Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of June 30, 2004 (the
"AGREEMENT"), by and among optionsXpress, Inc., a Delaware corporation
("OPTIONSXPRESS" or, with regard to the period upon and after the Effective Time
(as hereinafter defined), the "SURVIVING CORPORATION"), optionsXpress Holdings,
Inc., a Delaware corporation ("HOLDCO"), which is a direct wholly-owned
subsidiary of optionsXpress, and optionsXpress MergerCo, Inc., a Delaware
corporation ("MERGERCO"). which is a direct wholly-owned subsidiary of Holdco
and an indirect wholly-owned subsidiary of optionsXpress (optionsXpress and
MergerCo, collectively, the "CONSTITUENT CORPORATIONS" and each a "CONSTITUENT
CORPORATION").
W I T N E S S E T H
WHEREAS, optionsXpress is a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "DGCL") and is
authorized to issue a total of 35,000,000 shares, consisting of: (i) 25,000,000
shares of common stock, par value $.0001 per share ("OPTIONSXPRESS COMMON
STOCK"); and (ii) 10,000,000 shares of preferred stock, par value $.0001 per
share ("OPTIONSXPRESS PREFERRED STOCK"). As of the close of business on April
30, 2004, there were (i) 7,390,582 shares of optionsXpress Common Stock issued
and outstanding, (ii) 372,686 shares of optionsXpress Common Stock reserved for
issuance upon exercise of stock options of optionsXpress outstanding or which
may be granted pursuant to optionsXpress's stock option plan; and (iii)
2,426,143 shares of optionsXpress Preferred Stock issued and outstanding;
WHEREAS, MergerCo is a corporation organized and existing under the
DGCL and is authorized to issue a total of 1,000 shares, in a single class of
common stock, $.0001 par value per share ("MERGERCO COMMON STOCK"), of which,
as of the date hereof, 1,000 shares are issued and outstanding;
WHEREAS, as of the date hereof, Holdco holds of record all of the
outstanding shares of MergerCo Common Stock, and no shares of MergerCo Common
Stock are issued but not outstanding;
WHEREAS, Holdco is a corporation organized and existing under the DGCL
and is authorized to issue a total of 35,000,000 shares, consisting of (i)
25,000,000 shares of common stock, par value $.0001 per share ("HOLDCO COMMON
STOCK"), of which a total of 1,000 shares are issued and outstanding; and (ii)
10,000,000 shares of preferred stock, par value $.0001 per share ("HOLDCO
PREFERRED STOCK"), none of which is issued and outstanding;
WHEREAS, as of the date hereof, optionsXpress holds of record all of
the outstanding shares of Holdco Common Stock, and no shares of Holdco Common
Stock or Holdco Preferred Stock are issued but not outstanding;
WHEREAS, the designations, rights, powers and preferences, and the
qualifications, limitations and restrictions thereof, of the Holdco Common Stock
and the Holdco Preferred Stock are the same as those of the optionsXpress Common
Stock and optionsXpress Preferred Stock, respectively;
WHEREAS, the Certificate of Incorporation and Bylaws of Holdco
immediately after the Effective Time will contain provisions identical to the
Restated Certificate of Incorporation and Bylaws of optionsXpress immediately
prior to the Effective Time (other than with respect to matters excepted by
Section 251(g) of the DGCL);
WHEREAS, the directors of optionsXpress immediately prior to the
Effective Time will be the directors of Holdco as of the Effective Time;
WHEREAS, Holdco and MergerCo are newly formed corporations organized
for the purpose of participating in the transactions contemplated hereby;
WHEREAS, the respective Boards of Directors of optionsXpress, MergerCo
and Holdco have determined that it is advisable and in their respective best
interests and in the best interests of their respective stockholders that
MergerCo be merged with and into optionsXpress, with optionsXpress continuing as
the Surviving Corporation, in accordance with the terms and conditions of this
Agreement (the "MERGER"), and accordingly, the Boards of Directors of each of
optionsXpress, MergerCo and Holdco have approved and authorized this Agreement
and the transactions contemplated hereby, including the Merger; and
WHEREAS, it is contemplated that the Merger will be effected in
