Exhibit No. EX-99.4(a)
AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION ("Agreement"), made as of this
19th day of February 2004, by and between Delaware Group Voyageur Mutual Funds
III (the "Acquiring Trust"), a statutory trust created under the laws of the
State of Delaware, with its principal place of business at Xxx Xxxxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, on behalf of its series, Delaware Select
Growth Fund ("Select Growth Fund"), and Delaware Group Equity Funds III (the
"Trust"), a statutory trust created under the laws of the State of Delaware,
with its principal place of business also at Xxx Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000, on behalf of its series Delaware Technology and Innovation
Fund ("Acquired Fund") .
PLAN OF REORGANIZATION
The reorganization (hereinafter referred to as the "Plan of
Reorganization") will consist of: (i) the acquisition by the Acquiring Trust on
behalf of the Select Growth Fund of substantially all of the property, assets
and goodwill of the Acquired Fund in exchange solely for (a) shares of
beneficial interest, no par value, of the Select Growth Fund - Class A ("Select
Growth Fund Class A Shares"), (b) shares of beneficial interest, no par value,
of the Select Growth Fund - Class B ("Select Growth Fund Class B Shares"), (c)
shares of beneficial interest, no par value, of the Select Growth Fund - Class C
("Select Growth Fund Class C Shares"), (d) shares of beneficial interest, no par
value, of the Select Growth Fund - Class R ("Select Growth Fund Class R
Shares"), (e) shares of beneficial interest, no par value of the Select Growth
Fund - Institutional Class ("Select Growth Fund Institutional Class Shares"),
and (f) the assumption by the Acquiring Trust on behalf of the Select Growth
Fund of all of the liabilities of the Acquired Fund; (ii) the distribution of
(a) Select Growth Fund Class A shares to the shareholders of Acquired Fund -
Class A Shares ("Acquired Fund Class A Shares"), (b) Select Growth Fund Class B
Shares to the shareholders of Acquired Fund - Class B Shares ("Acquired Fund
Class B Shares"), (c) Select Growth Fund Class C Shares to the shareholders of
Acquired Fund - Class C Shares ("Acquired Fund Class C Shares"), (d) Select
Growth Fund Class R Shares to the shareholders of Acquired Fund - Class R Shares
("Acquired Fund Class R Shares"), and (e) Select Growth Fund Institutional Class
Shares to the shareholders of Acquired Fund - Institutional Class Shares
("Acquired Fund Institutional Class Shares"), according to their respective
interests in complete liquidation of the Acquired Fund; and (iii) the
dissolution of the Acquired 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 the Acquired Fund
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(a) Subject to the terms and conditions of this Agreement, and in reliance
on the representations and warranties of the Acquiring Trust herein contained,
and in consideration of the delivery by the Acquiring Trust of the number of its
shares of beneficial interest of the Select Growth Fund hereinafter provided,
the Trust, on behalf of the Acquired Fund, agrees that it will sell, convey,
transfer and deliver to the Acquiring Trust, on behalf of the Select Growth
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 the Acquired 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 the Acquired 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 the Acquired 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 the Acquired Fund as liability reserves, (2) to discharge all of the
Acquired 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 the Trust shall reasonably deem to exist against the Acquired 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 the Acquired
Fund (hereinafter "Net Assets"). The Trust, on behalf of the Acquired 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. The Trust agrees to use commercially reasonable efforts to
identify all of the Acquired 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 the Trust on behalf of the Acquired
Fund herein contained, and in consideration of such sale, conveyance, transfer,
and delivery, the Acquiring Trust agrees at the Closing to assume the
Liabilities, on behalf of the Select Growth Fund, and to deliver to the Trust on
behalf of the Acquired Fund: (i) the number of Select Growth Fund Class A
Shares, determined by dividing the net asset value per share of Acquired Fund
Class A Shares as of the Close of Business on the Valuation Date by the net
asset value per share of Select Growth Fund Class A Shares as of Close of
Business on the Valuation Date, and multiplying the result by the number of
outstanding shares of the Acquired Fund Class A Shares as of Close of Business
on the Valuation Date; (ii) the number of Select Growth Fund Class B Shares,
determined by dividing the net asset value per share of Acquired Fund Class B
Shares as of Close of Business on the Valuation Date by the net asset value per
