soon as practicable after the close of business on the Closing Date, the Acquired Fund shall
deliver to the Acquiring Fund a list of the names and addresses of all of the shareholders of
record of the Acquired Fund on the Closing Date and the number of Acquired Fund Shares owned by
each such shareholder, certified to the best of its knowledge and belief by the transfer agent for
the Acquired Fund or by its President.
8. Conditions of the Acquired Fund’s Obligations.
The obligations of the Acquired Fund hereunder shall be subject to the following conditions:
(a) That the Board of Trustees has determined that participation in the Reorganization is in the
best interests of the Acquiring Fund and that the interests of the existing shareholders thereof
will not be diluted as a result of the Reorganization, that this Agreement shall have been adopted,
and the Reorganization shall have been approved, by the Board of Trustees, and that the Acquiring
Fund shall have delivered to the Acquired Fund a copy of the resolution approving this Agreement
adopted by the Board of Trustees certified by its Secretary.
(b) That the Acquired Fund shall have received from the Acquiring Fund a statement of assets,
liabilities and capital, with values determined as provided in Section 4 of this Agreement,
together with a schedule of the Acquiring Fund’s investments, all as of the Valuation Time,
certified on the Acquiring Fund’s behalf by its President (or any Vice President) or its Treasurer,
and a certificate signed by the Acquiring Fund’s President (or any Vice President) and its
Treasurer, dated as of the Closing Date, certifying that as of the Valuation Time and as of the
Closing Date there has been no material adverse change in the financial position of the Acquiring
Fund since the date of the Acquiring Fund’s most recent annual report or semiannual report, as
applicable, other than changes in its portfolio securities since that date or changes in the market
value of its portfolio securities.
(c) That the Acquiring Fund shall have furnished to the Acquired Fund a certificate signed by the
Acquiring Fund’s President (or any Vice President) or its Treasurer, dated as of the Closing Date,
certifying that, as of the Valuation Time and as of the Closing Date, all representations and
warranties of the Acquiring Fund made in this Agreement are true and correct in all material
respects with the same effect as if made at and as of such dates, and that the Acquiring Fund has
complied with all of the agreements and satisfied all of the conditions on its part to be performed
or satisfied at or prior to each of such dates.
(d) That there shall not be any material litigation pending with respect to the matters
contemplated by this Agreement.
(e) That the Acquired Fund shall have received the opinion(s) of K&L Gates, counsel for the
Acquiring Fund, dated as of the Closing Date, addressed to the Acquired Fund substantially in the
form and to the effect that:
(i) the Acquiring Fund is a separate series of the Trust, and both the Acquiring Fund and the
Trust are duly formed and validly existing under the laws of the Commonwealth of Massachusetts;
(ii) the Acquiring Fund is separate series of the Trust, an open-end management investment
company registered under the 1940 Act;
9
(iii) this Agreement and the Reorganization provided for herein and the execution of this
Agreement have been duly authorized and approved by all requisite action of the Board of Trustees,
and this Agreement has been duly executed and delivered by the Trust on behalf of the Acquiring
Fund and (assuming this Agreement is a valid and binding obligation of the other party hereto) is a
valid and binding obligation of the Acquiring Fund;
(iv) neither the execution nor delivery by the Trust on behalf of the Acquiring Fund of this
Agreement nor the consummation by the Acquiring Fund of the Reorganization contemplated hereby
violates any provision of any statute or any published regulation or any judgment or order
disclosed to counsel by the Acquiring Fund as being applicable to the Acquiring Fund;
(v) the Merger Shares have each been duly authorized and, upon issuance thereof in accordance
with this Agreement, will be validly issued, fully paid and nonassessable, except to the extent
shareholders could under certain circumstances, in accordance with Massachusetts’ law, be held
personally liable for the obligations of the Acquiring Fund; and
(vi) to their knowledge and subject to the qualifications set forth below, the execution and
delivery by the Trust on behalf of the Acquiring Fund of this Agreement and the consummation of the
Reorganization herein contemplated do not require, under the laws of the Commonwealth of
Massachusetts or any state in which the Acquiring Fund is qualified to do business or the federal
laws of the United States, the consent, approval, authorization, registration, qualification or
order of, or filing with, any court or governmental agency or body (except such as have been
obtained under the 1933 Act, 1934 Act, the 1940 Act or the rules and regulations thereunder).