accordance with Section 251(g) of the DGCL, and that the Merger and the exchange
of shares of capital stock of optionsXpress for shares of capital stock of
Holdco shall be a transaction described in Section 35l(a) or Section 368(a) of
the Internal Revenue Code of 1986, as amended, and the rules and regulations
promulgated thereunder (the "CODE"), and that no gain or loss will be recognized
for United States federal income tax purposes by the stockholders of
optionsXpress as a result of the Merger;
NOW, THEREFORE, in consideration of the premises, the mutual
agreements, promises, covenants, representations, warranties, acknowledgments
and other terms, conditions, and provisions set forth herein, and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1 THE MERGER; FILING AND EFFECTIVE TIME. Subject to and in
accordance with the terms and conditions of this Agreement and the DGCL, this
Agreement and the certificates of the secretaries of optionsXpress and MergerCo
attached hereto as EXHIBITS A and B, duly executed, shall be filed with the
Secretary of State of the State of Delaware (the "DELAWARE SECRETARY OF STATE")
by optionsXpress at or as soon as practicable after the Closing (as defined
below). The Merger shall become effective at 11:59 p.m. eastern daylight time on
the date this Agreement is so filed with the Delaware Secretary of State (the
"EFFECTIVE TIME").
1.2 CLOSING. Subject to and in accordance with the terms and
conditions of this Agreement, the closing of the Merger (the "CLOSING") shall
take place as soon as practicable after satisfaction of the latest to occur of
the conditions set forth in ARTICLE IV hereof (the "CLOSING DATE"), at the
offices of Xxxxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000, unless another date or place is agreed to in writing by the parties
hereto.
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1.3 EFFECTS OF THE MERGER. The Merger shall have the effect set forth
in Section 259 of the DGCL.
1.4 CERTIFICATE OF INCORPORATION OF THE SURVIVING CORPORATION. The
Restated Certificate of Incorporation of optionsXpress, as in effect immediately
prior to the Effective Time (the "OPTIONSXPRESS CHARTER"), shall be the
certificate of incorporation of the Surviving Corporation (the "SURVIVING
CORPORATION CHARTER"), except that the following amendments thereto are to be
effected by the Merger upon the Effective Time:
(a) The Surviving Corporation Charter shall be amended by deleting
Article 4 thereof in its entirety and inserting in lieu thereof the following:
"4. The total number of shares of stock which the Corporation
has authority to issue is 1,000 shares of Common Stock, par value
$.0001 per share (the "COMMON STOCK")"; and
(b) The Surviving Corporation Charter shall be amended by adding and
inserting, immediately following Article 11 thereof, a new Article 12 thereof,
to read in its entirety as follows:
"TWELFTH. Any act or transaction by or involving the Corporation,
other than the election or removal of directors of the Corporation,
that requires for its adoption under the General Corporation Law of
the State of Delaware or this Restated Certificate of Incorporation
the approval of stockholders of the Corporation shall, pursuant to and
in accordance with subsection (g) of Section 251 of the General
Corporation Law of the State of Delaware, require, in addition, the
approval of the stockholders of optionsXpress Holdings, Inc., a
Delaware corporation, or any successor thereto by merger, by the same
vote that is required by the General Corporation Law of the State of
Delaware and/or this Restated Certificate of Incorporation."
1.5 BYLAWS OF THE SURVIVING CORPORATION. The Bylaws of optionsXpress
as in effect immediately prior to the Effective Time (the "OPTIONSXPRESS
BYLAWS"), shall be and continue in full force and effect as the bylaws of the
Surviving Corporation upon and after the Effective Time, unless and until duly
amended, altered, changed, repealed, and/or supplemented in accordance with the
DGCL (which power and right to amend, alter, change, repeal, and/or supplement,
at any time and from time to time after the Effective Time, are hereby expressly
reserved).