share of Select Growth Fund Class B Shares as of Close of Business on the
Valuation Date, and multiplying the result by the number of outstanding shares
of Acquired Fund Class B Shares as of Close of Business on the Valuation Date;
(iii) the number of Select Growth Fund Class C Shares, determined by dividing
the net asset value per share of Acquired Fund Class C Shares as of Close of
Business on the Valuation Date by the net asset value per share of Select Growth
Fund Class C Shares as of Close of Business on the Valuation Date, and
multiplying the result by the number of outstanding shares of Acquired Fund
Class C Shares as of Close of Business on the Valuation Date; (iv) the number of
Select Growth Fund Class R Shares, determined by dividing the net asset value
per share of Acquired Fund Class R Shares as of Close of Business on the
Valuation Date by the net asset value per share of Select Growth Fund Class R
Shares as of Close of Business on the Valuation Date, and multiplying the result
by the number of outstanding shares of Acquired Fund Class R Shares as of Close
of Business on the Valuation Date; and (v) the number of Select Growth Fund
Institutional Class Shares, determined by dividing the net asset value per share
of Acquired Fund Institutional Class Shares as of Close of Business on the
Valuation Date by the net asset value per share of Select Growth Fund
Institutional Class Shares as of Close of Business on the Valuation Date, and
multiplying the result by the number of outstanding shares of Acquired 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, the Trust shall dissolve
the Acquired Fund and distribute pro rata to the Acquired Fund's shareholders of
record as of the Close of Business on the Valuation Date, the shares of
beneficial interest of the Select Growth Fund received by the Acquired Fund
pursuant to this Section 1. Such dissolution and distribution shall be
accomplished by the establishment of accounts on the share records of the Select
Growth Fund of the type and in the amounts due such shareholders pursuant to
this Section 1 based on their respective holdings of shares of the Acquired Fund
as of the Close of Business on the Valuation Date. Fractional shares of
beneficial interest of the Select Growth Fund shall be carried to the third
decimal place. Unless requested, no certificates representing shares of
beneficial interest of the Select Growth Fund will be issued to shareholders of
the Acquired Fund Shares irrespective of whether such shareholders hold their
shares in certificated form.
(d) At the Closing, each shareholder of record of the Trust shall be
entitled to surrender the same to the transfer agent for the Acquiring Trust and
request in exchange therefor a certificate or certificates representing the
number of whole shares of beneficial interest of the class of Select Growth Fund
shares into which the corresponding shares of beneficial interest of the
Acquired Fund theretofore represented by the certificate or certificates so
surrendered shall have been converted. Certificates for fractional shares of
beneficial interest of the Acquiring Trust shall not be issued, but such
fractional shares shall continue to be carried by the Acquiring Trust in book
entry form for the account of such shareholder. Until so surrendered, each
outstanding certificate, which, prior to Closing, represented shares of
beneficial interest of the Acquired Fund, shall be deemed for all Select Growth
Fund purposes to evidence ownership of the number of shares of beneficial
interest of the Select Growth Fund into which the shares of beneficial interest
of the Acquired Fund (which prior to Closing were represented thereby) have been
converted.
(e) At the Closing, each shareholder of record of the Acquired 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 the Acquired Fund that such person had on such
Distribution Record Date.
2. Valuation
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(a) The value of the Acquired Fund's Net Assets to be acquired by the
Select Growth Fund hereunder shall be computed as of Close of Business on the
Valuation Date using the valuation procedures set forth in the Acquired Fund's
currently effective prospectus and statement of additional information.
(b) The net asset value of a share of beneficial interest of the Select
Growth Fund Class A Shares, Select Growth Fund Class B Shares, Select Growth
Fund Class C Shares, Select Growth Fund Class R Shares and Select Growth 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 the Select Growth Fund's currently effective prospectus and statement
of additional information.
(c) The net asset value of a share of beneficial interest of the Acquired
Fund Class A Shares, Acquired Fund Class B Shares, Acquired Fund Class C Shares,
Acquired Fund Class R Shares and Acquired 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 the Acquired
Fund's currently effective prospectus and statement of additional information.