Counsel need express no opinion, however, as to any such consent, approval, authorization,
registration, qualification, order or filing which may be required as a result of the involvement
of other parties to this Agreement in the transactions herein contemplated because of their legal
or regulatory status or because of any other facts specifically pertaining to them.
(f) That the Acquired Fund shall have obtained an opinion from K&L Gates dated as of the Closing
Date, addressed to the Acquired Fund, and based upon such representations of the parties as K&L
Gates may reasonably request, that the consummation of the Reorganization set forth in this
Agreement complies with the requirements of a reorganization as described in Section 368(a) of the
Code.
(g) That all proceedings taken by the Acquiring Fund and its counsel in connection with the
Reorganization and all documents incidental thereto shall be satisfactory in form and substance to
the others.
(h) That the N-14 Registration Statement shall have become effective under the 1933 Act, and no
stop order suspending such effectiveness shall have been instituted or, to the knowledge of the
Trust or the Acquiring Fund, be contemplated by the Commission.
9. Conditions of the Acquiring Fund’s Obligations.
The obligations of the Acquiring Fund hereunder shall be subject to the following conditions:
(a) That the Board of Trustees has determined that participation in the Reorganization is in the
best interests of the Acquired Fund and that the interests of the existing shareholders thereof
will not be diluted as a result of the Reorganization, that this Agreement shall have been adopted,
and the Reorganization shall have been approved, by the Board of Trustees of the Acquired Fund and
by the affirmative vote of the holders of a majority of the outstanding Acquired Fund Shares (as
defined in the Trust Declaration); and the Acquired Fund shall have delivered to the Acquiring Fund
a copy of the resolutions approving this Agreement adopted by the Board of Trustees, and a
certificate setting forth the vote of the holders of the Acquired Fund Shares obtained, each
certified by its Secretary.
(b) That the Acquired Fund shall have furnished to the Acquiring Fund a statement of its assets,
liabilities and capital, with values determined as provided in Section 4 of this Agreement,
together with a schedule of investments with their respective dates of acquisition and tax costs,
all as of the Valuation Time, certified on the Acquired Fund’s behalf by its President (or any Vice
President) or its Treasurer, and a certificate signed by the Acquired Fund’s President (or any Vice
President) or its Treasurer, dated as of the Closing Date, certifying that as of the
10
Valuation Time and as of the Closing Date there has been no material adverse change in the
financial position of the Acquired Fund since the date of the Acquired Fund’s most recent annual
report or semiannual report, as applicable, other than changes in the Acquired Fund Investments
since that date or changes in the market value of the Acquired Fund Investments.
(c) That the Acquired Fund shall have furnished to the Acquiring Fund a certificate signed by the
Acquired Fund’s President (or any Vice President) or its Treasurer, dated as of the Closing Date,
certifying that as of the Valuation Time and as of the Closing Date, all representations and
warranties of the Acquired Fund made in this Agreement are true and correct in all material
respects with the same effect as if made at and as of such dates and the Acquired Fund has complied
with all of the agreements and satisfied all of the conditions on its part to be performed or
satisfied at or prior to such dates.
(d) That there shall not be any material litigation pending with respect to the matters
contemplated by this Agreement.
