Exhibit No. EX-99.4(a)
AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION ("Agreement"), made as of this
7th day of April 2005, by and between Voyageur Insured Funds, a statutory trust
created under the laws of the State of Delaware, with its principal place of
business at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, on behalf of
its series, Delaware Tax-Free Arizona Insured Fund ("Arizona Insured Fund"), and
Voyageur Mutual Funds, a statutory trust created under the laws of the State of
Delaware, with its principal place of business also at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, on behalf of its series, Delaware Tax-Free
Arizona Fund ("Arizona Fund").
PLAN OF REORGANIZATION
The reorganization (hereinafter referred to as the "Plan of
Reorganization") will consist of: (i) the acquisition by Voyageur Insured Funds
on behalf of Arizona Insured Fund of substantially all of the property, assets
and goodwill of Arizona Fund in exchange solely for (a) shares of beneficial
interest, no par value, of Arizona Insured Fund - Class A ("Arizona Insured Fund
Class A Shares"), (b) shares of beneficial interest, no par value, of Arizona
Insured Fund - Class B ("Arizona Insured Fund Class B Shares"), (c) shares of
beneficial interest, no par value, of Arizona Insured Fund - Class C ("Arizona
Insured Fund Class C Shares"), (d) shares of beneficial interest, no par value,
of Arizona Insured Fund - Class R ("Arizona Insured Fund Class R Shares"), (e)
shares of beneficial interest, no par value, of Arizona Insured Fund -
Institutional Class ("Arizona Insured Fund Institutional Class Shares"), and (f)
the assumption by Voyageur Insured Funds on behalf of Arizona Insured Fund of
all of the liabilities of Arizona Fund; (ii) the distribution of (a) Arizona
Insured Fund Class A shares to the shareholders of Arizona Fund - Class A Shares
("Arizona Fund Class A Shares"), (b) Arizona Insured Fund Class B Shares to the
shareholders of Arizona Fund - Class B Shares ("Arizona Fund Class B Shares"),
(c) Arizona Insured Fund Class C Shares to the shareholders of Arizona Fund -
Class C Shares ("Arizona Fund Class C Shares"), (d) Arizona Insured Fund Class R
Shares to the shareholders of Arizona Fund - Class R Shares ("Arizona Fund Class
R Shares"), and (e) Arizona Insured Fund Institutional Class Shares to the
shareholders of Arizona Fund - Institutional Class Shares ("Arizona Fund
Institutional Class Shares"), according to their respective interests in
complete liquidation of Arizona Fund; and (iii) the dissolution of Arizona Fund
as soon as practicable after the closing (as referenced in Section 3, hereof,
hereinafter called the "Closing"), all upon and subject to the terms and
conditions of this Agreement hereinafter set forth.
AGREEMENT
In order to consummate the Plan of Reorganization and in consideration of
the premises and of the covenants and agreements hereinafter set forth, and
intending to be legally bound, the parties hereto covenant and agree as follows:
1. Sale and Transfer of Assets and Liabilities, Liquidation and
Dissolution of Arizona Fund
(a) Subject to the terms and conditions of this Agreement, and in
reliance on the representations and warranties of Voyageur Insured Funds herein
contained, and in consideration of the delivery by Voyageur Insured Funds of the
number of its shares of beneficial interest of Arizona Insured Fund hereinafter
provided, Voyageur Mutual Funds, on behalf of Arizona Fund, agrees that it will
sell, convey, transfer and deliver to Voyageur Insured Funds, on behalf of
Arizona Insured Fund, at the Closing provided for in Section 3, all of the
liabilities, debts, obligations and duties of any nature, whether accrued,
absolute, contingent or otherwise ("Liabilities") and the then existing assets
of Arizona Fund as of the close of business (which hereinafter shall be, unless
otherwise noted, the regular close of business of the New York Stock Exchange,
Inc. ("NYSE")) ("Close of Business") on the valuation date (as defined in
Section 3 hereof, hereinafter called the "Valuation Date"), free and clear of
all liens, encumbrances, and claims whatsoever (other than shareholders' rights
of redemption and such restrictions as might arise under the Securities Act of
1933, as amended (the "1933 Act"), with respect to privately placed or otherwise
restricted securities that Arizona Fund may have acquired in the ordinary course
of business), except for cash, bank deposits, or cash equivalent securities in
an estimated amount necessary (1) to pay Arizona Fund's costs and expenses of
carrying out this Agreement (including, but not limited to, fees of counsel and
accountants, and expenses of its liquidation and dissolution contemplated
hereunder), which costs and expenses shall be established on the books of
Arizona Fund as liability reserves, (2) to discharge all of Arizona Fund's
Liabilities on its books at the Close of Business on the Valuation Date
including, but not limited to, its income dividends and capital gains
distributions, if any, payable for any period prior to, and through, the Close
of Business on the Valuation Date, and excluding those liabilities and
obligations that would otherwise be discharged at a later date in the ordinary
course of business, and (3) to pay such contingent liabilities as the trustees
of Voyageur Mutual Funds shall reasonably deem to exist against Arizona Fund, if
any, at the Close of Business on the Valuation Date, for which contingent and
other appropriate liability reserves shall be established on the books of
Arizona Fund (hereinafter "Net Assets"). Voyageur Mutual Funds, on behalf of
Arizona Fund, shall also retain any and all rights that it may have over and
against any person that may have accrued up to and including the Close of
Business on the Valuation Date. Voyageur Mutual Funds agrees to use commercially
reasonable efforts to identify all of Arizona Fund's Liabilities prior to the
Valuation Date and to discharge all such known Liabilities on or prior to the
Valuation Date.