3. Closing and Valuation Date
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The Valuation Date shall be March 26, 2004, or such later date as the
parties may mutually agree. The Closing shall take place at the principal office
of the Acquiring Trust, Xxx Xxxxxxxx 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 the
Acquiring Trust or Trust, accurate appraisal of the value of the net assets of
the Acquired Fund or the Select Growth 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 the
Acquired Fund and the Select Growth Fund is practicable in the judgment of the
Acquiring Trust and Trust. The Trust shall have provided for delivery as of the
Closing of those Net Assets of the Acquired Fund to be transferred to the Select
Growth Fund's Custodian, Mellon Bank, N.A., Xxx Xxxxxx Xxxxxx, Xxxxxxxxxx, XX
00000. Also, the Trust shall deliver at the Closing a list (which may be in
electronic form) of names and addresses of the shareholders of record of its
Acquired 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. The Acquiring Trust shall issue and deliver
a certificate or certificates evidencing the shares of the Select Growth Fund to
be delivered at the Closing to said transfer agent registered in such manner as
the Trust may request, or provide evidence satisfactory to the Trust in such
manner as the Trust may request that such shares of beneficial interest of the
Select Growth Fund have been registered in an open account on the books of the
Select Growth Fund.
4. Representations and Warranties by the Trust
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The Trust represents and warrants to the Acquiring Trust that:
(a) The Trust 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. The Trust, of which the Acquired 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) The Trust is authorized to issue an unlimited number of shares of
beneficial interest of the Acquired Fund, with no par value. Each outstanding
share of the Acquired 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 the Acquired Fund Annual Report
to Shareholders for the fiscal year ended December 31, 2003, audited by Xxxxxx &
Xxxxx, LLP, copies of which have been delivered to the Acquiring Trust, and any
unaudited financial statements, copies of which may be furnished to the
Acquiring Trust, fairly present the financial position of the Acquired 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 the Acquired Fund made available to the
Acquiring Trust 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
the Acquired Fund.
(e) The statement of assets and liabilities to be furnished by the Trust as
of the Close of Business on the Valuation Date for the purpose of determining
the number of shares of beneficial interest of the Select Growth Fund to be
issued pursuant to Section 1 hereof will accurately reflect the Net Assets of
the Acquired 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) The Trust has the necessary power and authority to conduct its business
and the business of the Acquired Fund as such businesses are now being
conducted.
(h) The Trust 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) The Trust has full power and authority to enter into and perform its
obligations under this Agreement, subject to approval of the Plan of
Reorganization by the Acquired 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 the Trust nor the Acquired 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) The Trust does not have any unamortized or unpaid organizational fees
or expenses.
(l) The Trust has elected to treat the Acquired Fund as a regulated
investment company ("RIC") for federal income tax purposes under Part I of
Subchapter M of the Code, the Acquired 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 the Acquiring Trust
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The Acquiring Trust represents and warrants to the Trust that:
(a) The Acquiring Trust 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. The Acquiring Trust, of which the Select
Growth 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) The Acquiring Trust is authorized to issue an unlimited number of
shares of beneficial interest, without par value, of the Select Growth Fund.
Each outstanding share of the Select Growth 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 the Select Growth 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 the
Select Growth 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 the Acquired 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 the Select Growth Fund to be
furnished by the Acquiring Trust as of the Close of Business on the Valuation
Date for the purpose of determining the number of shares of beneficial interest
of the Select Growth Fund to be issued pursuant to Section 1 hereof will
accurately reflect the net assets of the Select Growth 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, the Acquiring Trust 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) The Acquiring Trust has the necessary power and authority to conduct
its business and the business of the Select Growth Fund as such businesses are
now being conducted.
(g) The Acquiring Trust 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) The Acquiring Trust 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 the Acquiring Trust nor the Select Growth 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 the Select Growth Fund made available to the
Trust 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 the
Select Growth Fund.
(k) The Acquiring Trust has elected to treat the Select Growth Fund as a
regulated investment company ("RIC") for federal income tax purposes under Part
I of Subchapter M of the Code, the Select Growth 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 the Trust and the Acquiring Trust
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The Trust and the Acquiring Trust 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 the Acquired Fund or the
Select Growth Fund, as appropriate, all Tax (as defined below) returns and
reports (including information returns), which are required to be filed by such
Acquired Fund or Select Growth 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 Acquired Fund or Select Growth Fund. On behalf of the Acquired
Fund or the Select Growth 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 the Acquired Fund or Select Growth 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 the Acquired Fund or Select
Growth 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 the Acquired Fund or Select Growth 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
the Acquired Fund or Select Growth Fund, as appropriate.