(e) That the Acquiring Fund shall have received the opinion(s) of K&L Gates, counsel for the
Acquired Fund, dated as of the Closing Date, addressed to the Acquiring Fund, substantially in the
form and to the effect that:
(i) the Acquired Fund is a separate series of the Trust, and both the Acquired Fund and the
Trust are duly formed and validly existing under the laws of the Commonwealth of Massachusetts;
(ii) the Acquired Fund is a separate series of the Trust, an open-end management investment
company registered under the 1940 Act;
(iii) this Agreement and the Reorganization provided for herein and the execution of this
Agreement have been duly authorized and approved by all requisite action of the Board of Trustees,
and this Agreement has been duly executed and delivered by the Trust on behalf of the Acquired Fund
and (assuming this Agreement is a valid and binding obligation of the other party hereto) is a
valid and binding obligation of the Acquired Fund;
(iv) neither the execution or delivery by the Trust on behalf of the Acquired Fund of this
Agreement nor the consummation by the Acquired Fund of the Reorganization contemplated hereby
violates any provision of any statute, nor any published regulation or any judgment or order
disclosed to counsel by the Acquired Fund as being applicable to the Acquired Fund; and
(v) to their knowledge and subject to the qualifications set forth below, the execution and
delivery by the Trust on behalf of the Acquired Fund of the Agreement and the consummation of the
Reorganization herein contemplated do not require, under the laws of the Commonwealth of
Massachusetts or any state in which the Acquired Fund is qualified to do business, or the federal
laws of the United States, the consent, approval, authorization, registration, qualification or
order of, or filing with, any court or governmental agency or body (except such as have been
obtained under the 1933 Act, 1934 Act, the 1940 Act or the rules and regulations thereunder).
Counsel need express no opinion, however, as to any such consent, approval, authorization,
registration, qualification, order or filing which may be required as a result of the involvement
of other parties to this Agreement in the transactions herein contemplated because of their legal
or regulatory status or because of any other facts specifically pertaining to them.
(f) That the Acquiring Fund shall have obtained an opinion from K&L Gates, counsel for the Acquired
Fund, dated as of the Closing Date, addressed to the Acquiring Fund, and based upon such
representations of the parties as K&L Gates may reasonably request, that the consummation of the
Reorganization set forth in this Agreement complies with the requirements of a reorganization as
described in Section 368(a) of the Code.
(g) That the N-14 Registration Statement shall have become effective under the 1933 Act and no stop
order suspending such effectiveness shall have been instituted or, to the knowledge of the Acquired
Fund, be contemplated by the Commission.
11
(h) That the Acquired Fund’s custodian shall have delivered to the Acquiring Fund a certificate
identifying all assets of the Acquired Fund held or maintained by such custodian as of the
Valuation Time.
(i) That all proceedings taken by the Acquired Fund and its counsel in connection with the
Reorganization and all documents incidental thereto shall be satisfactory in form and substance to
the Acquiring Fund.
(j) That prior to the Closing Date, the Acquired Fund shall have declared a dividend or dividends
which, together with all such previous dividends, shall have the effect of distributing to its
shareholders all of its net investment company taxable income for the period to and including the
Closing Date, if any (computed without regard to any deduction for dividends paid), and all of its
net capital gain, if any, realized up to and including the Closing Date.
10. Termination, Postponement and Waivers.
(a) Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be
terminated and the Reorganization abandoned at any time (whether before or after adoption thereof
by the shareholders of the Acquired Fund) prior to the Closing Date, or the Closing Date may be
postponed,
(i) by consent of the Board of Trustees;
(ii) by the Board of Trustees if any condition of the Acquired Fund’s obligations set forth in
Section 8 of this Agreement has not been fulfilled or waived by such Board; or
(iii) by the Board of Trustees if any condition of the Acquiring Fund’s obligations set forth
in Section 9 of this Agreement has not been fulfilled or waived by such Board.
(b) If the Reorganization contemplated by this Agreement has not been consummated by March 1, 2008,
this Agreement automatically shall terminate on that date, unless a later date is set by the Board
of Trustees.
(c) In the event of termination of this Agreement pursuant to the provisions hereof, the same shall
become void and have no further effect, and there shall not be any liability on the part of the
Acquired Fund, the Acquiring Fund or persons who are their directors, trustees, officers, agents or
shareholders in respect of this Agreement.
(d) At any time prior to the Closing Date, any of the terms or conditions of this Agreement may be
waived by the Board of Trustees, if, in the judgment of such Board after consultation with its
counsel, such action or waiver will not have a material adverse effect on the benefits intended
under this Agreement to the shareholders of their respective Fund, on behalf of which such action
is taken.
