Item 77Q1(g)
Agreement and Plan of Reorganization
THIS AGREEMENT AND PLAN OF REORGANIZATION dated as of March 20, 2008,
is by and among Excelsior Funds Trust, Excelsior Funds, Inc. and Excelsior
Tax-Exempt Funds, Inc. (each an "Acquired Company"), each on behalf of each
series thereof identified in Exhibit A hereto as an Acquired Fund (each an
"Acquired Fund"), Columbia Funds Series Trust I (the "Acquiring Trust"), on
behalf of each series thereof identified in Exhibit A hereto as the
corresponding Acquiring Fund (each an "Acquiring Fund"), and Columbia
Management Advisors, LLC ("Columbia").
This Agreement shall be treated as if each reorganization between an
Acquired Fund and its corresponding Acquiring Fund contemplated hereby had been
the subject of a separate agreement.
This Agreement is intended to be and is adopted as a plan of
reorganization and liquidation within the meaning of Section 361(a) and
Section 368(a) of the United States Internal Revenue Code of 1986, as
amended (the "Code"), and any successor provision. The reorganization will
consist of the transfer of all of the assets of each Acquired Fund
attributable to each class of its shares in exchange for shares of the
corresponding class of shares of the corresponding Acquiring Fund (the
"Acquisition Shares"), and the assumption by each Acquiring Fund of the
liabilities of the corresponding Acquired Fund and the distribution of the
Acquisition Shares to the relevant shareholders of such Acquired Fund in
liquidation of such Acquired Fund, all upon the terms and conditions set
forth in this Agreement.
In consideration of the premises and of the covenants and agreements
hereinafter set forth, the parties hereto covenant and agree as follows:
1. TRANSFER OF ASSETS OF EACH ACQUIRED FUND IN EXCHANGE FOR ASSUMPTION OF
LIABILITIES AND ACQUISITION SHARES AND LIQUIDATION OF SUCH ACQUIRED FUND.
1.1. Subject to the terms and conditions herein set forth and on the basis
of the representations and warranties contained herein,
(a) Each Acquired Fund will transfer and deliver to the corresponding
Acquiring Fund, and each Acquiring Fund will acquire all the assets of the
corresponding Acquired Fund as set forth in paragraph 1.2;
(b) Each Acquiring Fund will assume all of the corresponding Acquired
Fund's liabilities and obligations of any kind whatsoever, whether
absolute, accrued, contingent or otherwise, in existence on the Closing
Date (as defined in paragraph 1.2 hereof) (the "Obligations"), except that
expenses of the reorganization contemplated hereby to be paid by the Acquired
Fund pursuant to paragraph 9.2 shall not be assumed or paid by the Acquiring
Fund; and
(c) Each Acquiring Fund will issue and deliver to the corresponding
Acquired Fund in exchange for the net assets attributable to each class of
its shares a number of Acquisition Shares of the corresponding class
(including fractional shares, if any) determined by dividing the value of
such net assets, computed in the manner and as of the time and date set
forth in paragraph 2.1, by the net asset value of one Acquisition Share of
the corresponding class computed in the
manner and as of the time and date set forth in paragraph 2.2. Such
transactions shall take place at the closing provided for in paragraph
3.1 (the "Closing").
1.2. The assets of each Acquired Fund to be acquired by the corresponding
Acquiring Fund shall consist of all cash, securities, dividends and interest
receivable, receivables for shares sold and all other assets that are owned by
the Acquired Fund on the closing date provided in paragraph 3.1 (the "Closing
Date") and any deferred expenses, other than unamortized organizational
expenses, shown as an asset on the books of the Acquired Fund on the Closing
Date. Each Acquiring Fund agrees that all rights to indemnification and all
limitations of liability existing in favor of the applicable Acquired
Company's current and former trustees/directors and officers, acting in
their capacities as such, under the applicable Acquired Company's
organizational documents as in effect as of the date of this Agreement or
under any other agreement of the Acquired Fund shall survive the
reorganization as obligations of the Acquiring Trust, on behalf
of the Acquiring Fund, and shall continue in full force and effect,
without any amendment thereto, and shall constitute rights which may be
asserted against the Acquiring Trust, on behalf of the Acquiring Fund,
its successors or assigns.
1.3. As provided in paragraph 3.4, as soon after the Closing Date as is
conveniently practicable (the "Liquidation Date"), each Acquired Fund will
liquidate and distribute pro rata to its shareholders of record of each class
of its shares, determined as of the close of business on the Valuation Date (as
defined in paragraph 2.1), the Acquisition Shares of the corresponding class
received by the Acquired Fund pursuant to paragraph 1.1. Such liquidation and
distribution will be accomplished by the transfer of the Acquisition Shares
then credited to the account of each Acquired Fund on the books of the
corresponding Acquiring Fund to open accounts on the share records of the
corresponding Acquiring Fund in the names of the Acquired Fund's shareholders
and representing the respective pro rata number of Acquisition Shares due
such shareholders. The Acquiring Fund shall not be obligated to issue
certificates representing Acquisition Shares in connection with such exchange.
1.4. With respect to Acquisition Shares distributable pursuant to paragraph
1.3 to an Acquired Fund shareholder holding a certificate or certificates for
shares of the Acquired Fund, if any, on the Valuation Date, the Acquired Fund
will not permit such shareholder to receive Acquisition Share certificates
therefor, exchange such Acquisition Shares for shares of other investment
companies, effect an account transfer of such Acquisition Shares or pledge or
redeem such Acquisition Shares until such Acquired Fund shareholder has
surrendered all his or her outstanding certificates for Acquired Fund shares
or, in the event of lost certificates, posted adequate bond.
1.5. As soon as practicable after the Closing Date, each Acquired Fund
shall make all filings and take all other steps as shall be necessary and
proper to effect its complete dissolution under applicable state law. After
the Closing Date, no Acquired Fund shall conduct any business except in
connection with its dissolution.
2. VALUATION.
2.1. For the purpose of paragraph 1, the value of each Acquired Fund's
assets to be acquired by the corresponding Acquiring Fund hereunder shall be
the value of such assets computed as of the close of regular trading on the
New York Stock Exchange on the business day next preceding the Closing (such
time and date being herein called the "Valuation Date") using the valuation
procedures set forth in the organizational documents of the corresponding
Acquiring Fund and the then current prospectus or prospectuses or statement
or statements of additional information of the corresponding Acquiring Fund
(collectively, as amended or supplemented from time to time, the "Acquiring
Fund Prospectus"), after deduction for the expenses of the reorganization
contemplated hereby to be paid by the Acquired Fund pursuant to paragraph
9.2, and shall be certified by the Acquired Fund.