(b) Subject to the terms and conditions of this Agreement, and in
reliance on the representations and warranties of Voyageur Mutual Funds on
behalf of Arizona Fund herein contained, and in consideration of such sale,
conveyance, transfer, and delivery, Voyageur Insured Funds agrees at the Closing
to assume the Liabilities, on behalf of Arizona Insured Fund, and to deliver to
Voyageur Mutual Funds on behalf of Arizona Fund: (i) the number of Arizona
Insured Fund Class A Shares, determined by dividing the net asset value per
share of Arizona Fund Class A Shares as of the Close of Business on the
Valuation Date by the net asset value per share of Arizona Insured Fund Class A
Shares as of Close of Business on the Valuation Date, and multiplying the result
by the number of outstanding shares of Arizona Fund Class A Shares as of Close
of Business on the Valuation Date; (ii) the number of Arizona Insured Fund Class
B Shares, determined by dividing the net asset value per share of Arizona Fund
Class B Shares as of Close of Business on the Valuation Date by the net asset
value per share of Arizona Insured Fund Class B Shares as of Close of Business
on the Valuation Date, and multiplying the result by the number of outstanding
shares of Arizona Fund Class B Shares as of Close of Business on the Valuation
Date; (iii) the number of Arizona Insured Fund Class C Shares, determined by
dividing the net asset value per share of Arizona Fund Class C Shares as of
Close of Business on the Valuation Date by the net asset value per share of
Arizona Insured Fund Class C Shares as of Close of Business on the Valuation
Date, and multiplying the result by the number of outstanding shares of Arizona
Fund Class C Shares as of Close of Business on the Valuation Date; (iv) the
number of Arizona Insured Fund Class R Shares, determined by dividing the net
asset value per share of Arizona Fund Class R Shares as of Close of Business on
the Valuation Date by the net asset value per share of Arizona Insured Fund
Class R Shares as of Close of Business on the Valuation Date, and multiplying
the result by the number of outstanding shares of Arizona Fund Class R Shares as
of Close of Business on the Valuation Date; and (v) the number of Arizona
Insured Fund Institutional Class Shares, determined by dividing the net asset
value per share of Arizona Fund Institutional Class Shares as of Close of
Business on the Valuation Date by the net asset value per share of Arizona
Insured Fund Institutional Class Shares as of Close of Business on the Valuation
Date, and multiplying the result by the number of outstanding shares of Arizona
Fund Institutional Class Shares as of Close of Business on the Valuation Date.
All such values shall be determined in the manner and as of the time set forth
in Section 2 hereof.
(c) As soon as practicable following the Closing, Voyageur Mutual
Funds shall dissolve Arizona Fund and distribute pro rata to Arizona Fund's
shareholders of record as of the Close of Business on the Valuation Date, the
shares of beneficial interest of Arizona Insured Fund received by Arizona Fund
pursuant to this Section 1. Such dissolution and distribution shall be
accomplished by the establishment of accounts on the share records of Arizona
Insured Fund of the type and in the amounts due such shareholders pursuant to
this Section 1 based on their respective holdings of shares of Arizona Fund as
of the Close of Business on the Valuation Date. Fractional shares of beneficial
interest of Arizona Insured Fund shall be carried to the third decimal place.
Unless requested, no certificates representing shares of beneficial interest of
Arizona Insured Fund will be issued to shareholders of Arizona Fund Shares
irrespective of whether such shareholders hold their shares in certificated
form.
(d) At the Closing, each outstanding certificate that, prior to
Closing, represented shares of beneficial interest of Arizona Fund, shall be
cancelled and shall no longer be evidence ownership; provided, however, that the
shareholders of Arizona Fund holding such certificates shall be entitled to
surrender such certificates to the transfer agent for Voyageur Insured Funds and
request in exchange therefor a certificate or certificates representing the
number of whole shares of beneficial interest of the class of Arizona Insured
Fund shares into which the corresponding shares of beneficial interest of
Arizona Fund theretofore represented by the certificate or certificates so
surrendered shall have been converted. Certificates for fractional shares of
beneficial interest of Arizona Insured Fund shall not be issued, but such
fractional shares shall continue to be carried by Voyageur Insured Funds in book
entry form for the account of such shareholder.
(e) At the Closing, each shareholder of record of Arizona Fund as of
the record date (the "Distribution Record Date") with respect to any unpaid
dividends and other distributions that were declared prior to the Closing,
including any dividend or distribution declared pursuant to Section 9(e) hereof,
shall have the right to receive such unpaid dividends and distributions with
respect to the shares of Arizona Fund that such person had on such Distribution
Record Date.
2. Valuation
(a) The value of Arizona Fund's Net Assets to be acquired by Arizona
Insured Fund hereunder shall be computed as of Close of Business on the
Valuation Date using the valuation procedures set forth in Arizona Fund's
currently effective prospectus and statement of additional information.
(b) The net asset value of a share of beneficial interest of Arizona
Insured Fund Class A Shares, Arizona Insured Fund Class B Shares, Arizona
Insured Fund Class C Shares, Arizona Insured Fund Class R Shares and Arizona
Insured Fund Institutional Class Shares shall be determined to the nearest full
cent as of the Close of Business on the Valuation Date using the valuation
procedures set forth in Arizona Insured Fund's currently effective prospectus
and statement of additional information.
(c) The net asset value of a share of beneficial interest of Arizona
Fund Class A Shares, Arizona Fund Class B Shares, Arizona Fund Class C Shares,
Arizona Fund Class R Shares and Arizona Fund Institutional Class Shares shall be
determined to the nearest full cent as of the Close of Business on the Valuation
Date, using the valuation procedures as set forth in Arizona Fund's currently
effective prospectus and statement of additional information.
3. Closing and Valuation Date
The Valuation Date shall be April 8, 2005, or such later date as the
parties may mutually agree. The Closing shall take place at the principal office
of Voyageur Insured Funds, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
at approximately 9:00 a.m. Eastern time on the first business day following the
Valuation Date. Notwithstanding anything herein to the contrary, in the event
that on the Valuation Date (a) the NYSE shall be closed to trading or trading
thereon shall be restricted or (b) trading or the reporting of trading on such
exchange or elsewhere shall be disrupted so that, in the judgment of Voyageur
Insured Funds or Voyageur Mutual Funds, accurate appraisal of the value of the
net assets of Arizona Fund or Arizona Insured Fund is impracticable, the
Valuation Date shall be postponed until the first business day after the day
when trading shall have been fully resumed without restriction or disruption,
reporting shall have been restored and accurate appraisal of the value of the
net assets of Arizona Fund and Arizona Insured Fund is practicable in the
judgment of Voyageur Insured Funds and Voyageur Mutual Funds. Voyageur Mutual
Funds shall have provided for delivery as of the Closing of those Net Assets of
Arizona Fund to be transferred to Voyageur Insured Funds' Custodian, Mellon
Bank, N.A., Xxx Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000. Also, Voyageur Mutual Funds
shall deliver at the Closing a list (which may be in electronic form) of names
and addresses of the shareholders of record of its Arizona Fund Shares, and the
number of full and fractional shares of beneficial interest of such classes
owned by each such shareholder, indicating thereon which such shares are
represented by outstanding certificates and which by book-entry accounts, all as
of the Close of Business on the Valuation Date, certified by its transfer agent,
or by its President or Vice-President to the best of their knowledge and belief.