(d) All information provided to the Trust by the Acquiring Trust, and by
the Trust to the Acquiring Trust, for inclusion in, or transmittal with, the
Combined Proxy Statement and Prospectus with respect to this Agreement pursuant
to which approval of the Acquired Fund's 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 the Trust with respect to the approval of the
Acquired 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 the Trust
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(a) The Trust covenants to operate business of the Acquired Fund as
presently conducted between the date hereof and the Closing.
(b) The Trust undertakes that the Acquired Fund will not acquire the shares
of beneficial interest of the Select Growth Fund for the purpose of making
distributions thereof other than to the Acquired Fund's shareholders.
(c) The Trust covenants that by the Closing, all of the Acquired 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) The Trust will at the Closing provide the Acquiring Trust with:
(1) A statement of the respective tax basis of all investments to be
transferred by the Acquired Fund to the Select Growth 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 the Acquired Fund with respect to each shareholder, for all of the
shareholders of record of the Acquired Fund's shares as of the Close of
Business on the Valuation Date, who are to become holders of the Select
Growth 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 the Trust shall call and the Trust shall hold,
a Special Meeting of the Acquired Fund's shareholders to consider and vote upon
this Agreement (the "Special Meeting") and the Trust shall take all other
actions reasonably necessary to obtain approval of the transactions contemplated
herein. The Trust 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) The Trust shall supply to the Acquiring Trust, 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 the Acquiring Trust
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(a) The Acquiring Trust covenants that the shares of beneficial interest of
the Select Growth Fund to be issued and delivered to the Acquired 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
the Select Growth Fund shall have any statutory or contractual preemptive right
of subscription or purchase in respect thereof.
(b) The Acquiring Trust covenants to operate the business of the Select
Growth Fund as presently conducted between the date hereof and the Closing.
(c) The Acquiring Trust covenants that by the Closing, all of the Select
Growth 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) The Acquiring Trust shall supply to the Trust, 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) The Acquiring Trust 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 the Select Growth 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 the
Acquired 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 the Trust and the Acquiring
Trust
----------------------------------------------------------------------
The obligations of the Trust and the Acquiring Trust 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 the Acquired Fund at an annual or special meeting or any
adjournment thereof.
(e) That the Acquired 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 the Acquired Fund or the Select
Growth Fund.
(g) That prior to or at the Closing, the Trust and the Acquiring Trust
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 the Trust and the Acquiring Trust in certificates delivered to SRSY:
(1) The acquisition by the Select Growth Fund of substantially all of
the assets and the assumption of the liabilities of the Acquired Fund in
exchange solely for the Select Growth Fund shares to be issued pursuant to
Section 1 hereof, followed by the distribution by the Acquired Fund to its
shareholders of the Select Growth Fund shares in complete liquidation of
the Acquired Fund, will qualify as a reorganization within the meaning of
Section 368(a)(1) of the Code, and the Select Growth Fund and the Acquired
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 the Acquired Fund upon the
transfer of substantially all of its assets to and the assumption of the
liabilities by the Acquired Fund in exchange solely for the voting shares
of the Select Growth 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 the Select Growth Fund upon
the receipt by it of substantially all of the assets and the assumption of
the liabilities of the Acquired Fund in exchange solely for the voting
shares of the Select Growth 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 the Acquired Fund upon the
distribution of the Select Growth Fund shares to the Acquired Fund
shareholders in accordance with Section 1 hereof in liquidation of the
Acquired Fund under Section 361(c)(1) of the Code.