2.2. For the purpose of paragraph 2.1, the net asset value of an
Acquisition Share of each class shall be the net asset value per share
computed as of the close of regular trading on the New York Stock Exchange
on the Valuation Date, using the valuation procedures set forth in the
organizational documents of the Acquiring Fund and the Acquiring Fund
Prospectus.
3. CLOSING AND CLOSING DATE.
3.1. The Closing Date shall be on March 24, 2008 or March 31, 2008 (as
identified in Exhibit A hereto), or on such other date as the parties may
agree. The Closing shall be held at Columbia's offices, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or such other place as the parties may agree), at
such time as the parties may agree.
3.2. The portfolio securities of each Acquired Fund shall be made available
by the Acquired Fund to the custodian for the corresponding Acquiring Fund
(the "Custodian"), for examination no later than five business days preceding
the Valuation Date. On the Closing Date, such portfolio securities and all the
Acquired Fund's cash shall be delivered by the Acquired Fund to the Custodian
for the account of the corresponding Acquiring Fund, such portfolio securities
to be duly endorsed in proper form for transfer in such manner and condition as
to constitute good delivery thereof in accordance with the custom of brokers
or, in the case of portfolio securities held in the U.S. Treasury Department's
book-entry system or by the Depository Trust Company, Participants Trust
Company or other third party depositories, by transfer to the account of the
Custodian in accordance with Rule 17f-4, Rule 17f-5 or Rule 17f-7, as the
case may be, under the Investment Company Act of 1940, as amended (the
"1940 Act") and accompanied by all necessary federal and state stock transfer
stamps or a check for the appropriate purchase price thereof. The cash
delivered shall be in the form of currency or certified or official bank
checks, payable to the order of "State Street Bank and Trust Company,
custodian for [Acquiring Fund]".
3.3. In the event that on the Valuation Date (a) the New York Stock Exchange
shall be closed to trading or trading thereon shall be restricted, or (b)
trading or the reporting of trading on said Exchange or elsewhere shall be
disrupted so that accurate appraisal of the value of the net assets of each
Acquired Fund or the corresponding Acquiring Fund is impracticable, the Closing
Date shall be postponed until the first business day after the day when trading
shall have been fully resumed and reporting shall have been restored; provided
that if trading shall not be fully resumed and reporting restored within three
business days of the Valuation Date, this Agreement may be terminated by
either the Acquired Fund or the corresponding Acquiring Fund upon the giving
of written notice to the other party.
3.4. At the Closing, each Acquired Fund or its transfer agent shall deliver
to the corresponding Acquiring Fund or its designated agent a list of the names
and addresses of the Acquired Fund's shareholders and the number of outstanding
shares of each class of the Acquired Fund owned by each Acquired Fund
shareholder, all as of the close of business on the Valuation Date, certified
by any Vice President, Secretary or Assistant Secretary of the Acquired Fund.
The Acquiring Trust will provide to the Acquired Fund evidence satisfactory
to the Acquired Fund that the Acquisition Shares issuable pursuant to
paragraph 1.1 have been credited to the Acquired Fund's account on the
books of the Acquiring Fund. On the Liquidation Date, each Acquiring Fund
will provide to the corresponding Acquired Fund evidence satisfactory to the
corresponding Acquired Fund that such Acquisition Shares have been credited
pro rata to open accounts in the names of the corresponding Acquired Fund's
shareholders as provided in paragraph 1.3.
3.5. At the Closing, each party shall deliver to the other such bills of
sale, instruments of assumption of liabilities, checks, assignments, stock
certificates, receipts or other documents as such other party or its counsel
may reasonably request in connection with the transfer of assets, assumption of
liabilities and dissolution contemplated by paragraph 1.
4. REPRESENTATIONS AND WARRANTIES.
4.1. Each Acquired Fund represents and warrants the following to the
corresponding Acquiring Fund as of the date hereof and agrees to confirm the
continuing accuracy and completeness in all material respects of the following
on the Closing Date:
(a) Excelsior Funds Trust, of which Equity Income Fund and High Yield Fund
are series thereof, is a Delaware statutory trust that is duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and each of Excelsior Funds, Inc., of which Real Estate Fund is a series
thereof, and Excelsior Tax-Exempt Funds, Inc., of which Long-Term Tax-Exempt
Fund is a series thereof, is a Maryland corporation that is duly organized,
validly existing and in good standing under the laws of the State of Maryland;
(b) Each Acquired Company, of which each Acquired Fund is a series thereof, is
a duly registered investment company classified as a management company of the
open-end type and its registration with the Securities and Exchange Commission
as an investment company under the 1940 Act is in full force and effect, and
the Acquired Fund is a separate series thereof duly designated in accordance
with the applicable provisions of the Declaration of Trust or Articles of
Incorporation, as applicable, of the applicable Acquired Company and the 1940
Act;
(c) The Acquired Fund is not in violation in any material respect of any
provision of its organizational documents or of any agreement, indenture,
instrument, contract, lease or other undertaking to which the Acquired Fund is
a party or by which the Acquired Fund is bound, and the execution, delivery
and performance of this Agreement will not result in any such violation;
(d) The Acquired Fund has no material contracts or other commitments (other
than this Agreement and such other contracts as may be entered into in the
ordinary course of its business) that if terminated may result in material
liability to the Acquired Fund or under which (whether or not terminated) any
material payments for periods subsequent to the Closing Date will be due from
the Acquired Fund;
(e) To the knowledge of the Acquired Fund, except as has been disclosed in
writing to the corresponding Acquiring Fund, no litigation or administrative
proceeding or investigation of or before any court or governmental body is
presently pending or threatened as to the Acquired Fund, any of its properties
or assets, or any person whom the Acquired Fund may be obligated to indemnify
in connection with such litigation, proceeding or investigation, and the
Acquired Fund is not a party to or subject to the provisions of any order,
decree or judgment of any court or governmental body that materially and
adversely affects its business or its ability to consummate the transactions
contemplated hereby;
(f) The statement of assets and liabilities, the statement of operations,
the statement of changes in net assets, and the schedule of investments of
the Acquired Fund, as of the last day of and for its most recently completed
fiscal year, audited by PricewaterhouseCoopers LLP (and, if applicable, an
unaudited statement of assets and liabilities, statement of operations,
statement of changes in net assets and schedule of investments for any
subsequent semiannual period following the most recently completed fiscal
year), copies of which have been furnished to the corresponding Acquiring
Fund, fairly reflect the financial condition and results of operations of
the Acquired Fund as of such dates and for the periods then ended in
accordance with generally accepted accounting principles consistently
applied, and the Acquired Fund has no known liabilities of a material
amount, contingent or otherwise, other than those shown on the statements