1.6 DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION.
(a) The respective members constituting the whole Board Directors of
optionsXpress (the "OPTIONSXPRESS BOARD") immediately prior to the Effective
Time shall be and continue as the respective members constituting the whole
Board of Directors of the Surviving Corporation upon and after the Effective
Time, until such members' respective successors are duly elected and qualified
or until such members' earlier death, resignation, disqualification or
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removal and unless and until the number of members of such Board of Directors
shall be duly increased or decreased in accordance with the DGCL (which power
and right to increase and decrease, at any time and from time to time after the
Effective Time, are hereby expressly reserved).
(b) Each person serving as an officer of optionsXpress immediately
prior to the Effective Time shall be and continue as an officer of the Surviving
Corporation, holding the same office or offices, upon and after the Effective
Time, until such person's successor is chosen and qualified or until such
person's earlier death, resignation, disqualification, or removal (which power
and right to remove are hereby expressly reserved).
1.7 FURTHER ASSURANCES. At any time and from time to time upon and
after the Effective Time, as and when required or deemed desirable by the
Surviving Corporation or its successors or assigns, there shall be executed,
acknowledged, certified, sealed, delivered, filed, and/or recorded, in the name
and on behalf of any and each Constituent Corporation, such deeds, contracts,
consents, certificates, notices, and other documents and instruments, and there
shall be done or taken or caused to be done or taken, in the name and on behalf
of any and each Constituent Corporation, such further and other things and
actions as shall be appropriate, necessary, or convenient to acknowledge, vest,
effect, perfect, confirm of record, or otherwise confirm the Surviving
Corporation's (or its successors' or assigns') right, title and interest in and
to, and possession of, all the property, interests, assets, rights, privileges,
immunities, powers, franchises, and authority of each Constituent Corporation
held immediately prior to the Effective Time, and otherwise to carry out and
effect the intent and purposes of this Agreement and the Merger. The officers
and directors of the Surviving Corporation (or its successors or assigns), and
each of them, upon and after the Effective Time, are and shall be fully
authorized, in the name and on behalf of each Constituent Corporation, to do and
take and cause to be done and taken any and all such things and actions, and to
execute, acknowledge, certify, seal, deliver, file, and/or record any and all
such deeds, contracts, consents, certificates, notices, and other documents and
instruments.
ARTICLE II
EFFECT OF THE MERGER ON THE
CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS
2.1 EFFECT ON CAPITAL STOCK. Upon and as of the Effective Time, by
virtue of the Merger and without any action on the part of the holders of the
respective shares:
(a) CONVERSION OF MERGERCO STOCK. Each share of MergerCo Common Stock
outstanding immediately prior to the Effective Time shall be converted into one
validly issued, fully paid and nonassessable share of common stock, par value
$.0001 per share (the "SURVIVING CORPORATION COMMON STOCK"), of the Surviving
Corporation, to be issued and deemed to have been issued by the Surviving
Corporation automatically and immediately upon and as of the Effective Time, the
capital of the Surviving Corporation in respect of each share of Surviving
Corporation Common Stock to be an amount equal to the par value thereof as
permitted under the DGCL, and such prior outstanding shares of MergerCo Common
Stock shall be canceled and cease to exist.
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(b) CONVERSION OF OPTIONSXPRESS STOCK.
(i) Each share or fraction thereof of optionsXpress Common
Stock outstanding immediately prior to the Effective Time shall
be converted into one, or an equal fraction of one, validly
issued, fully paid and nonassessable share of Holdco Common
Stock, and shall cease to represent any rights in any shares of
optionsXpress Common Stock, and such prior outstanding shares of
optionsXpress Common Stock shall be canceled and cease to exist.
(ii) Each share or fraction thereof of optionsXpress
Preferred Stock outstanding immediately prior to the Effective
Time shall be converted into one, or an equal fraction of one,
validly issued, fully paid and nonassessable share of Holdco
Preferred Stock, and shall cease to represent any rights in any
shares of optionsXpress Preferred Stock, and such prior
outstanding shares of optionsXpress Preferred Stock shall be
canceled and cease to exist.
