AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the "Agreement") is made as of
May 23, 2007, by and between Xxxx Xxxxxxx Focused Equity Fund (the "Acquired
Fund") and Xxxx Xxxxxxx Mid Cap Equity Fund (the "Acquiring Fund")(together with
the Acquired Fund, the "Funds" or individually, each a "Fund"), each a series of
Xxxx Xxxxxxx Series Trust (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 Section 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 attributable to each class of its shares in exchange
for shares of the corresponding class of shares of the Acquiring Fund (the
"Merger Shares"), and the assumption by the Acquiring Fund of the liabilities of
the Acquired Fund and the distribution 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 Trust is 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. 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registration has not been revoked or rescinded and is in full force and effect.
Each of the Acquired Fund and the Acquiring Fund is a separate series of the
Trust duly established and designated in accordance with the applicable
provisions of the Trust's Amended and Restated Declaration of Trust dated March
8, 2005, as may be amended (the "Declaration of Trust"), and the 1940 Act.
The Trust's board of trustees (the "Board"): (i) has adopted and approved
this Agreement and the transactions hereby contemplated, and (ii) has determined
that participation therein is in the best interests of each Fund and that the
interests of the existing shareholders thereof will not be diluted as a result
of the Reorganization (as defined below).
All covenants and obligations of a Fund contained herein shall be deemed to
be covenants and obligations of the Trust acting on behalf of that Fund, and all
rights and benefits created hereunder in favor of a Fund shall inure to, and
shall be enforceable by, Trust acting on behalf of that Fund.
In order to consummate the reorganization contemplated by this Agreement
(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 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. 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 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.
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(c) The Acquired Fund has been furnished with the Acquiring Fund's annual
report for the fiscal year ended October 31, 2006, 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.
(d) 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 October 31, 2006, 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.
(e) 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, 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.
(f) 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 Funds' 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.
(g) Neither the Trust nor the Acquiring Fund is obligated under any provision
of the Declaration of Trust or the Trust's Amended and Restated By-laws dated
March 8, 2005, as may be amended (the "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.
(h) 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.
(i) 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).
(j) 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/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
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(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/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.
(k) 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.
(l) 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, except that
Class B shares of the Acquiring Fund are convertible into Class A shares of the
Acquiring Fund in the manner and on the terms described in the N-14 Registration
Statement.
(m) 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, Class B and Class C
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.
(n) 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.
(o) 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.
(p) 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 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. 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.
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(b) The Acquired Fund has elected to be, and has met the requirements of
subchapter M of Code for treatment as a 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.
(c) 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, 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.
(d) The Acquiring Fund has been furnished with the annual report of the
Acquired Fund for the fiscal year ended October 31, 2006, 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.
(e) 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 October 31, 2006, 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.
(f) 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 Funds' 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.
(g) 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.
(h) Neither the Trust nor the Acquired Fund is obligated under any provision of
the Declaration of Trust or 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.
(i) 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.
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(j) 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).
(k) 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.
(l) 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/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.
(m) 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"). The Acquired Fund
does not have outstanding any security convertible into any of the Acquired Fund
Shares, except that Class B shares of the Acquired Fund are convertible into
Class A shares of the Acquired Fund in the manner and on the terms described in
the N-14 Registration Statement.
(n) 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.
(o) 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.
(p) 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
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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.
(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 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 day 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 JHF 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, in the case of Class A, Class B and Class C shares of the Acquiring Fund,
to the value of the assets of the Acquired Fund attributable to Class A, Class B
and Class C shares of the Acquired Fund, respectively, on such date less the
value of the liabilities attributable to Class A, Class B and Class C shares of
the Acquired Fund assumed by the Acquiring Fund on that date, determined as
hereinafter provided in this Section 4.
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(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 Acquiring Fund Prospectus. 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.
(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 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.
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(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 under the 1933 Act of the Merger Shares 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.
(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, on behalf of the Acquired Fund:
(i) following the consummation of the Reorganization, terminate the
Acquired Fund in accordance with the laws of The Commonwealth of
Massachusetts, the Declaration of Trust and 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
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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 Fund shall mutually agree, as of the close of business on May
25, 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 this Agreement shall have been adopted, and the Reorganization shall
have been approved, by the Board and that the Acquiring Fund shall have
delivered to the Acquired Fund a copy of the resolution approving this Agreement
adopted by the Board certified by its Secretary (or Assistant 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) and its Treasurer (or Assistant
Treasurer), and a certificate signed by the Acquiring Fund's President (or any
Vice President) and its Treasurer (or Assistant 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) and
its Treasurer (or Assistant 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.
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(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, 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 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 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 or 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 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 Declaration of Trust); 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 (or Assistant Secretary).
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(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) and its Treasurer (or Assistant Treasurer), and a certificate
signed by the Acquired Fund's President (or any Vice President) and its
Treasurer (or Assistant 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 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) and
its Treasurer (or Assistant 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, 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, or 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;
A-11
(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.
(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, acting on behalf of the
Acquired Fund and Acquiring Fund;
(ii) by the Board of Trustees, on behalf of the Acquired Fund, 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, on behalf of the Acquiring Fund, 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 October 1, 2007, this Agreement automatically shall terminate on
that date, unless a later date is agreed to by the Board of Trustees, acting on
behalf of each of the Acquired Fund and Acquiring Fund.
(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, on behalf of whichever
Fund is entitled to the benefit thereof, 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 the 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.
A-12
(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 Board 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 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.
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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 the Xxxx Xxxxxxx Focused Equity Fund 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 the Xxxx Xxxxxxx Mid
Cap Equity Fund c/o 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 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 of the Trust, on behalf
of the Acquired Fund, and the Trust, on behalf of the Acquiring Fund, hereunder
shall not be binding upon any of its respective trustees, shareholders,
nominees, officers, agents, or employees personally, but shall bind only the
trust property as provided in the Declaration of Trust. The execution and
delivery of this Agreement has been authorized by the Board of Trustees on
behalf of the Acquired Fund and on behalf of 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 Declaration of Trust.
(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.
(THE REMAINDER OF THIS SPACE HAS BEEN INTENTIONALLY LEFT BLANK)
A-14
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 SERIES TRUST,
on behalf of its series, Xxxx Xxxxxxx Focused Equity Fund
By: /s/Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
Attest: /s/Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Assistant Secretary
XXXX XXXXXXX SERIES TRUST,
on behalf of its series, Xxxx Xxxxxxx Mid Cap Equity Fund
By: /s/Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
Attest: /s/Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Assistant Secretary
Agreed and accepted as to Section 5 only:
XXXX XXXXXXX INVESTMENT MANAGEMENT SERVICES, LLC
on behalf of itself and its affiliates
By: /s/Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Vice President