of assets and liabilities referred to above or those incurred in the ordinary
course of its business since the last day of the Acquired Fund's most
recently completed fiscal year;
(g) Since the last day of the Acquired Fund's most recently completed
fiscal year, there has not been any material adverse change in the Acquired
Fund's financial condition, assets, liabilities or business (other than
changes occurring in the ordinary course of business), or any incurrence by
the Acquired Fund of indebtedness, except as disclosed in writing to the
corresponding Acquiring Fund. For the purposes of this subparagraph (g),
distributions of net investment income and net realized capital gains, changes
in portfolio securities, changes in the market value of portfolio securities
or net redemptions shall be deemed to be in the ordinary course of business;
(h) As of the Closing Date, all federal and other tax returns and reports
of the Acquired Fund required by law to have been filed by such date (giving
effect to extensions) shall have been filed, and all federal and other taxes
shown to be due on such returns and reports or on any assessment received
shall have been paid, or provisions shall have been made for the payment
thereof, except for amounts that alone and in the aggregate would not
reasonably be expected to have a material adverse effect. All of the Acquired
Fund's tax liabilities will have been adequately provided for on its books. To
the best of the Acquired Fund's knowledge, it will not have had any tax
deficiency or liability asserted against it or question with respect thereto
raised, and it will not be under audit by the Internal Revenue Service or by
any state or local tax authority for taxes in excess of those already paid;
(i) The Acquired Fund meets the requirements of subchapter M of the Code
for treatment as a "regulated investment company" within the meaning of
Section 851 of the Code, and will continue meeting such requirements at all
times through the Closing Date. The Acquired Fund has not at any time since
its inception been liable for, and is not now liable for, any material income
or excise tax pursuant to Section 852 or 4982 of the Code. The Acquired Fund
is in compliance in all material respects with applicable regulations of the
Internal Revenue Service pertaining to the reporting of dividends and other
distributions on and redemptions of its capital stock and to withholding in
respect of dividends and other distributions to shareholders, and is
not liable for any material penalties that could be imposed thereunder;
(j) Exhibit B hereto sets forth the authorized capital of the Acquired
Fund. All issued and outstanding shares of the Acquired Fund are, and at
the Closing Date will be, duly and validly issued and outstanding, fully
paid and non-assessable (except as set forth in the Acquired Fund's then
current prospectus or prospectuses or statement or statements of additional
information (collectively, as amended or supplemented from time to time,
the "Acquired Fund Prospectus")) by the Acquired Fund and will have been
issued in compliance with all applicable registration or qualification
requirements of federal and state securities laws. Except as set forth on
Exhibit B hereto, no options, warrants or other rights to subscribe for
or purchase, or securities convertible into, any shares of common stock of
the Acquired Fund are outstanding and none will be outstanding on the
Closing Date;
(k) The Acquired Fund's investment operations from inception to the
date hereof have been in compliance in all material respects with the
investment policies and investment restrictions set forth in the Acquired
Fund Prospectus, except as previously disclosed in writing to the
corresponding Acquiring Fund;
(l) The execution, delivery and performance of this Agreement has
been duly authorized by the trustees/directors of the Acquired Fund, and,
upon approval thereof by the required majority of the shareholders of the
Acquired Fund and assuming the due authorization, execution and delivery
of this Agreement by the Acquiring Trust and Columbia, this Agreement will
constitute the valid and binding obligation of the Acquired Fund
enforceable in accordance with its terms except as the same may be limited
by bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights generally and other equitable
principles;
(m) The Acquisition Shares to be issued to the Acquired Fund pursuant
to paragraph 1 will not be acquired for the purpose of making any
distribution thereof other than to the Acquired Fund's shareholders as
provided in paragraph 1.3;
(n) The information provided by the Acquired Fund for use in the
Registration Statement and Prospectus/Proxy Statement referred to in
paragraph 5.3 shall be accurate and complete in all material respects
and shall comply with federal securities and other laws and regulations
as applicable thereto;
(o) No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by the Acquired
Fund of the transactions contemplated by this Agreement, except such as
may be required under the Securities Act of 1933, as amended (the "1933
Act"), the Securities Exchange Act of 1934, as amended (the "1934 Act"),
the 1940 Act and state securities or "Blue Sky" laws (which terms used
herein shall include the laws of the District of Columbia and of
Puerto Rico);
(p) At the Closing Date, the Acquired Fund will have good and
marketable title to its assets to be transferred to the corresponding
Acquiring Fund pursuant to paragraph 1.1 and will have full right,
power and authority to sell, assign, transfer and deliver the
Investments (as defined below) and any other assets and liabilities
of the Acquired Fund to be transferred to the corresponding Acquiring
Fund pursuant to this Agreement. At the Closing Date, subject only to
the delivery of the Investments and any such other assets and
liabilities and payment therefor as contemplated by this Agreement,
the corresponding Acquiring Fund will acquire good and marketable
title thereto and will acquire the Investments and any such other
assets and liabilities subject to no encumbrances, liens or security
interests whatsoever and without any restrictions upon the transfer
thereof, except as previously disclosed to the corresponding
Acquiring Fund. As used in this Agreement, the term "Investments"
shall mean the Acquired Fund's investments shown on the schedule of
its investments as of the date of its most recently completed fiscal
year, referred to in subparagraph 4.1(f) hereof, as supplemented
with such changes in the portfolio as the Acquired Fund shall make,
and changes resulting from stock dividends, stock split-ups, mergers
and similar corporate actions through the Closing Date;
(q) At the Closing Date, the Acquired Fund will have sold such of
its assets, if any, as are necessary based on information provided by
the corresponding Acquiring Fund and contingent on the accuracy of
such information to assure that, after giving effect to the
acquisition of the assets of the Acquired Fund pursuant to this
Agreement, the Acquiring Fund will remain a "diversified company"
within the meaning of Section 5(b)(1) of the 1940 Act, if applicable,
and in compliance with such other mandatory investment restrictions
as are set forth in the Acquiring Fund Prospectus, as amended through
the Closing Date. Notwithstanding the foregoing, nothing herein will
require the Acquired Fund to dispose of any investments or securities
if, in the reasonable judgment of the Acquired Fund, such disposition
would either violate the Acquired Fund's fiduciary duty to its
shareholders or adversely affect the tax-free nature of the
reorganization contemplated by this Agreement; and
(r) No registration of any of the Investments would be required
if they were, as of the time of such transfer, the subject of a
public distribution by either of the corresponding Acquiring Fund
or the Acquired Fund, except as previously disclosed by the Acquired
Fund to the corresponding Acquiring Fund.