(5) The basis of the assets of the Acquired Fund received by the
Select Growth Fund will be the same as the basis of such assets to the
Acquired Fund immediately prior to the exchange under Section 362(b) of the
Code;
(6) The holding period of the assets of the Acquired Fund received by
the Select Growth Fund will include the period during which such assets
were held by the Acquired Fund under Section 1223(2) of the Code;
(7) No gain or loss will be recognized by the shareholders of the
Acquired Fund upon the exchange of their shares in the Acquired Fund for
the voting shares (including fractional shares to which they may be
entitled) of the Select Growth Fund (to be issued in accordance with
Section 1 hereof) under Section 354(a) of the Code;
(8) The basis of the Select Growth Fund shares received by the
Acquired 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 the Acquired Fund exchanged therefor under Section
358(a)(1) of the Code;
(9) The holding period of the Select Growth Fund's shares received by
the Acquired Fund's shareholders in accordance with Section 1 hereof
(including fractional shares to which they may be entitled) will include
the holding period of the Acquired Fund's shares surrendered in exchange
therefor, provided that the Acquired Fund shares were held as a capital
asset on the date of the Reorganization under Section 1223(l) of the Code;
and
(10) The Select Growth 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 the Acquired 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 the Acquiring Trust shall have received an opinion in form and
substance reasonably satisfactory to it from SRSY, counsel to the Trust, 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) The Trust was created as a statutory 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) The Trust is authorized to issue an unlimited number of shares of
beneficial interest, without par value, of the Trust and of the Acquired
Fund. Assuming that the initial shares of beneficial interest of the
Acquired Fund were issued in accordance with the 1940 Act, and the
Agreement and Declaration of Trust and By-Laws of the Trust, and that all
other such outstanding shares of the Acquired Fund were sold, issued and
paid for in accordance with the terms of the Acquired 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) The Trust is an open-end, investment company of the management
type registered as such under the 1940 Act;
(4) Except as disclosed in the Acquired Fund's currently effective
prospectus, such counsel does not know of any material suit, action, or
legal or administrative proceeding pending or threatened against the Trust,
the unfavorable outcome of which would materially and adversely affect the
Trust or the Acquired 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 the Trust 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 the Trust 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 the Trust is a party or by which the Trust
is otherwise bound; and
(7) This Agreement has been validly authorized, executed and delivered
by the Trust and represents the legal, valid and binding obligation of the
Trust and is enforceable against the Trust 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 the Trust with regard to matters of fact and
certain certifications and written statements of governmental officials with
respect to the good standing of the Trust.
(i) That the Trust shall have received an opinion in form and substance
reasonably satisfactory to it from SRSY, counsel to the Acquiring Trust, 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) The Acquiring Trust was created as a statutory 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) The Acquiring Trust is authorized to issue an unlimited number of
shares of beneficial interest, without par value. Assuming that the initial
shares of beneficial interest of the Select Growth Fund were issued in
accordance with the 1940 Act and the Acquiring Trust's Agreement and
Declaration of Trust and By-Laws, and that all other such outstanding
shares of the Select Growth Fund were sold, issued and paid for in
accordance with the terms of the Select Growth 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) The Acquiring Trust is an open-end investment company of the
management type registered as such under the 1940 Act;
(4) Except as disclosed in the Select Growth Fund's currently
effective prospectus, such counsel does not know of any material suit,
action, or legal or administrative proceeding pending or threatened against
the Acquiring Trust, the unfavorable outcome of which would materially and
adversely affect the Acquiring Trust or the Select Growth Fund;
(5) The shares of beneficial interest of the Select Growth 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 the
Acquiring Trust or the Select Growth 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 the Acquiring Trust 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 the Acquiring Trust 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 the Acquiring Trust is a
party or by which the Acquiring Trust is otherwise bound; and
(8) This Agreement has been validly authorized, executed and delivered
by the Acquiring Trust and represents the legal, valid and binding
obligation of the Acquiring Trust and is enforceable against the Acquiring
Trust 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 the Acquiring Trust with regard to matters of
fact and certain certifications and written statements of governmental officials
with respect to the good standing of the Acquiring Trust.
(j) That the Acquiring Trust's Registration Statement with respect to the
shares of beneficial interest of the Select Growth Fund to be delivered to the
Acquired 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 the Select Growth Fund to be
delivered in accordance with Section 1 hereof shall be eligible for sale by the
Acquiring Trust with each state commission or agency with which such eligibility
is required in order to permit the shares lawfully to be delivered to each
Acquired Fund shareholder.