Voyageur Insured Funds shall issue and deliver a certificate or certificates
evidencing the shares of Arizona Insured Fund to be delivered at the Closing to
said transfer agent registered in such manner as Voyageur Mutual Funds may
request, or provide evidence satisfactory to Voyageur Mutual Funds in such
manner as Voyageur Mutual Funds may request that such shares of beneficial
interest of Arizona Insured Fund have been registered in an open account on the
books of Arizona Insured Fund.
4. Representations and Warranties by Voyageur Mutual Funds
Voyageur Mutual Funds represents and warrants to Voyageur Insured Funds
that:
(a) Voyageur Mutual Funds is a statutory trust created under the laws
of the State of Delaware on December 17, 1998, and is validly existing and in
good standing under the laws of that State. Voyageur Mutual Funds, of which
Arizona Fund is a separate series, is duly registered under the Investment
Company Act of 1940, as amended (the "1940 Act") as an open-end, management
investment company. Such registration is in full force and effect as of the date
hereof and will be in full force and effect as of the Closing and all of its
shares sold have been sold pursuant to an effective registration statement filed
under the 1933 Act, except for any shares sold pursuant to the private offering
exemption for the purpose of raising initial capital.
(b) Voyageur Mutual Funds is authorized to issue an unlimited number
of shares of beneficial interest of Arizona Fund, with no par value. Each
outstanding share of Arizona Fund is validly issued, fully paid, non-assessable
and has full voting rights and, except for any such shares sold pursuant to the
private offering exemption for purposes of raising initial capital, is freely
transferable.
(c) The financial statements appearing in Arizona Fund Annual Report
to Shareholders for the fiscal year ended August 31, 2004, audited by Xxxxxx &
Xxxxx, LLP, copies of which have been delivered to Voyageur Insured Funds, and
any unaudited financial statements, copies of which may be furnished to Voyageur
Insured Funds, fairly present the financial position of Arizona Fund as of the
date indicated, and the results of its operations for the period indicated, in
conformity with generally accepted accounting principles applied on a consistent
basis.
(d) The books and records of Arizona Fund made available to Voyageur
Insured Funds and/or its counsel are true and correct in all material respects
and contain no material omissions with respect to the business and operations of
Arizona Fund.
(e) The statement of assets and liabilities to be furnished by Voyageur
Mutual Funds as of the Close of Business on the Valuation Date for the purpose
of determining the number of shares of beneficial interest of Arizona Insured
Fund to be issued pursuant to Section 1 hereof will accurately reflect the Net
Assets of Arizona Fund and outstanding shares of beneficial interest, as of such
date, in conformity with generally accepted accounting principles applied on a
consistent basis.
(f) At the Closing, it will have good and marketable title to all of the
securities and other assets shown on the statement of assets and liabilities
referred to in subsection (e) above, free and clear of all liens or encumbrances
of any nature whatsoever except such restrictions as might arise under the 1933
Act with respect to privately placed or otherwise restricted securities that it
may have acquired in the ordinary course of business and such imperfections of
title or encumbrances as do not materially detract from the value or use of the
assets subject thereto, or materially affect title thereto.
(g) Voyageur Mutual Funds has the necessary power and authority to
conduct its business and the business of Arizona Fund as such businesses are now
being conducted.
(h) Voyageur Mutual Funds is not a party to or obligated under any
provision of its Agreement and Declaration of Trust, By-Laws, or any material
contract or any other material commitment or obligation, and is not subject to
any order or decree that would be violated by its execution of or performance
under this Agreement.
(i) Voyageur Mutual Funds has full power and authority to enter into
and perform its obligations under this Agreement, subject to approval of the
Plan of Reorganization by Arizona Fund's shareholders. Except as provided in the
immediately preceding sentence, the execution, delivery and performance of this
Agreement have been validly authorized, executed and delivered by it, and this
Agreement constitutes its legal, valid and binding obligation enforceable
against it in accordance with its terms, subject as to enforcement to the effect
of bankruptcy, insolvency, reorganization, arrangement among creditors,
moratorium, fraudulent transfer or conveyance, and other similar laws of general
applicability relating to or affecting creditor's rights and to general equity
principles.
(j) Neither Voyageur Mutual Funds nor Arizona Fund is under the
jurisdiction of a Court in a Title 11 or similar case within the meaning of
Section 368(a)(3)(A) of the Internal Revenue Code of 1986, as amended (the
"Code").
(k) Voyageur Mutual Funds does not have any unamortized or unpaid
organizational fees or expenses.
(l) Voyageur Mutual Funds has elected to treat Arizona Fund as a
regulated investment company ("RIC") for federal income tax purposes under Part
I of Subchapter M of the Code, Arizona Fund is a "fund" as defined in Section
851(g)(2) of the Code, has qualified as a RIC for each taxable year since its
inception and will qualify as a RIC as of the Closing, and consummation of the
transactions contemplated by the Plan will not cause it to fail to be qualified
as a RIC as of the Closing.
5. Representations and Warranties by Voyageur Insured Funds
Voyageur Insured Funds represents and warrants to Voyageur Mutual Funds
that:
(a) Voyageur Insured Funds is a statutory trust created under the laws
of the State of Delaware on December 17, 1998, and is validly existing and in
good standing under the laws of that State. Voyageur Insured Funds, of which
Arizona Insured Fund is a separate series of shares, is duly registered under
the 1940 Act as an open-end, management investment company, such registration is
in full force and effect as of the date hereof or will be in full force and
effect as of the Closing and all of its shares sold have been sold pursuant to
an effective registration statement filed under the 1933 Act, except for any
shares sold pursuant to the private offering exemption for the purpose of
raising initial capital.
(b) Voyageur Insured Funds is authorized to issue an unlimited number
of shares of beneficial interest, without par value, of Arizona Insured Fund.
Each outstanding share of Arizona Insured Fund is fully paid, non-assessable and
has full voting rights and, except for any shares sold pursuant to the private
offering exemption for purposes of raising initial capital, is freely
transferable. The shares of beneficial interest of Arizona Insured Fund to be
issued pursuant to Section 1 hereof will, upon their issuance, be validly issued
and fully paid and non-assessable, freely transferable and have full voting
rights.