2.2 STOCK CERTIFICATES. Upon and as of the Effective Time, by
virtue of the Merger and without any action on the part of either of the
Constituent Corporations or Holdco, the holders of the respective shares, or any
other person:
(a) HOLDCO. Each holder of a certificate formerly representing
shares of optionsXpress Common Stock shall be required to surrender such
certificate to optionsXpress, along with a properly completed transmittal
letter, in order to receive a certificate or certificates of Holdco representing
the number of shares of Holdco common stock into which the shares of
optionsXpress Common Stock previously represented by such optionsXpress
certificate have been converted pursuant to this Agreement. A letter of
transmittal will be mailed by optionsXpress to each former stockholder of
optionsXpress after the Effective Time. Until surrendered and exchanged in
accordance with this SECTION 2.2 or in the ordinary course, each certificate
representing optionsXpress Common Stock and optionsXpress Preferred Stock shall
be deemed and treated for all corporate purposes at any time after the Effective
Time to evidence the ownership of the number of shares of Holdco into which such
shares of optionsXpress were converted pursuant to SECTION 2.1(b) hereof.
(b) MERGERCO. Holdco, as the holder of the certificate (the
"MERGERCO COMMON STOCK CERTIFICATE") that immediately prior to the Effective
Time evidenced the outstanding shares of MergerCo Common Stock, may, at Holdco's
option, surrender the same to the Surviving Corporation for cancellation, and
Holdco shall be entitled to receive from the Surviving Corporation in exchange
therefor a certificate representing and evidencing the shares of Surviving
Corporation Common Stock into which Holdco's outstanding shares of MergerCo
Common Stock shall have been converted; until surrendered, the MergerCo Common
Stock Certificate shall represent and evidence the shares of Surviving
Corporation Common Stock into which the outstanding share of the MergerCo Common
Stock theretofore represented and evidenced thereby shall have been converted
pursuant to SECTION 2.1(a) hereof.
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ARTICLE III
ADDITIONAL AGREEMENTS
3.1 NO OPTIONSXPRESS STOCKHOLDER MEETING; MERGERCO STOCKHOLDER
WRITTEN CONSENT. The parties understand and acknowledge that it is contemplated
that the Merger will be effected in accordance with Section 251(g) of the DGCL
and that no vote of optionsXpress's stockholders adopting, approving or
authorizing this Agreement and the transactions contemplated hereby, including
the Merger, will be required under the DGCL. Holdco, in its capacity as the sole
stockholder of MergerCo, as promptly as practicable on or after the date hereof,
shall execute and deliver to MergerCo a written consent in lieu of a stockholder
meeting adopting, approving and authorizing this Agreement and the transactions
contemplated hereby, including the Merger, in accordance with Section 228 of the
DGCL.
3.2 COMPLIANCE WITH SECTION 251(g) OF THE DGCL. Holdco shall take any
and all actions required so that the requirements of Section 251(g) of the DGCL
are fully satisfied in connection with the Merger.
3.3 EMPLOYEE AND DIRECTOR OPTIONSXPRESS STOCK OPTIONS. Upon and as of
the Effective Time, to the fullest extent permitted by applicable law, Holdco
shall assume all of optionsXpress's obligations, and optionsXpress shall have no
further obligations, with respect to any then-outstanding right or option (each,
an "OPTIONSXPRESS OPTION") to acquire shares of optionsXpress Common Stock
issued under any employee or non-employee director stock purchase or option
plan, agreement or similar arrangement of optionsXpress and the due exercise of
rights under any such optionsXpress Option shall entitle the holder thereof to
acquire, upon the same terms and conditions that were applicable under the
corresponding optionsXpress Option, a number of shares of Holdco Common Stock
identical to the class and number of shares of optionsXpress Common Stock that
were subject to such corresponding optionsXpress option (a "HOLDCO OPTION").
Holdco and optionsXpress agree to take all corporate and other action as shall
be necessary to effectuate the foregoing, and optionsXpress shall use its best
efforts to obtain, if required, prior to the Closing Date, such consent of each
holder of an optionsXpress Option as shall be necessary to effectuate the
foregoing. Holdco shall take all corporate and other action necessary to reserve
and make available for issuance upon the due exercise of rights under the Holdco
Options appropriate notice of such holders' rights thereunder. Immediately prior
to the Effective Time, Holdco shall adopt and assume the optionsXpress, Inc.