(e) The respective representations and warranties contained in Sections 1 and 2 of this Agreement
shall expire with, and be terminated by, the consummation of the Reorganization, and the Acquired
Fund and the Acquiring Fund and the officers, trustees, agents or shareholders of such Funds shall
not have any liability with respect to such representations or warranties after the Closing Date.
This provision shall not protect any officer, trustee, agent or shareholder of either the Acquired
Fund or the Acquiring Fund against any liability to the entity for which that officer, trustee,
agent or shareholder so acts or to its shareholders, to which that officer, trustee, agent or
shareholder otherwise would be subject by reason of willful misfeasance, bad faith, gross
negligence, or reckless disregard of the duties in the conduct of such office.
(f) If any order or orders of the Commission with respect to this Agreement shall be issued prior
to the Closing Date and shall impose any terms or conditions which are determined by action of the
Boards of Trustees to be acceptable, such terms and conditions shall be binding as if a part of
this Agreement without further vote or approval of the shareholders of the Acquired Fund unless
such terms and conditions shall result in a change in the method of computing the number of Merger
Shares to be issued to the Acquired Fund, in which event, unless such terms and conditions shall
have been included in the proxy solicitation materials furnished to the shareholders of the
Acquired Fund prior to the meeting at which the Reorganization shall have been approved, this
Agreement shall not be
12
consummated and shall terminate unless the Acquired Fund promptly shall call a special meeting of
shareholders at which such conditions so imposed shall be submitted for approval.
11. Indemnification.
(a) Each party (an “Indemnitor”) shall indemnify and hold the other and its officers,
trustees, agents and persons controlled by or controlling any of them (each an “Indemnified
Party”) harmless from and against any and all losses, damages, liabilities, claims, demands,
judgments, settlements, deficiencies, taxes, assessments, charges, costs and expenses of any nature
whatsoever (including reasonable attorneys’ fees) including amounts paid in satisfaction of
judgments, in compromise or as fines and penalties, and counsel fees reasonably incurred by such
Indemnified Party in connection with the defense or disposition of any claim, action, suit or other
proceeding, whether civil or criminal, before any court or administrative or investigative body in
which such Indemnified Party may be or may have been involved as a party or otherwise or with which
such Indemnified Party may be or may have been threatened (collectively, the “Losses”)
arising out of or related to any claim of a breach of any representation, warranty or covenant made
herein by the Indemnitor; provided, however, that no Indemnified Party shall be indemnified
hereunder against any Losses arising directly from such Indemnified Party’s (i) willful
misfeasance, (ii) bad faith, (iii) gross negligence or (iv) reckless disregard of the duties
involved in the conduct of such Indemnified Party’s position.
(b) The Indemnified Party shall use its best efforts to minimize any liabilities, damages,
deficiencies, claims, judgments, assessments, costs and expenses in respect of which indemnity may
be sought hereunder. The Indemnified Party shall give written notice to Indemnitor within the
earlier of ten (10) days of receipt of written notice to Indemnified Party or thirty (30) days from
discovery by Indemnified Party of any matters which may give rise to a claim for indemnification or
reimbursement under this Agreement. The failure to give such notice shall not affect the right of
Indemnified Party to indemnity hereunder unless such failure has materially and adversely affected
the rights of the Indemnitor. At any time after ten (10) days from the giving of such notice,
Indemnified Party may, at its option, resist, settle or otherwise compromise, or pay such claim
unless it shall have received notice from Indemnitor that Indemnitor intends, at Indemnitor’s sole
cost and expense, to assume the defense of any such matter, in which case Indemnified Party shall
have the right, at no cost or expense to Indemnitor, to participate in such defense. If Indemnitor
does not assume the defense of such matter, and in any event until Indemnitor states in writing
that it will assume the defense, Indemnitor shall pay all costs of Indemnified Party arising out of
the defense until the defense is assumed; provided, however, that Indemnified Party shall consult
with Indemnitor and obtain Indemnitor’s prior written consent to any payment or settlement of any
such claim. Indemnitor shall keep Indemnified Party fully apprised at all times as to the status of
the defense. If Indemnitor does not assume the defense, Indemnified Party shall keep Indemnitor
apprised at all times as to the status of the defense. Following indemnification as provided for
hereunder, Indemnitor shall be subrogated to all rights of Indemnified Party with respect to all
third parties, firms or corporations relating to the matter for which indemnification has been
made.