(c) At the Closing, each class of shares of beneficial interest of
Arizona Insured Fund to be issued pursuant to this Agreement will be eligible
for offering to the public in those states of the United States and
jurisdictions in which the corresponding class of shares of Arizona Fund are
presently eligible for offering to the public, and there are an unlimited number
of shares registered under the 1933 Act such that there is a sufficient number
of such shares to permit the transfers contemplated by this Agreement to be
consummated.
(d) The statement of assets and liabilities of Arizona Insured Fund to
be furnished by Voyageur Insured Funds as of the Close of Business on the
Valuation Date for the purpose of determining the number of shares of beneficial
interest of Arizona Insured Fund to be issued pursuant to Section 1 hereof will
accurately reflect the net assets of Arizona Insured Fund and outstanding shares
of beneficial interest, as of such date, in conformity with generally accepted
accounting principles applied on a consistent basis.
(e) At the Closing, Voyageur Insured Funds will have good and
marketable title to all of the securities and other assets shown on the
statement of assets and liabilities referred to in subsection (d) above, free
and clear of all liens or encumbrances of any nature whatsoever except such
restrictions as might arise under the 1933 Act with respect to privately placed
or otherwise restricted securities that it may have acquired in the ordinary
course of business and such imperfections of title or encumbrances as do not
materially detract from the value or use of the assets subject thereto, or
materially affect title thereto.
(f) Voyageur Insured Funds has the necessary power and authority to
conduct its business and the business of Arizona Insured Fund as such businesses
are now being conducted.
(g) Voyageur Insured Funds is not a party to or obligated under any
provision of its Agreement and Declaration of Trust, By-Laws, or any material
contract or any other material commitment or obligation, and is not subject to
any order or decree that would be violated by its execution of or performance
under this Agreement.
(h) Voyageur Insured Funds has full power and authority to enter into
and perform its obligations under this Agreement. The execution, delivery and
performance of this Agreement have been validly authorized, executed and
delivered by it, and this Agreement constitutes its legal, valid and binding
obligation enforceable against it in accordance with its terms, subject to
enforcement to the effect of bankruptcy, insolvency reorganization, arrangements
among creditors, moratorium, fraudulent transfer or conveyance, and other
similar laws of general applicability relating to or affecting creditors rights
and to general equity principles.
(i) Neither Voyageur Insured Funds nor Arizona Insured Fund is under
the jurisdiction of a Court in a Title 11 or similar case within the meaning of
Section 368(a)(3)(A) of the Code.
(j) The books and records of Arizona Insured Fund made available to
Voyageur Mutual Funds and/or its counsel are true and correct in all material
respects and contain no material omissions with respect to the business and
operations of Arizona Insured Fund.
(k) Voyageur Insured Funds has elected to treat Arizona Insured Fund
as a regulated investment company ("RIC") for federal income tax purposes under
Part I of Subchapter M of the Code, Arizona Insured Fund is a "fund" as defined
in Section 851(g)(2) of the Code, has qualified as a RIC for each taxable year
since its inception and will qualify as a RIC as of the Closing, and
consummation of the transactions contemplated by the Plan will not cause it to
fail to be qualified as a RIC as of the Closing.
6. Representations and Warranties by Voyageur Mutual Funds and Voyageur
Insured Funds
Voyageur Mutual Funds and Voyageur Insured Funds each represents and
warrants to the other that:
(a) Except as discussed in its currently effective prospectus, there
are no legal, administrative or other proceedings or investigations against it,
or, to its knowledge, threatened against it, that would materially affect its
financial condition or its ability to consummate the transactions contemplated
by this Agreement. It is not charged with or, to its 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 its business.
(b) There are no known actual or proposed deficiency assessments with
respect to any taxes payable by it.
(c) It has duly and timely filed, on behalf of Arizona Fund or Arizona
Insured Fund, as appropriate, all Tax (as defined below) returns and reports
(including information returns), which are required to be filed by such Arizona
Fund or Arizona Insured Fund, and all such returns and reports accurately state
the amount of Tax owed for the periods covered by the returns, or, in the case
of information returns, the amount and character of income required to be
reported by such Arizona Fund or Arizona Insured Fund. On behalf of Arizona Fund
or Arizona Insured Fund, as appropriate, it has paid or made provision and
properly accounted for all Taxes (as defined below) due or properly shown to be
due on such returns and reports. The amounts set up as provisions for Taxes in
the books and records of Arizona Fund or Arizona Insured Fund, as appropriate,
as of the Close of Business on the Valuation Date will, to the extent required
by generally accepted accounting principles, be sufficient for the payment of
all Taxes of any kind, whether accrued, due, absolute, contingent or otherwise,
which were or which may be payable by Arizona Fund or Arizona Insured Fund, as
appropriate, for any periods or fiscal years prior to and including the Close of
Business on the Valuation Date, including all Taxes imposed before or after the
Close of Business on the Valuation Date that are attributable to any such period
or fiscal year. No return filed by it, on behalf of Arizona Fund or Arizona
Insured Fund, as appropriate, is currently being audited by the Internal Revenue
Service or by any state or local taxing authority. As used in this Agreement,
"Tax" or "Taxes" means all federal, state, local and foreign (whether imposed by
a country or political subdivision or authority thereunder) income, gross
receipts, excise, sales, use, value added, employment, franchise, profits,
property, ad valorem or other taxes, stamp taxes and duties, fees, assessments
or charges, whether payable directly or by withholding, together with any
interest and any penalties, additions to tax or additional amounts imposed by
any taxing authority (foreign or domestic) with respect thereto. To its
knowledge, there are no levies, liens or encumbrances relating to Taxes
existing, threatened or pending with respect to the assets of Arizona Fund or
Arizona Insured Fund, as appropriate.
(d) All information provided to Voyageur Mutual Funds by Voyageur
Insured Funds, and by Voyageur Mutual Funds to Voyageur Insured Funds, for
inclusion in, or transmittal with, the Combined Proxy Statement and Prospectus
with respect to this Agreement pursuant to which approval of Arizona Fund
shareholders will be sought, shall not contain any untrue statement of a
material fact, or omit to state a material fact required to be stated in order
to make the statements made therein, in light of the circumstances under which
they were made, not misleading.
(e) Except in the case of Voyageur Mutual Funds with respect to the
approval of Arizona Fund's shareholders of the Agreement, no consent, approval,
authorization or order of any court or governmental authority, or of any other
person or entity, is required for the consummation of the transactions
contemplated by this Agreement, except as may be required by the 1933 Act, the
Securities Exchange Act of 1934, as amended (the "1934 Act"), the 1940 Act, or
state securities laws or Delaware statutory trust laws (including, in the case
of each of the foregoing, the rules and regulations thereunder).