4.2. Each Acquiring Fund represents and warrants the following to
the corresponding Acquired Fund as of the date hereof and agrees to
confirm the continuing accuracy and completeness in all material
respects of the following on the Closing Date:
(a) The Acquiring Trust is a Massachusetts business trust that
is duly organized, validly existing and in good standing under the
laws of The Commonwealth of Massachusetts;
(b) The Acquiring Trust is a duly registered investment company
classified as a management company of the open-end type and its
registration with the Securities and Exchange Commission as an
investment company under the 1940 Act is in full force and effect,
and the Acquiring Fund is a separate series thereof duly designated
in accordance with the applicable provisions of the Declaration of
Trust of the Acquiring Trust and the 1940 Act;
(c) The Acquiring Fund Prospectus conforms in all material
respects to the applicable requirements of the 1933 Act and the
rules and regulations of the Securities and Exchange Commission
thereunder and does not include any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and
there are no material contracts to which the Acquiring Fund is a
party that are not referred to in such Prospectus or in the
registration statement of which it is a part;
(d) At the Closing Date, the Acquiring Fund will have good
and marketable title to its assets;
(e) The Acquiring Fund is not in violation in any material
respect of any provisions of its organizational documents or of
any agreement, indenture, instrument, contract, lease or other
undertaking to which the Acquiring Fund is a party or by which
the Acquiring Fund is bound, and the execution, delivery and
performance of this Agreement will not result in any such violation;
(f) To the knowledge of the Acquiring Fund, except as has been
disclosed in writing to the corresponding Acquired Fund, no
litigation or administrative proceeding or investigation of or before
any court or governmental body is presently pending or threatened as
to the Acquiring Fund, any of its properties or assets, or any person
whom the Acquiring Fund may be obligated to indemnify in connection
with such litigation, proceeding or investigation, and the Acquiring
Fund is not a party to or subject to the provisions of any order,
decree or judgment of any court or governmental body that materially
and adversely affects its business or its ability to consummate the
transactions contemplated hereby;
(g) The statement of assets and liabilities, the statement of
operations, the statement of changes in net assets, and the schedule
of investments of the Acquiring Fund, as of the last day of and for
its most recently completed fiscal year, audited by Pricewater
houseCoopers LLP (and, if applicable, an unaudited statement of assets
and liabilities, statement of operations, statement of changes in net
assets and schedule of investments for any subsequent semiannual
period following the most recently completed fiscal year), copies of
which have been furnished to the Acquired Fund, fairly reflect the
financial condition and results of operations of the Acquiring Fund
as of such dates and for the periods then ended in accordance with
generally accepted accounting principles consistently applied, and
the Acquiring Fund has no known liabilities of a material amount,
contingent or otherwise, other than those shown on the statements of
assets referred to above or those incurred in the ordinary course of
its business since the last day of the Acquiring Fund's most recently
completed fiscal year;
(h) Since the last day of the Acquiring Fund's most recently
completed fiscal year, there has not been any material adverse change
in the Acquiring Fund's financial condition, assets, liabilities or
business (other than changes occurring in the ordinary course of
business), or any incurrence by the Acquiring Fund of indebtedness,
except as disclosed in writing to the Acquired Fund. For the purposes
of this subparagraph (h), distributions of net investment income and
net realized capital gains, changes in portfolio securities, changes
in the market value of portfolio securities or net redemptions shall
be deemed to be in the ordinary course of business;
(i) As of the Closing Date, all federal and other tax returns and
reports of the Acquiring Fund required by law to have been filed by
such date (giving effect to extensions) shall have been filed, and all
federal and other taxes shown to be due on such returns and reports or
any assessments received shall have been paid, or provisions shall have
been made for the payment thereof. All of the Acquiring Fund's tax
liabilities will have been adequately provided for on its books. To the
best of the Acquiring Fund's knowledge, it will not have had any tax
deficiency or liability asserted against it or question with respect
thereto raised, and it will not be under audit by the Internal Revenue
Service or by any state or local tax authority for taxes in excess of
those already paid;
(j) The Acquiring Fund has met the requirements of subchapter M of
the Code for treatment as a "regulated investment company" within the
meaning of Section 851 of the Code in respect of each taxable year
since the commencement of operations, and will continue to meet such
requirements at all times through the Closing Date. The Acquiring
Fund has not at any time since its inception been liable for, nor is
it now liable for, any material income or excise tax pursuant to
Section 852 or 4982 of the Code. The Acquiring Fund is in compliance
in all material respects with applicable regulations of the Internal
Revenue Service pertaining to the reporting of dividends and other
distributions on and redemptions of its capital stock and to
withholding in respect of dividends and other distributions to
shareholders, and is not liable for any material penalties that
could be imposed thereunder;
(k) Exhibit C hereto sets forth the authorized capital of the
Acquiring Fund. All issued and outstanding shares of the Acquiring
Fund are, and at the Closing Date will be, duly and validly issued
and outstanding, fully paid and non-assessable (except as set forth
in the Acquiring Fund Prospectus) by the Acquiring Fund and will have
been issued in compliance with all applicable registration or
qualification requirements of federal and state securities laws.
Except as set forth on Exhibit C hereto, no options, warrants or other
rights to subscribe for or purchase, or securities convertible into,
any shares of common stock of the Acquiring Fund are outstanding and
none will be outstanding on the Closing Date;
(l) The Acquiring Fund's investment operations from inception to
the date hereof have been in compliance in all material respects with
the investment policies and investment restrictions set forth in the
Acquiring Fund Prospectus;
(m) The execution, delivery and performance of this Agreement have
been duly authorized by all necessary action on the part of the
Acquiring Fund, and, assuming the due authorization, execution and
delivery of this Agreement by the Acquired Company and Columbia, this
Agreement constitutes the valid and binding obligation of the Acquiring
Fund enforceable in accordance with its terms, except as the same may
be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally and other
equitable principles;
(n) The Acquisition Shares to be issued and delivered to the
corresponding Acquired Fund pursuant to the terms of this Agreement will
at the Closing Date have been duly authorized and, when so issued and
delivered, will be duly and validly issued shares in the Acquiring Fund,
and will be fully paid and non-assessable (except as set forth in the
Acquiring Fund Prospectus) by the Acquiring Fund, and no shareholder of
the Acquiring Fund will have any preemptive right of subscription or
purchase in respect thereof;
(o) The information to be furnished by the Acquiring Fund for use
in the Registration Statement and Prospectus/Proxy Statement referred
to in paragraph 5.3 shall be accurate and complete in all material
respects and shall comply with federal securities and other laws and
regulations applicable thereto; and
(p) No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by the
Acquiring Fund of the transactions contemplated by this Agreement,
except such as may be required under the 1933 Act, the 1934 Act, the
1940 Act and state securities or "Blue Sky" laws (which term as
used herein shall include the laws of the District of Columbia and
of Puerto Rico).