2001 Equity Incentive Plan (the "OPTION PLAN"), and, following the Effective
Time, Holdco may make awards under the Option Plan as provided therein.
Immediately prior to the Effective Time, optionsXpress, in its capacity as sole
shareholder of Holdco, shall approve Holdco's adoption of the Option Plan.
3.4 OUTSTANDING HOLDCO COMMON STOCK. Upon and as of the Effective
Time, optionsXpress shall surrender to Holdco for no consideration the
certificate representing the outstanding shares of Holdco Common Stock, and such
outstanding shares of Holdco Common Stock shall be retired as permitted under
the DGCL and resume the status of authorized and unissued shares of Holdco
Common Stock.
3.5 OTHER AGREEMENTS. At the Effective Time, Holdco shall assume any
obligation of optionsXpress to deliver or make available shares of optionsXpress
Common Stock
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or optionsXpress Preferred Stock under any instrument, agreement or employee
benefit plan not referred to in this Section 3 to which optionsXpress or any of
its subsidiaries is a party. Any reference to optionsXpress Common Stock or
optionsXpress Preferred Stock under any such instrument, agreement or employee
benefit plan shall be deemed to be a reference to Holdco Common Stock or Holdco
Preferred Stock, as the case may be, and one share of Holdco Common Stock or
Holdco Preferred Stock shall be issuable in lieu of each share of optionsXpress
Common Stock or optionsXpress Preferred Stock, as the case may be, required to
be issued by any such instrument, agreement or employee benefit plan, subject
to adjustment as provided in any such instrument, agreement or employee benefit
plan.
3.6 FILINGS. At the Effective Time, the Surviving Corporation shall
cause a certified copy of this Agreement to be executed and filed with the
Delaware Secretary of State. At the Effective Time, to the extent necessary to
effectuate the amendments to the Surviving Corporation Charter contemplated by
this Agreement, the Surviving Corporation shall cause to be filed with the
Delaware Secretary of State such certificates and documents required to give
effect thereto.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER. The
respective obligations of each party under this Agreement shall be subject to
the satisfaction at or prior to the Closing of the following conditions:
(a) STOCKHOLDER APPROVAL. This Agreement shall have been approved by
the written consent of the holder of the outstanding MergerCo Shares.
(b) ILLEGALITY. No judgment, order, decree, statute, law, ordinance,
rule or regulation, entered, enacted, promulgated, enforced or issued by any
foreign, United States, state or local governmental entity or municipality or
subdivision thereof or court, tribunal, commission, board, bureau, agency or
legislative, executive, governmental or regulatory or self-regulatory authority
or agency (a "GOVERNMENTAL ENTITY") of competent jurisdiction or other legal
restraint or prohibition shall be in effect which prohibits or makes illegal the
consummation of the Merger or the other transactions contemplated hereby.
(c) STATUTES. No statute, rule or regulation shall have been enacted
by any Governmental Entity that would make the consummation of the Merger
illegal.
4.2 CONDITIONS TO THE OBLIGATIONS OF OPTIONSXPRESS AND MERGERCO TO
EFFECT THE MERGER. The obligations of optionsXpress and MergerCo to effect the
Merger shall be subject to the satisfaction of the condition that immediately
prior to the Effective Time, Holdco shall have fully performed its obligations
under ARTICLE III hereof.
ARTICLE V
TERMINATION AND AMENDMENT
5.1 AMENDMENT. At any time prior to the Effective Time, this
Agreement may be supplemented, amended or modified by the mutual consent of the
Board of Directors of the
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parties hereto; provided, however, that any amendment effected subsequent to
stockholder approval shall be subject to the restrictions contained in the DGCL.
No amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by all of the parties hereto.