7. Covenants of Voyageur Mutual Funds
(a) Voyageur Mutual Funds covenants to operate business of Arizona
Fund as presently conducted between the date hereof and the Closing.
(b) Voyageur Mutual Funds undertakes that Arizona Fund will not
acquire the shares of beneficial interest of Arizona Insured Fund for the
purpose of making distributions thereof other than to Arizona Fund's
shareholders.
(c) Voyageur Mutual Funds covenants that by the Closing, all of
Arizona Fund's federal and other Tax returns and reports required by law to be
filed on or before such date shall have been filed and all federal and other
Taxes shown as due on said returns shall have either been paid or adequate
liability reserves shall have been provided for the payment of such Taxes.
(d) Voyageur Mutual Funds will at the Closing provide Voyageur Insured
Funds with:
(1) A statement of the respective tax basis of all investments to
be transferred by Arizona Fund to Arizona Insured Fund.
(2) A copy (which may be in electronic form) of the shareholder
ledger accounts including, without limitation, the name, address and
taxpayer identification number of each shareholder of record, the
number of shares of beneficial interest held by each shareholder, the
dividend reinvestment elections applicable to each shareholder, and
the backup withholding and nonresident alien withholding
certifications, notices or records on file with Arizona Fund with
respect to each shareholder, for all of the shareholders of record of
Arizona Fund's shares as of the Close of Business on the Valuation
Date, who are to become holders of Arizona Insured Fund as a result of
the transfer of assets that is the subject of this Agreement,
certified by its transfer agent or its President or its Vice-President
to the best of their knowledge and belief.
(e) The Board of Trustees of Voyageur Mutual Funds shall call and
Voyageur Mutual Funds shall hold, a Special Meeting of Arizona Fund's
shareholders to consider and vote upon this Agreement (the "Special Meeting")
and Voyageur Mutual Funds shall take all other actions reasonably necessary to
obtain approval of the transactions contemplated herein. Voyageur Mutual Funds
agrees to mail to each shareholder of record entitled to vote at the Special
Meeting at which action on this Agreement is to be considered, in sufficient
time to comply with requirements as to notice thereof, a Combined Proxy
Statement and Prospectus that complies in all material respects with the
applicable provisions of Section 14(a) of the 1934 Act, and Section 20(a) of the
1940 Act, and the rules and regulations promulgated thereunder.
(f) Voyageur Mutual Funds shall supply to Voyageur Insured Funds, at
the Closing, the statement of the assets and liabilities described in Section
4(e) of this Agreement in conformity with the requirements described in such
Section.
8. Covenants of Voyageur Insured Funds
(a) Voyageur Insured Funds covenants that the shares of beneficial
interest of Arizona Insured Fund to be issued and delivered to Arizona Fund
pursuant to the terms of Section 1 hereof shall have been duly authorized as of
the Closing and, when so issued and delivered, shall be registered under the
1933 Act, validly issued, and fully paid and non-assessable, and no shareholder
of Arizona Insured Fund shall have any statutory or contractual preemptive right
of subscription or purchase in respect thereof.
(b) Voyageur Insured Funds covenants to operate the business of
Arizona Insured Fund as presently conducted between the date hereof and the
Closing.
(c) Voyageur Insured Funds covenants that by the Closing, all of
Arizona Insured Fund's federal and other tax returns and reports required by law
to be filed on or before such date shall have been filed and all federal and
other taxes shown as due on said returns shall have either been paid or adequate
liability reserves shall have been provided for the payment of such taxes.
(d) Voyageur Insured Funds shall supply to Voyageur Mutual Funds, at
the Closing, the statement of assets and liabilities described in Section 5(d)
of this Agreement in conformity with the requirements described in such Section.
(e) Voyageur Insured Funds will file with the United States Securities
and Exchange Commission (the "Commission") a Registration Statement on Form N-14
under the 1933 Act ("Registration Statement"), relating to the shares of
beneficial interest of Arizona Insured Fund issuable hereunder, and will use its
best efforts to provide that such Registration Statement becomes effective as
promptly as practicable. At the time such Registration Statement becomes
effective, it (i) will comply in all material respects with the applicable
provisions of the 1933 Act, the 1934 Act and the 1940 Act, and the rules and
regulations promulgated thereunder; and (ii) will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading. At
the time the Registration Statement becomes effective, at the time of Arizona
Fund's shareholders' meeting, and at the Closing, the prospectus and statement
of additional information included in the Registration Statement will not
contain an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
9. Conditions Precedent to be Fulfilled by Voyageur Mutual Funds and
Voyageur Insured Funds
The obligations of Voyageur Mutual Funds and Voyageur Insured Funds to
effectuate this Agreement and the Plan of Reorganization hereunder shall be
subject to the following respective conditions:
(a) That (1) all the representations and warranties of the other party
contained herein shall be true and correct in all material respects as of the
Closing with the same effect as though made as of and at such date; (2) the
other party shall have performed all obligations required by this Agreement to
be performed by it at or prior to the Closing; and (3) the other party shall
have delivered to such party a certificate signed by the President or
Vice-President and by the Secretary or equivalent officer to the foregoing
effect.
(b) That the other party shall have delivered to such party a copy of
the resolutions approving this Agreement adopted by the other party's Board of
Trustees, certified by the Secretary or equivalent officer.
(c) That the Commission shall not have issued an unfavorable advisory
report under Section 25(b) of the 1940 Act, nor instituted nor threatened to
institute any proceeding seeking to enjoin the consummation of the
reorganization contemplated hereby under Section 25(c) of the 1940 Act, and no
other legal, administrative or other proceeding shall be instituted or
threatened that would materially and adversely affect the financial condition of
either party or would prohibit the transactions contemplated hereby.
(d) That this Agreement and the Plan of Reorganization and the
transactions contemplated hereby shall have been approved by the appropriate
action of the shareholders of Arizona Fund at an annual or special meeting or
any adjournment thereof.
(e) That Arizona Fund shall have declared a distribution or
distributions prior to the Valuation Date that, together with all previous
distributions, shall have the effect of distributing to its shareholders (i) all
of its ordinary income and all of its capital gain net income, if any, for the
period from the close of its last fiscal year to the Close of Business on the
Valuation Date, and (ii) any undistributed ordinary income and capital gain net
income from any prior period. Capital gain net income has the meaning given such
term by Section 1222(g) of the Code.