5. COVENANTS OF EACH ACQUIRED FUND AND THE CORRESPONDING
ACQUIRING FUND.
Each Acquired Fund and the corresponding Acquiring Fund hereby
covenants and agrees with the other as follows:
5.1. Each Acquiring Fund and each Acquired Fund will each operate
its business in the ordinary course between the date hereof and the
Closing Date, it being understood that such ordinary course of
business will include regular and customary periodic dividends and
distributions.
5.2. Each Acquired Fund will call a meeting of its shareholders
to be held prior to the Closing Date to consider and act upon this
Agreement and take all other reasonable action necessary to obtain
the required shareholder approval of the transactions contemplated
hereby.
5.3. In connection with each Acquired Fund shareholders' meeting
referred to in paragraph 5.2, the corresponding Acquiring Fund will
prepare a prospectus/proxy statement (the "Prospectus/Proxy
Statement") for such meeting, to be included in a Registration
Statement on Form N-14 (the "Registration Statement"), which the
corresponding Acquiring Fund will prepare and file for registration
under the 1933 Act of the Acquisition Shares to be distributed to
each Acquired Fund's shareholders pursuant hereto, all in compliance
with the applicable requirements of the 1933 Act, the 1934 Act, and
the ▇▇▇▇ ▇▇▇.
5.4. The information to be furnished by each Acquired Fund for
use in the Registration Statement and the information to be furnished
by the corresponding Acquiring Fund for use in the Prospectus/Proxy
Statement, each as referred to in paragraph 5.3, shall be accurate
and complete in all material respects and shall comply with federal
securities and other laws and regulations thereunder applicable
thereto.
5.5. Each Acquiring Fund will advise the corresponding Acquired
Fund promptly if at any time prior to the Closing Date the assets of
such Acquired Fund include any securities that the Acquiring Fund is
not permitted to acquire.
5.6. Subject to the provisions of this Agreement, the Acquired
Fund and the corresponding Acquiring Fund will each take, or cause
to be taken, all action, and do or cause to be done, all things
reasonably necessary, proper or advisable to cause the conditions to
the other party's obligations to consummate the transactions
contemplated hereby to be met or fulfilled and otherwise to consummate
and make effective such transactions.
5.7. Each Acquiring Fund will use all reasonable efforts to obtain
the approvals and authorizations required by the 1933 Act, the 1940
Act and such of the state securities or "Blue Sky" laws as it may
deem appropriate in order to continue its operations after the
Closing Date.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH ACQUIRED FUND.
The obligation of each Acquired Fund to consummate the transactions
provided for herein shall be subject, at its election, to the
performance by the corresponding Acquiring Fund of all the
obligations to be performed by it hereunder on or before the Closing
Date and, in addition thereto, to the following further conditions:
6.1. The corresponding Acquiring Fund shall have delivered to
the Acquired Fund a certificate executed in its name by its President
or a Vice President and its Treasurer or an Assistant Treasurer, in
form and substance satisfactory to the Acquired Fund and dated as of
the Closing Date, to the effect that the representations and warranties
of the corresponding Acquiring Fund made in this Agreement are true
and correct at and as of the Closing Date, except as they may be
affected by the transactions contemplated by this Agreement, and that
the corresponding Acquiring Fund has complied with all the covenants
and agreements and satisfied all of the conditions on its part to be
performed or satisfied under this Agreement at or prior to the Closing
Date.
6.2. The Acquired Fund shall have received a favorable opinion of
Ropes & ▇▇▇▇ LLP, dated the Closing Date and in a form satisfactory
to the Acquired Fund, to the following effect:
(a) The Acquiring Trust is a Massachusetts business trust duly
organized and validly existing under the laws of The Commonwealth of
Massachusetts and has power to own all of its properties and assets
and to carry on its business as presently conducted, and the
corresponding Acquiring Fund is a separate series thereof duly
constituted in accordance with the applicable provisions of the 1940
Act and the Declaration of Trust and Bylaws of the Acquiring Trust;
(b) This Agreement has been duly authorized, executed and
delivered on behalf of the corresponding Acquiring Fund and, assuming
the Registration Statement and Prospectus/Proxy Statement referred to
in paragraph 5.3 comply with applicable federal securities laws and
assuming the due authorization, execution and delivery of this
Agreement by the Acquired Fund and Columbia, is the valid and binding
obligation of the corresponding Acquiring Fund enforceable against
the corresponding Acquiring Fund in accordance with its terms, except
as the same may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally and other equitable principles;
(c) The corresponding Acquiring Fund has the power to assume the
liabilities to be assumed by it hereunder, and, upon consummation of
the transactions contemplated hereby, the corresponding Acquiring Fund
will have duly assumed such liabilities;
(d) The Acquisition Shares to be issued for transfer to the
Acquired Fund's shareholders as provided by this Agreement are duly
authorized and upon such transfer and delivery will be validly issued
and outstanding and fully paid and nonassessable shares in the
corresponding Acquiring Fund, and no shareholder of the corresponding
Acquiring Fund has any preemptive right of subscription or purchase
in respect thereof;
(e) The execution and delivery of this Agreement did not, and the
performance by the corresponding Acquiring Fund of its obligations
hereunder will not, violate the corresponding Acquiring Fund's
organizational documents, or any provision of any agreement known to
such counsel to which the corresponding Acquiring Fund is a party
or by which it is bound or, to the knowledge of such counsel, result
in the acceleration of any obligation or the imposition of any
penalty under any agreement, judgment or decree to which such
Acquiring Fund is a party or by which it is bound;
(f) To the knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority is
required for the consummation by the corresponding Acquiring Fund of
the transactions contemplated by this Agreement except such as may
be required under state securities or "Blue Sky" laws or such as
have been obtained;
(g) Such counsel does not know of any legal or governmental
proceedings relating to the Acquiring Fund existing on or before
the date of mailing of the Prospectus/Proxy Statement referred to
in paragraph 5.3 or the Closing Date required to be described in
the Registration Statement that are not described as required;
(h) The Acquiring Trust is registered with the Securities
and Exchange Commission as an investment company under the 1940 Act;
(i) To the knowledge of such counsel, except as has been
disclosed in writing to the Acquired Fund or disclosed in the
Prospectus/Proxy Statement referred to in paragraph 5.3, no
litigation or administrative proceeding or investigation of or
before any court or governmental body is presently pending or
threatened as to the corresponding Acquiring Fund or any of its
properties or assets or any person whom the Acquired Fund may be
obligated to indemnify in connection with such litigation,
proceeding or investigation, and the corresponding Acquiring
Fund is not a party to or subject to the provisions of any order,
decree or judgment of any court or governmental body that
materially and adversely affects its business or its ability
to consummate the transaction contemplated hereby; and
(j) The Registration Statement has become effective under
the 1933 Act and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act and no proceedings for that
purpose have been instituted or threatened by the Securities and
Exchange Commission. Such counsel may rely on certificates of
officers or trustees of the Acquiring Trust.