12. Other Matters.
(a) All covenants, agreements, representations and warranties made under this Agreement and any
certificates delivered pursuant to this Agreement shall be deemed to have been material and relied
upon by each of the parties, notwithstanding any investigation made by them or on their behalf.
(b) All notices hereunder shall be sufficiently given for all purposes hereunder if in writing and
delivered personally or sent by registered mail or certified mail, postage prepaid. Notice to the
Acquired Fund shall be addressed to Xxxx Xxxxxxx U.S. Government Cash Reserve c/o Xxxx Xxxxxxx, 000
Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: General Counsel, or at such other address
as the Acquired Fund may designate by written notice to the Acquiring Fund. Notice to the
Acquiring Fund shall be addressed to Xxxx Xxxxxxx Money Market Fund c/o Xxxx Xxxxxxx, 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: General Counsel, or at such other address and to
the attention of such other person as the Acquiring Fund may designate by written notice to the
Acquired Fund. Any notice shall be deemed to have been served or given as of the date such notice
is delivered personally or mailed.
(c) This Agreement supersedes all previous correspondence and oral communications between the
parties regarding the Reorganization, constitutes the only understanding with respect to the
Reorganization, may not be
13
changed except by a letter of agreement signed by each party and shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts applicable to agreements made and
to be performed in said state.
(d) It is expressly agreed that the obligations of the Trust, on behalf of the Acquired Fund and
the Acquiring Fund, hereunder shall not be binding upon any of the trustees, shareholders,
nominees, officers, agents, or employees personally, but shall bind only the trust property of the
respective Fund as provided in the Trust Declaration. The execution and delivery of this Agreement
has been authorized by the Board of Trustees on behalf of the Acquired Fund and the Acquiring Fund
and signed by authorized officers of each respective Fund, acting as such, and neither such
authorization by such trustees, nor such execution and delivery by such officers, shall be deemed
to have been made by any of them individually or to impose any liability on any of them personally,
but shall bind only the trust property on behalf of the relevant Fund as provided in the Trust
Declaration.
(e) This Agreement may be executed in any number of counterparts, each of which, when executed and
delivered, shall be deemed to be an original but all such counterparts together shall constitute
but one instrument.
IN WITNESS WHEREOF, the parties have hereunto caused this Agreement to be executed and delivered by
their duly authorized officers as of the day and year first written above.
| XXXX XXXXXXX CURRENT INTEREST, on behalf of its series, Xxxx Xxxxxxx U.S. Government Cash Reserve |
||||
By:
|
/s/ Xxxxx X. Xxxxxxxxx | |||
Name:
|
||||
| Title: | President and Chief Executive Officer | |||
Attest:
|
/s/ Xxxxxx X. Xxxxxxxxx | |||
Name:
|
||||
Title:
|
Assistant Secretary | |||
| XXXX XXXXXXX CURRENT TRUST, on behalf of its series, Xxxx Xxxxxxx Money Market Fund |
||||
By:
|
/s/ Xxxxx X. Xxxxxxxxx | |||
Name:
|
||||
| Title: | President and Chief Executive Officer | |||
Attest:
|
/s/ Xxxxxx X. Xxxxxxxxx | |||
Name:
|
||||
Title:
|
Assistant Secretary | |||
| Agreed and accepted as to Section 5 only: | ||||
| XXXX XXXXXXX ADVISERS, LLC, on behalf of itself and its affiliates |
||||
By:
|
/s/ Xxxxxx Xxxxx | |||
Name:
|
||||
Title:
|
Vice President | |||
14