(f) That all required consents of other parties and all other
consents, orders and permits of federal, state and local authorities (including
those of the U.S. Securities and Exchange Commission and of state Blue Sky
securities authorities, including any necessary "no-action" positions or
exemptive orders from such federal and state authorities) to permit consummation
of the transaction contemplated hereby shall have been obtained, except where
failure to obtain any such consent, order or permit would not involve risk of
material adverse effect on the assets and properties of Arizona Fund or Arizona
Insured Fund.
(g) That prior to or at the Closing, Voyageur Mutual Funds and
Voyageur Insured Funds shall receive an opinion from Xxxxxxxx Ronon Xxxxxxx &
Young, LLP ("SRSY") to the effect that, provided the acquisition contemplated
hereby is carried out in accordance with this Agreement and in accordance with
customary representations provided by Voyageur Mutual Funds and Voyageur Insured
Funds in certificates delivered to SRSY:
(1) The acquisition by Arizona Insured Fund of substantially all
of the assets and the assumption of the liabilities of Arizona Fund in
exchange solely for Arizona Insured Fund shares to be issued pursuant
to Section 1 hereof, followed by the distribution by Arizona Fund to
its shareholders of Arizona Insured Fund shares in complete
liquidation of Arizona Fund, will qualify as a reorganization within
the meaning of Section 368(a)(1) of the Code, and Arizona Insured Fund
and Arizona Fund will each be a "party to the reorganization" within
the meaning of Section 368(b) of the Code;
(2) No gain or loss will be recognized by Arizona Fund upon the
transfer of substantially all of its assets to and the assumption of
the liabilities by Arizona Fund in exchange solely for the voting
shares of Arizona Insured Fund (to be issued in accordance with
Section 1 hereof) under Section 361(a) and Section 357(a) of the Code;
(3) No gain or loss will be recognized by Arizona Insured Fund
upon the receipt by it of substantially all of the assets and the
assumption of the liabilities of Arizona Fund in exchange solely for
the voting shares of Arizona Insured Fund (to be issued in accordance
with Section 1 hereof) under Section 1032(a) of the Code;
(4) No gain or loss will be recognized by Arizona Fund upon the
distribution of Arizona Insured Fund shares to Arizona Fund
shareholders in accordance with Section 1 hereof in liquidation of
Arizona Fund under Section 361(c)(1) of the Code;
(5) The basis of the assets of Arizona Fund received by Arizona
Insured Fund will be the same as the basis of such assets to Arizona
Fund immediately prior to the exchange under Section 362(b) of the
Code;
(6) The holding period of the assets of Arizona Fund received by
Arizona Insured Fund will include the period during which such assets
were held by Arizona Fund under Section 1223(2) of the Code;
(7) No gain or loss will be recognized by the shareholders of
Arizona Fund upon the exchange of their shares in Arizona Fund for the
voting shares (including fractional shares to which they may be
entitled) of Arizona Insured Fund (to be issued in accordance with
Section 1 hereof) under Section 354(a) of the Code;
(8) The basis of Arizona Insured Fund shares received by Arizona
Fund shareholders in accordance with Section 1 hereof (including
fractional shares to which they may be entitled) will be the same as
the basis of the shares of Arizona Fund exchanged therefor under
Section 358(a)(1) of the Code;
(9) The holding period of Arizona Insured Fund's shares received
by Arizona Fund's shareholders in accordance with Section 1 hereof
(including fractional shares to which they may be entitled) will
include the holding period of Arizona Fund's shares surrendered in
exchange therefor, provided that Arizona Fund shares were held as a
capital asset on the date of the Reorganization under Section 1223(l)
of the Code; and
(10) Arizona Insured Fund will succeed to and take into account
as of the date of the transfer (as defined in Section 1.381(b)-1(b) of
the regulations issued by the United States Treasury (the "Treasury
Regulations")) the items of Arizona Fund described in Section 381(c)
of the Code, subject to the conditions and limitations specified in
Sections 381, 382, 383 and 384 of the Code, and the Treasury
Regulations.
(h) That Voyageur Insured Funds shall have received an opinion in form
and substance reasonably satisfactory to it from SRSY, counsel to Voyageur
Mutual Funds, to the effect that, subject in all respects to the effects of
bankruptcy, insolvency, arrangement among creditors, moratorium, fraudulent
transfer or conveyance, and other similar laws of general applicability relating
to or affecting creditor's rights and to general equity principles:
(1) Voyageur Mutual Funds was created as a statutory trust
(formerly known as a business trust) under the laws of the State of
Delaware on December 17, 1998, and is validly existing and in good
standing under the laws of the State of Delaware;
(2) Voyageur Mutual Funds is authorized to issue an unlimited
number of shares of beneficial interest, without par value, of
Voyageur Mutual Funds and of Arizona Fund. Assuming that the initial
shares of beneficial interest of Arizona Fund were issued in
accordance with the 1940 Act, and the Agreement and Declaration of
Trust and By-Laws of Voyageur Mutual Funds, and that all other such
outstanding shares of Arizona Fund were sold, issued and paid for in
accordance with the terms of Arizona Fund prospectus in effect at the
time of such sales, each such outstanding share is validly issued,
fully paid, non-assessable and has full voting rights and, except for
any shares sold pursuant to the private offering exemption for
purposes of raising initial capital, is freely transferable;
(3) Voyageur Mutual Funds is an open-end, investment company of
the management type registered as such under the 1940 Act;
(4) Except as disclosed in Arizona Fund's currently effective
prospectus, such counsel does not know of any material suit, action,
or legal or administrative proceeding pending or threatened against
Voyageur Mutual Funds, the unfavorable outcome of which would
materially and adversely affect Voyageur Mutual Funds or Arizona Fund;
(5) To such counsel's knowledge, no consent, approval,
authorization or order of any court, governmental authority or agency
is required for the consummation by Voyageur Mutual Funds of the
transactions contemplated by this Agreement, except such as have been
obtained under the 1933 Act, the 1934 Act, the 1940 Act, and Delaware
laws (including, in the case of each of the foregoing, the rules and
regulations thereunder) and such as may be required under state
securities laws;
(6) Neither the execution, delivery nor performance of this
Agreement by Voyageur Mutual Funds violates any provision of its
Agreement and Declaration of Trust, its By-Laws, or the provisions of
any agreement or other instrument, known to such counsel to which
Voyageur Mutual Funds is a party or by which Voyageur Mutual Funds is
otherwise bound; and
(7) This Agreement has been validly authorized, executed and
delivered by Voyageur Mutual Funds and represents the legal, valid and
binding obligation of Voyageur Mutual Funds and is enforceable against
Voyageur Mutual Funds in accordance with its terms.