6.3. For the period beginning at the Closing Date of the last
reorganization of any series for each Acquired Company and ending
not less than six years thereafter, Columbia, its successors and
assigns, shall provide, or cause to be provided, liability coverage
at least comparable to the liability coverage currently applicable
to both former and current directors and officers of such Acquired
Company as of the date of this Agreement, covering the actions of
such directors and officers of such Acquired Company for the period
they served as such. Any related costs or expenses shall be borne
by the applicable Acquired Company.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH ACQUIRING FUND.
The obligations of each Acquiring Fund to complete the transactions
provided for herein shall be subject, at its election, to the
performance by the corresponding Acquired Fund of all the obligations
to be performed by it hereunder on or before the Closing Date and,
in addition thereto, to the following further conditions:
7.1. The corresponding Acquired Fund shall have delivered to the
Acquiring Fund a certificate executed in its name by its President or
a Vice President and its Treasurer or an Assistant Treasurer, in form
and substance satisfactory to the Acquiring Fund and dated as of the
Closing Date, to the effect that the representations and warranties
of the corresponding Acquired Fund made in this Agreement are true
and correct at and as of the Closing Date, except as they may be
affected by the transactions contemplated by this Agreement, and
that the corresponding Acquired Fund has complied with all the
covenants and agreements and satisfied all of the conditions on its
part to be performed or satisfied under this Agreement at or prior
to the Closing Date;
7.2. The Acquiring Fund shall have received a favorable opinion
of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, dated the Closing Date and in a
form satisfactory to the Acquiring Fund, to the following effect:
(a) Each Acquired Company is a Delaware statutory trust or
Maryland corporation, as applicable, duly organized and validly
existing under the laws of the State of Delaware or Maryland,
respectively, and has power to own all of its properties and
assets and to carry on its business as presently conducted,
and the corresponding Acquired Fund is a separate series thereof
duly constituted in accordance with the applicable provisions of
the 1940 Act and the Declaration of Trust or Articles of
Incorporation, respectively, and Bylaws of such Acquired Company;
(b) This Agreement has been duly authorized, executed and
delivered on behalf of the corresponding Acquired Fund and, assuming
the Registration Statement and Prospectus/Proxy Statement referred
to in paragraph 5.3 comply with applicable federal securities laws
and assuming the due authorization, execution and delivery of this
Agreement by the Acquiring Fund and Columbia, is the valid and
binding obligation of the corresponding Acquired Fund enforceable
against the corresponding Acquired Fund in accordance with its terms,
except as the same may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally and other equitable principles;
(c) The corresponding Acquired Fund has the power to sell,
assign, transfer and deliver the assets to be transferred by it
hereunder, and, upon consummation of the transactions contemplated
hereby, the corresponding Acquired Fund will have duly transferred
such assets to the Acquiring Fund;
(d) The execution and delivery of this Agreement did not, and
the performance by the corresponding Acquired Fund of its obligations
hereunder will not, violate the corresponding Acquired Fund's
organizational documents or any provision of any agreement known to
such counsel to which the corresponding Acquired Fund is a
party or by which it is bound or, to the knowledge of such counsel,
result in the acceleration of any obligation or the imposition of
any penalty under any agreement, judgment or decree to which the
corresponding Acquired Fund is a party or by which it is bound;
(e) To the knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority is
required for the consummation by the corresponding Acquired Fund of
the transactions contemplated by this Agreement, except such as
have been obtained;
(f) Such counsel does not know of any legal or governmental
proceedings relating to the corresponding Acquired Fund existing
on or before the date of mailing of the Prospectus/Proxy Statement
referred to in paragraph 5.3 or the Closing Date required to be
described in the Prospectus/Proxy Statement that are not described
as required;
(g) Each Acquired Company is registered with the Securities
and Exchange Commission as an investment company under the 1940
Act; and
(h) To the knowledge of such counsel, except as has been
disclosed in writing to the Acquiring Fund or disclosed in the
Prospectus/Proxy Statement referred to in paragraph 5.3, no
litigation or administrative proceeding or investigation of or
before any court or governmental body is presently pending or
threatened as to the corresponding Acquired Fund or any of its
properties or assets or any person whom the Acquiring Fund may be
obligated to indemnify in connection with such litigation,
proceeding or investigation, and the corresponding Acquired Fund
is not a party to or subject to the provisions of any order,
decree or judgment of any court or governmental body that
materially and adversely affects its business or its ability
to consummate the transaction contemplated thereby.
Such counsel may rely as to matters governed by the laws of
The Commonwealth of Massachusetts on an opinion of local counsel
and/or certificates of officers or trustees/directors of the
Acquired Company.
7.3. Prior to the Closing Date, the corresponding Acquired
Fund shall have declared a dividend or dividends which, together
with all previous dividends, shall have the effect of distributing
(i) all of the excess of (x) the corresponding Acquired Fund's
interest income excludable from gross income under Section 103 of
the Code over (y) the corresponding Acquired Fund's deductions
disallowed under Sections 265 or 171 of the Code and (ii) all of
the corresponding Acquired Fund's investment company taxable income
as defined in Section 852 of the Code (in each case computed without
regard to any deduction for dividends paid) for its taxable years
ending on or after March 31, 2007 (June 30, 2007 for Real Estate
Fund), and on or prior to the Closing Date (computed without regard
to any deduction for dividends paid), and all of its net capital
gains realized (after reduction for any capital loss carryover) in
each of its taxable years ending on or after March 31, 2007 (June 30,
2007 for Real Estate Fund), and on or prior to the Closing Date.