(l) That at the Closing, the Trust, on behalf of the Acquired Fund,
transfers to the Select Growth Fund aggregate Net Assets of the Acquired 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 the
Acquired 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 one-third by the Acquired
Fund, one-third by the Select Growth Fund, and one-third by Delaware Management
Company, a series of Delaware Management Business Trust and investment manager
of the Select Growth Fund and the Acquired Fund.
(b) Any other provision of this Agreement to the contrary notwithstanding,
any liability of the Trust under this Agreement with respect to any series of
the Trust, or in connection with the transactions contemplated herein with
respect to any series of the Trust, shall be discharged only out of the assets
of that series of the Trust, and no other series of the Trust shall be liable
with respect thereto.
(c) Any other provision of this Agreement to the contrary notwithstanding,
any liability of the Acquiring Trust under this Agreement with respect to any
series of the Acquiring Trust, or in connection with the transactions
contemplated herein with respect to any series of the Acquiring Trust, shall be
discharged only out of the assets of that series of the Acquiring Trust, and no
other series of the Acquiring Trust 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 the
Acquired Fund) prior to the Closing as follows:
(1) by mutual consent of the Trust and the Acquiring Trust;
(2) by the Acquiring Trust if any condition precedent to its
obligations set forth in Section 9 has not been fulfilled or waived by the
Acquiring Trust; or
(3) by the Trust if any condition precedent to its obligations set
forth in Section 9 has not been fulfilled or waived by the Trust.
(b) If the transactions contemplated by this Agreement have not been
consummated by December 31, 2004, this Agreement shall automatically terminate
on that date, unless a later date is agreed to by both the Trust and the
Acquiring Trust.
(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 the Trust or the
Acquiring Trust 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 the Trust or the Acquiring Trust,
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 the Trust nor the Acquiring Trust, 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 the Trust or the Acquiring Trust 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 the Trust or the Board
of Trustees of the Acquiring Trust 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 further vote is required
by applicable law or by mutual consent of the parties.
12. Liability of the Acquiring Trust and the Trust
----------------------------------------------
(a) Each party acknowledges and agrees that all obligations of the
Acquiring Trust under this Agreement are binding only with respect to the Select
Growth Fund; that any liability of the Acquiring Trust under this Agreement with
respect to the Select Growth Fund, or in connection with the transactions
contemplated herein with respect to Select Growth Fund, shall be discharged only
out of the assets of the Select Growth Fund; that no other series of the
Acquiring Trust shall be liable with respect to this Agreement or in connection
with the transactions contemplated herein; and that neither the Trust nor the
Acquired Fund shall seek satisfaction of any such obligation or liability from
the shareholders of the Acquiring Trust, the directors, officers, employees or
agents of the Acquiring Trust, or any of them.
(b) Each party acknowledges and agrees that all obligations of the Trust
under this Agreement are binding only with respect to the Acquired Fund; that
any liability of the Trust under this Agreement with respect to the Acquired
Fund, or in connection with the transactions contemplated herein with respect to
the Acquired Fund, shall be discharged only out of the assets of the Acquired
Fund; that no other series of the Trust shall be liable with respect to this
Agreement or in connection with the transactions contemplated herein; and that
neither the Acquiring Trust nor the Select Growth Fund shall seek satisfaction
of any such obligation or liability from the shareholders of the Trust, the
trustees, officers, employees or agents of the Trust, or any of them.
13. Final Tax Returns and Forms 1099 of the Acquired Fund
-----------------------------------------------------
(a) After the Closing, the Trust shall or shall cause its agents to prepare
any federal, state or local Tax returns, including any Forms 1099, required to
be filed by the Trust with respect to the Acquired 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 the Trust or the Acquired 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 the Acquired Fund to the extent such
expenses have been or should have been accrued by the Acquired 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
---------------------------------------
The Acquiring Trust and the Trust 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
the Acquired Fund and Select Growth 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 the Trust or the
Acquiring Trust at Xxx Xxxxxxxx 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, the Trust and the Acquiring Trust 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 Group Equity Funds III, on behalf of the
Delaware Technology and Innovation Fund
/s/Xxxxxx X. Xxxxxxxx
By: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President/Chief Financial Officer
Voyageur Mutual Funds III, on behalf of the Delaware
Select Growth Fund
/s/Xxxxxx X. Xxxxxxxx
By: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President/Chief Financial Officer