In giving the opinions set forth above, SRSY may state that it is
relying on certificates of the officers of Voyageur Mutual Funds with regard to
matters of fact and certain certifications and written statements of
governmental officials with respect to the good standing of Voyageur Mutual
Funds.
(i) That Voyageur Mutual Funds shall have received an opinion in form
and substance reasonably satisfactory to it from SRSY, counsel to Voyageur
Insured Funds, to the effect that, subject in all respects to the effects of
bankruptcy, insolvency, arrangement among creditors, moratorium, fraudulent
transfer or conveyance, and other similar laws of general applicability relating
to or affecting creditor's rights and to general equity principles:
(1) Voyageur Insured Funds was created as a statutory trust
(formerly known as a business trust) under the laws of the State of
Delaware on December 17, 1998, and is validly existing and in good
standing under the laws of the State of Delaware;
(2) Voyageur Insured Funds is authorized to issue an unlimited
number of shares of beneficial interest, without par value. Assuming
that the initial shares of beneficial interest of Arizona Insured Fund
were issued in accordance with the 1940 Act and Voyageur Insured
Funds' Agreement and Declaration of Trust and By-Laws, and that all
other such outstanding shares of Arizona Insured Fund were sold,
issued and paid for in accordance with the terms of Arizona Insured
Fund's prospectus in effect at the time of such sales, each such
outstanding share is validly issued, fully paid, non-assessable and
has full voting rights and, except for any shares sold pursuant to the
private offering exemption for purposes of raising initial capital, is
freely transferable;
(3) Voyageur Insured Funds is an open-end investment company of
the management type registered as such under the 1940 Act;
(4) Except as disclosed in Arizona Insured Fund's currently
effective prospectus, such counsel does not know of any material suit,
action, or legal or administrative proceeding pending or threatened
against Voyageur Insured Funds, the unfavorable outcome of which would
materially and adversely affect Voyageur Insured Funds or Arizona
Insured Fund;
(5) The shares of beneficial interest of Arizona Insured Fund to
be issued pursuant to the terms of Section 1 hereof have been duly
authorized and, when issued and delivered as provided in this
Agreement, will have been validly issued and fully paid and will be
non-assessable by Voyageur Insured Funds or Arizona Insured Fund, and
to such counsel's knowledge, no shareholder has any preemptive right
to subscription or purchase in respect thereof;
(6) To such counsel's knowledge, no consent, approval,
authorization or order of any court, governmental authority or agency
is required for the consummation by Voyageur Insured Funds of the
transactions contemplated by this Agreement, except such as have been
obtained under the 1933 Act, the 1934 Act, the 1940 Act, and Delaware
laws (including, in the case of each of the foregoing, the rules and
regulations thereunder and such as may be required under state
securities laws);
(7) Neither the execution, delivery nor performance of this
Agreement by Voyageur Insured Funds violates any provision of its
Agreement and Declaration of Trust, its By-Laws, or the provisions of
any agreement or other instrument, known to such counsel to which
Voyageur Insured Funds is a party or by which Voyageur Insured Funds
is otherwise bound; and
(8) This Agreement has been validly authorized, executed and
delivered by Voyageur Insured Funds and represents the legal, valid
and binding obligation of Voyageur Insured Funds and is enforceable
against Voyageur Insured Funds in accordance with its terms.
In giving the opinions set forth above, SRSY may state that it is
relying on certificates of the officers of Voyageur Insured Funds with regard to
matters of fact and certain certifications and written statements of
governmental officials with respect to the good standing of Voyageur Insured
Funds.
(j) That Voyageur Insured Funds' Registration Statement with respect
to the shares of beneficial interest of Arizona Insured Fund to be delivered to
Arizona Fund's shareholders in accordance with Section 1 hereof shall have
become effective, and no stop order suspending the effectiveness of the
Registration Statement or any amendment or supplement thereto, shall have been
issued prior to the Closing or shall be in effect at the Closing, and no
proceedings for the issuance of such an order shall be pending or threatened on
that date.
(k) That the shares of beneficial interest of Arizona Insured Fund to
be delivered in accordance with Section 1 hereof shall be eligible for sale by
Voyageur Insured Funds with each state commission or agency with which such
eligibility is required in order to permit the shares lawfully to be delivered
to each Arizona Fund shareholder.
(l) That at the Closing, Voyageur Mutual Funds, on behalf of Arizona
Fund, transfers to Arizona Insured Fund aggregate Net Assets of Arizona Fund
comprising at least 90% in fair market value of the total net assets and 70% in
fair market value of the total gross assets recorded on the books of Arizona
Fund at the Close of Business on the Valuation Date.
10. Fees and Expenses; Other Agreements
(a) The expenses of entering into and carrying out the provisions of
this Agreement, whether or not consummated, shall be borne as follows: 33.33% by
Arizona Fund; 33.33% by Arizona Insured Fund; and 33.34% by Delaware Management
Company, a series of Delaware Management Business Trust.
(b) Any other provision of this Agreement to the contrary
notwithstanding, any liability of Voyageur Mutual Funds under this Agreement
with respect to any series of Voyageur Mutual Funds, or in connection with the
transactions contemplated herein with respect to any series of Voyageur Mutual
Funds, shall be discharged only out of the assets of that series of Voyageur
Mutual Funds, and no other series of Voyageur Mutual Funds shall be liable with
respect thereto.
(c) Any other provision of this Agreement to the contrary
notwithstanding, any liability of Voyageur Insured Funds under this Agreement
with respect to any series of Voyageur Insured Funds, or in connection with the
transactions contemplated herein with respect to any series of Voyageur Insured
Funds, shall be discharged only out of the assets of that series of Voyageur
Insured Funds, and no other series of Voyageur Insured Funds shall be liable
with respect thereto.
11. Termination; Waiver; Order
(a) Anything contained in this Agreement to the contrary
notwithstanding, this Agreement may be terminated and the Plan of Reorganization
abandoned at any time (whether before or after adoption thereof by the
shareholders of Arizona Fund) prior to the Closing as follows:
(1) by mutual consent of Voyageur Mutual Funds and Voyageur
Insured Funds;
(2) by Voyageur Insured Funds if any condition precedent to its
obligations set forth in Section 9 has not been fulfilled or waived by
Voyageur Insured Funds; or
(3) by Voyageur Mutual Funds if any condition precedent to its
obligations set forth in Section 9 has not been fulfilled or waived by
Voyageur Mutual Funds.