7.4. The corresponding Acquired Fund shall have furnished to
the Acquiring Fund a certificate, signed by the President (or any
Vice President) and the Treasurer (or Assistant Treasurer) of the
corresponding Acquired Fund, as to the adjusted tax basis in the hands
of the corresponding Acquired Fund of the securities delivered to the
Acquiring Fund pursuant to this Agreement.
7.5. The custodian of the corresponding Acquired Fund shall have
delivered to the Acquiring Fund a certificate identifying all of the
assets of the corresponding Acquired Fund held by such custodian as
of the Valuation Date.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH ACQUIRED
FUND AND THE CORRESPONDING ACQUIRING FUND.
The respective obligations of each Acquired Fund and the
corresponding Acquiring Fund hereunder are subject to the further
conditions that on or before the Closing Date:
8.1. This Agreement and the transactions contemplated herein shall
have received all necessary shareholder approvals at the meeting of
shareholders of each Acquired Fund referred to in paragraph 5.2.
8.2. On the Closing Date, no action, suit or other proceeding
shall be pending before any court or governmental agency in which it
is sought to restrain or prohibit, or obtain damages or other relief
in connection with, this Agreement or the transactions contemplated
hereby. On the Closing Date, the Securities and Exchange Commission
will not have issued an unfavorable report under Section 25(b) of the
1940 Act, nor instituted any proceeding seeking to enjoin the
consummation of the transactions contemplated by this Agreement under
Section 25(c) of the 1940 Act.
8.3. All consents of other parties and all other consents,
orders and permits of federal, state and local regulatory authorities
(including those of the Securities and Exchange Commission and of
state "Blue Sky" and securities authorities) deemed necessary by the
Acquired Fund or the corresponding Acquiring Fund to permit
consummation, in all material respects, of the transactions
contemplated hereby shall have been obtained, except when failure
to obtain any such consent, order or permit would not involve a risk
of a material adverse effect on the assets or properties of the
Acquired Fund or the corresponding Acquiring Fund.
8.4. The Registration Statement shall have become effective under
the 1933 Act and no stop order suspending the effectiveness thereof
shall have been issued and, to the best knowledge of the parties
hereto, no investigation or proceeding for that purpose shall have
been instituted or be pending, threatened or contemplated under
the ▇▇▇▇ ▇▇▇.
8.5. The Acquired Fund shall have received a favorable opinion
of Ropes & ▇▇▇▇ LLP satisfactory to the Acquired Fund, and the
corresponding Acquiring Fund shall have received a favorable opinion
of Ropes & ▇▇▇▇ LLP satisfactory to the corresponding Acquiring Fund,
each substantially to the effect that, on the basis of existing
provisions of the Code, Treasury regulations promulgated thereunder,
current administrative rules, pronouncements, and court decisions,
while the matter is not free from doubt, generally for federal income
tax purposes:
(a) The transactions contemplated by this Agreement will
constitute a reorganization within the meaning of Section 368(a) of
the Code, and the Acquired Fund and the corresponding Acquiring Fund
will each be "a party to a reorganization" within the meaning of
Section 368(b) of the Code;
(b) No gain or loss will be recognized by the Acquired Fund (i)
upon the transfer of its assets to the corresponding Acquiring Fund
in exchange for the Acquisition Shares and the assumption by the
corresponding Acquiring Fund of the liabilities of the Acquired
Fund or (ii) upon the distribution of the Acquisition Shares by the
Acquired Fund to its shareholders in liquidation, as contemplated
in paragraph 1 hereof;
(c) No gain or loss will be recognized by the corresponding
Acquiring Fund upon receipt of the assets of the Acquired Fund in
exchange for the assumption of liabilities and obligations and
issuance of the Acquisition Shares as contemplated
in paragraph 1 hereof;
(d) The tax basis of the assets of the Acquired Fund acquired
by the corresponding Acquiring Fund will be the same as the tax
basis of such assets in the hands of the Acquired Fund immediately
prior to the transfer;
(e) The holding period of the assets of the Acquired Fund in
the hands of the corresponding Acquiring Fund will include the
period during which such assets were held by the Acquired Fund;
(f) No gain or loss will be recognized by the Acquired Fund's
shareholders upon the exchange of all of their shares of the
Acquired Fund for the Acquisition Shares;
(g) The aggregate tax basis of the Acquisition Shares to be
received by a shareholder of the Acquired Fund will be the same
as the aggregate tax basis of the Acquired Fund's shares exchanged
therefor;
(h) The Acquired Fund shareholder's holding period for the
Acquisition Shares to be received will include the period during
which the Acquired Fund's shares exchanged therefor were held,
provided that such shareholder held the Acquired Fund's shares as
a capital asset on the date of the exchange; and
(i) The corresponding Acquiring Fund will succeed to and
take into account 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 regulations thereunder.
The opinion will be based on certain factual certifications
made by officers of the Acquired Fund, the corresponding
Acquiring Fund, the applicable Acquired Company and the Acquiring
Trust and will also be based on customary assumptions. The opinion
is not a guarantee that the tax consequences of the relevant
reorganization will be as described above. The opinion will
note and distinguish certain published precedent. There is no
assurance that the Internal Revenue Service or a court would
agree with the opinion.
Ropes & ▇▇▇▇ LLP will express no view with respect to the
effect of the reorganization on any transferred asset as to
which any unrealized gain or loss is required to be recognized
under federal income tax principles (i) at the end of a taxable
year or upon termination thereof, or (ii) upon the transfer of
such asset regardless of whether such a transfer would
otherwise be a non-taxable transaction.
8.6. At any time prior to the Closing, any of the foregoing
conditions of this Agreement, except paragraph 8.1, may be
waived jointly by the board of trustees/directors of the
applicable Acquired Company and the Acquiring Trust, if, in
their judgment, such waiver will not have a material adverse
effect on the interests of the shareholders of the Acquired
Fund or the corresponding Acquiring Fund.
9. BROKERAGE FEES AND EXPENSES.
9.1. Each Acquired Fund and corresponding Acquiring Fund
represents and warrants to the other that there are no brokers
or finders entitled to receive any payments
in connection with the transactions provided for herein.
9.2. All fees paid to governmental authorities for the
registration or qualification of the Acquisition Shares and
all transfer agency costs related to the Acquisition Shares
shall be allocated to the corresponding Acquiring Fund. All
fees and expenses related to printing and mailing communications
to Acquired Fund shareholders shall be allocated to the
Acquired Fund. All of the other expenses of the transactions,
including without limitation, accounting, legal and custodial
expenses, contemplated by this Agreement shall be allocated
equally between the Acquired Fund and the corresponding Acquiring
Fund. The expenses detailed above shall be borne by the Fund to
which they are allocated; except that Columbia shall
bear such expenses to the extent such expenses exceed the
anticipated reduction in expenses borne by the Fund's shareholders
over the first year following the reorganization. In the event the
Closing does not occur, Columbia shall bear all such expenses.
10. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES.
10.1. Each Acquired Fund and corresponding Acquiring Fund agrees
that neither party has made any representation, warranty or covenant
not set forth herein and that this Agreement constitutes the entire
agreement between the parties.
10.2. The representations, warranties and covenants contained in
this Agreement or in any document delivered pursuant hereto or in
connection herewith shall not survive the consummation of the
transactions contemplated hereunder except paragraphs 1.1, 1.2, 1.3,
1.5, 5.4, 5.6, 6.3, 9, 10, 13 and 14.
11. TERMINATION.
11.1. This Agreement may be terminated by the mutual agreement
of each Acquired Fund and corresponding Acquiring Fund. In addition,
either an Acquired Fund or the corresponding Acquiring Fund may at
its option terminate this Agreement at or prior to the Closing
Date because:
(a) of a material breach by the other of any representation,
warranty, covenant or agreement contained herein to be performed
by the other party at or prior to the Closing Date;
(b) a condition herein expressed to be precedent to the
obligations of the terminating party has not been met and it
reasonably appears that it will not or cannot be met; or
(c) any governmental authority of competent jurisdiction shall
have issued any judgment, injunction, order, ruling or decree or
taken any other action restraining, enjoining or otherwise
prohibiting this Agreement or the consummation of any of the
transactions contemplated herein and such judgment, injunction,
order, ruling, decree or other action becomes final and non-
appealable; provided that the party seeking to terminate this
Agreement pursuant to this Section 11.1(c) shall have used its
reasonable best efforts to have such judgment, injunction, order,
ruling, decree or other action lifted, vacated or denied.
If the transactions contemplated by this Agreement have not
been substantially completed by December 31, 2008, this Agreement
shall automatically terminate on that date unless a later date is
agreed to by both the Acquired Fund and the corresponding
Acquiring Fund.
11.2. If for any reason, except for willful default by a party,
the transactions contemplated by this Agreement are not consummated,
no party shall be liable to any other party for any damages resulting
therefrom, including without limitation consequential damages.
12. AMENDMENTS.
This Agreement may be amended, modified or supplemented in
such manner as may be mutually agreed upon in writing by the
authorized officers of each Acquired Fund and corresponding Acquiring
Fund; provided, however, that following the shareholders' meeting
called by each Acquired Fund pursuant to paragraph 5.2 no such
amendment may have the effect of changing the provisions for
determining the number of the Acquisition Shares to be issued to
shareholders of such Acquired Fund under this Agreement to the
detriment of such shareholders without their further approval.
13. NOTICES.
Any notice, report, statement or demand required or
permitted by any provisions of this Agreement shall be in writing
and shall be given by prepaid telegraph, telecopy or certified mail
addressed to the Acquired Fund or the corresponding Acquiring Fund,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Secretary.
14. HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT;
NON-RECOURSE.
14.1. The article and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
14.2. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
14.3. This Agreement shall be governed by and construed in
accordance with the domestic substantive laws of The Commonwealth
of Massachusetts, without giving effect to any choice or conflicts
of law rule or provision that would result in the application of
the domestic substantive laws of any other jurisdiction.
14.4. This Agreement shall bind and inure to the benefit of
the parties hereto and their respective successors and assigns,
but no assignment or transfer hereof or of any rights or obligations
hereunder shall be made by any party without the written consent of
the other party. Nothing herein expressed or implied is intended
or shall be construed to confer upon or give any person, firm or
corporation, other than the parties hereto and their respective
successors and assigns, any rights or remedies under or by reason
of this Agreement.
14.5. A copy of the Declaration of Trust of the Acquiring Trust
is on file with the Secretary of The Commonwealth of Massachusetts,
and notice is hereby given that no trustee, officer, agent or
employee of the Acquiring Trust shall have any personal liability
under this Agreement, and that insofar as it relates to any Acquiring
Fund, this Agreement is binding only upon the assets and properties of
such Acquiring Fund.
[THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as a sealed instrument by its President, a Vice
President or Treasurer and attested by its Secretary or Assistant
Secretary.
EXCELSIOR FUNDS TRUST
EXCELSIOR FUNDS, INC.
EXCELSIOR TAX-EXEMPT FUNDS, INC.
Each on behalf of each of its Acquired Funds
Attested by:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Secretary Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President, Chief Financial
Officer and Treasurer
COLUMBIA FUNDS SERIES TRUST I
On behalf of each of its Acquiring Funds
Attested by:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Secretary Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President, Chief Financial
Officer and Treasurer
Solely for purposes of Paragraphs 6.3 and 9.2
of the Agreement
COLUMBIA MANAGEMENT ADVISORS, LLC
Attested by:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary Title: Managing Director
EXHIBIT A
Acquired Company/Acquired Fund Acquiring Trust/Acquiring Fund
(Share Classes) (Share Classes) Closing Date
EXCELSIOR FUNDS TRUST COLUMBIA FUNDS SERIES TRUST I
Equity Income Fund Columbia Dividend Income Fund March 31, 2008
Retirement Shares Class Class R
Shares Class Class Z
High Yield Fund Columbia High Yield Oppty Fund March 24, 2008
Institutional Shares Class Class Z
Shares Class Class Z
EXCELSIOR TAX-EXEMPT FUNDS, INC COLUMBIA FUNDS SERIES TRUST I
Long-Term Tax-Exempt Fund Columbia Tax-Exempt Fund March 24, 2008
Shares Class Class Z
EXCELSIOR FUNDS, INC. COLUMBIA FUNDS SERIES TRUST I
Real Estate Fund Columbia Real Estate Equity Fd March 24, 2008
Shares Class Class Z
EXHIBIT B
Authorized Capital of each Acquired Fund
Acquired Fund Authorized Capital
Equity Income Fund Unlimited
High Yield Fund Unlimited
Long-Term Tax-Exempt Fund 500,000,000
Real Estate Fund 500,000,000
EXHIBIT C
Authorized Capital of each Acquiring Fund
Acquiring Fund Authorized Capital
Columbia Dividend Income Fund Unlimited
Columbia High Yield Opportunity Fund Unlimited
Columbia Tax-Exempt Fund Unlimited
Columbia Real Estate Equity Fund Unlimited