5.2 TERMINATION. This Agreement may be terminated and the Merger
contemplated hereby abandoned at any time prior to the Effective Time by action
of either the Board of Directors of optionsXpress, the Board of Directors of
Holdco or the Board of Directors of MergerCo, if such Board of Directors shall
determine that for any reason the completion of the transactions provided for
herein would be inadvisable or not in the best interest of such corporation or
its stockholders. In the event of such termination and abandonment, this
Agreement shall become void and none of optionsXpress, Holdco or MergerCo nor
their respective stockholders, directors, officers or agents shall have any
liability with respect to such termination and abandonment.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 ENTIRE AGREEMENT. This Agreement, including the Exhibits attached
hereto, constitutes the entire agreement among the parties regarding the subject
matter hereof, and supersedes all prior agreements and undertakings, both
written and oral, among the parties or of any of them regarding such subject
matter.
6.2 GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware.
6.3 HEADINGS. The headings set forth herein are for convenience only
and shall not be used in interpreting the text of the section in which they
appear.
6.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts (including by means of telecopied signature page) which together
shall constitute a single agreement.
6.5 CERTIFICATES OF SECRETARIES. The certificates of the secretaries
of optionsXpress and MergerCo to be attached hereto are hereby incorporated by
reference and shall be deemed on and part of this Agreement.
* * * *
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IN WITNESS WHEREOF, optionsXpress, Holdco and MergerCo, pursuant to
the approval and authority duly given by resolutions adopted by their respective
Boards of Directors, have caused this Agreement to be executed as of the date
first above written by their respective officers thereunto duly authorized.
OPTIONSXPRESS, INC.
By: /s/ Xxxxx Xxxx
---------------------------
Name: Xxxxx Xxxx
Title: PRESIDENT
OPTIONSXPRESS HOLDINGS, INC.
By: /s/ Xxxxx Xxxx
---------------------------
Name: Xxxxx Xxxx
Title: PRESIDENT
OPTIONSXPRESS MERGERCO, INC.
By: /s/ Xxxxx Xxxx
---------------------------
Name: Xxxxx Xxxx
Title: PRESIDENT
CERTIFICATE OF THE SECRETARY OF OPTIONSXPRESS, INC.
The undersigned, Secretary of optionsXpress, Inc., a corporation
organized and existing under the laws of the State of Delaware (the
"CORPORATION"), hereby certifies that the Agreement and Plan of Merger (the
"AGREEMENT") to which this Certificate is attached has been executed on behalf
of the Corporation by the President of the Corporation. The Agreement has been
adopted by the Board of Directors of the Corporation pursuant to Section 251(g)
of the Delaware General Corporation Law and the conditions specified in the
first sentence of such subsection have been satisfied.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of this 30th day of June, 2004.
/s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
CERTIFICATE OF THE SECRETARY OF OPTIONSXPRESS MERGERCO, INC.
The undersigned, Secretary of optionsXpress MergerCo, Inc., a Delaware
corporation (the "CORPORATION"), hereby certifies that the Agreement and Plan of
Merger (the "AGREEMENT") to which this Certificate is attached has been executed
on behalf of the Corporation by the President of the Corporation. The Agreement
was duly adopted by the Board of Directors of the Corporation in accordance with
Section 251 of the Delaware Corporation Law and by the written consent of the
sole stockholder of the Corporation in accordance with Section 228 of the
Delaware General Corporation Law.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of this 30th day of June, 2004.
/s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
Exhibit C
CERTIFICATE OF THE SECRETARY OF OPTIONSXPRESS HOLDINGS, INC.
The undersigned, Secretary of optionsXpress Holdings, Inc., a Delaware
corporation (the "CORPORATION"), hereby certifies that the Agreement and Plan of
Merger (the "AGREEMENT";) to which this Certificate is attached has been
executed on behalf of the Corporation by the President of the Corporation. The
Agreement was duly adopted by the Board of Directors of the Corporation in
accordance with Section 251 of the Delaware Corporation Law and by the written
consent of the sole stockholder of the Corporation in accordance with Section
228 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of this 30th day of June, 2004.
/s/ XXXXXX X. XXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