(b) If the transactions contemplated by this Agreement have not been
consummated by December 31, 2005, this Agreement shall automatically terminate
on that date, unless a later date is agreed to by both Voyageur Mutual Funds and
Voyageur Insured Funds.
(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 either Voyageur Mutual Funds or
Voyageur Insured Funds or persons who are their trustees, officers, agents or
shareholders in respect of this Agreement.
(d) At any time prior to the Closing, any of the terms or conditions
of this Agreement may be waived by either Voyageur Mutual Funds or Voyageur
Insured Funds, respectively (whichever is entitled to the benefit thereof).
(e) The respective representations, warranties and covenants contained
in Sections 4-8 hereof shall expire with, and be terminated by, the consummation
of the Plan of Reorganization, and neither Voyageur Mutual Funds nor Voyageur
Insured Funds, nor any of their officers, directors, trustees, agents or
shareholders shall have any liability with respect to such representations or
warranties after the Closing. This provision shall not protect any officer,
director, trustee, agent or shareholder of Voyageur Mutual Funds or Voyageur
Insured Funds 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 would otherwise 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 and shall impose any terms or
conditions that are determined by action of the Board of Trustees of Voyageur
Mutual Funds or the Board of Trustees of Voyageur Insured Funds 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 Arizona Fund,
unless such further vote is required by applicable law or by mutual consent of
the parties.
12. Liability of Voyageur Insured Funds and Voyageur Mutual Funds
(a) Each party acknowledges and agrees that all obligations of
Voyageur Insured Funds under this Agreement are binding only with respect to
Arizona Insured Fund; that any liability of Voyageur Insured Funds under this
Agreement with respect to Arizona Insured Fund, or in connection with the
transactions contemplated herein with respect to Arizona Insured Fund, shall be
discharged only out of the assets of Arizona Insured Fund; that no other series
of Voyageur Insured Funds shall be liable with respect to this Agreement or in
connection with the transactions contemplated herein; and that neither Voyageur
Mutual Funds nor Arizona Fund shall seek satisfaction of any such obligation or
liability from the shareholders of Voyageur Insured Funds, the directors,
officers, employees or agents of Voyageur Insured Funds, or any of them.
(b) Each party acknowledges and agrees that all obligations of
Voyageur Mutual Funds under this Agreement are binding only with respect to
Arizona Fund; that any liability of Voyageur Mutual Funds under this Agreement
with respect to Arizona Fund, or in connection with the transactions
contemplated herein with respect to Arizona Fund, shall be discharged only out
of the assets of Arizona Fund; that no other series of Voyageur Mutual Funds
shall be liable with respect to this Agreement or in connection with the
transactions contemplated herein; and that neither Voyageur Insured Funds nor
Arizona Insured Fund shall seek satisfaction of any such obligation or liability
from the shareholders of Voyageur Mutual Funds, the trustees, officers,
employees or agents of Voyageur Mutual Funds, or any of them.
13. Final Tax Returns and Forms 1099 of Arizona Fund
(a) After the Closing, Voyageur Mutual Funds shall or shall cause its
agents to prepare any federal, state or local Tax returns, including any Forms
1099, required to be filed by Voyageur Mutual Funds with respect to Arizona
Fund's final taxable year ending with its complete liquidation and for any prior
periods or taxable years and shall further cause such Tax returns and Forms 1099
to be duly filed with the appropriate taxing authorities.
(b) Notwithstanding the provisions of Section 1 hereof, any expenses
incurred by Voyageur Mutual Funds or Arizona Fund (other than for payment of
Taxes) in connection with the preparation and filing of said Tax returns and
Forms 1099 after the Closing, shall be borne by Arizona Fund to the extent such
expenses have been or should have been accrued by Arizona Fund in the ordinary
course without regard to the Plan of Reorganization contemplated by this
Agreement; any excess expenses shall be borne by Delaware Management Company, a
series of Delaware Management Business Trust, at the time such Tax returns and
Forms 1099 are prepared.
14. Cooperation and Exchange of Information
Voyageur Insured Funds and Voyageur Mutual Funds will provide each
other and their respective representatives with such cooperation and information
as either of them reasonably may request of the other in filing any Tax returns,
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. Each party or their respective agents will
retain for a period of six (6) years following the Closing all returns,
schedules and work papers and all material records or other documents relating
to Tax matters of Arizona Fund and Arizona Insured Fund for its taxable period
first ending after the Closing and for all prior taxable periods.
15. Entire Agreement and Amendments
This Agreement embodies the entire Agreement between the parties and
there are no agreements, understandings, restrictions, or warranties between the
parties other than those set forth herein or herein provided for. This Agreement
may be amended only by mutual consent of the parties in writing. Neither this
Agreement nor any interest herein may be assigned without the prior written
consent of the other party.
16. Counterparts
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts together
shall constitute but one instrument.
17. Notices
Any notice, report, or demand required or permitted by any provision
of this Agreement shall be in writing and shall be deemed to have been given if
delivered or mailed, first class postage prepaid, addressed to Voyageur Mutual
Funds or Voyageur Insured Funds at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000,
Attention: Secretary.
18. Governing Law
This Agreement shall be governed by and carried out in accordance with
the laws of the State of Delaware.
19. Effect of Facsimile Signature
A facsimile signature of an authorized officer of a party hereto on
this Agreement and/or any transfer document shall have the same effect as if
executed in the original by such officer.
IN WITNESS WHEREOF, Voyageur Mutual Funds and Voyageur Insured Funds
have each caused this Agreement and Plan of Reorganization to be executed on its
behalf by its duly authorized officers, all as of the day and year first-above
written.
Voyageur Mutual Funds, on behalf of the
Delaware Tax-Free Arizona Fund
/s/Xxxxxxx X. Xxxxxx
By: Xxxxxxx X. Xxxxxx
Title: Senior Vice President/
Chief Financial Officer
Voyageur Insured Funds, on behalf of the
Delaware Tax-Free Arizona Insured Fund
/s/Xxxxxxx X. Xxxxxx
By: Xxxxxxx X. Xxxxxx
Title: Senior Vice President/
Chief Financial Officer
