AMENDED AND RESTATED UNDERWRITING AGREEMENT
BETWEEN COLUMBIA ACORN TRUST
AND COLUMBIA FUNDS DISTRIBUTOR, INC.
THIS UNDERWRITING AGREEMENT ("Agreement"), is hereby made by and between
Columbia Acorn Trust, a business trust organized and existing under the laws of
the Commonwealth of Massachusetts (hereinafter called the "Fund"), and Columbia
Funds Distributor, Inc., a corporation organized and existing under the laws of
the Commonwealth of Massachusetts (hereinafter called the "Distributor"). The
agreement between Columbia Management Group, Inc. and the Fund dated February
28, 2005, effective as of October 1, 2004, to the extent applicable to the
Distributor, is incorporated herein by reference.
WITNESSETH:
WHEREAS, the Fund is engaged in business as an open-end management
investment company registered under the Investment Company Act of 1940, as
amended ("ICA-40"); and
WHEREAS, the Distributor is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended ("SEA-34") and the laws of each
state (including the District of Columbia and Puerto Rico) in which it engages
in business to the extent such law requires, and is a member of the National
Association of Securities Dealers ("NASD") and the Securities Investor
Protection Corporation (such registrations and membership are referred to
collectively as the "Registrations"); and
WHEREAS, the Fund desires the Distributor to act as the distributor in the
public offering of its shares of beneficial interest (hereinafter called
"Shares");
WHEREAS, the Fund shall pay all charges of its transfer, shareholder
recordkeeping, dividend disbursing and redemption agents, if any; all expenses
of notices, proxy solicitation material and reports to shareholders; all
expenses of preparation of annual or more frequent revisions of the Fund's
Prospectus(es) and Statement(s) of Additional Information ("SAIs") and of
supplying copies thereof to shareholders; all expenses of registering and
maintaining the registration of the Fund under ICA-40 and of the Fund's Shares
under the Securities Act of 1933, as amended ("SA-33"); all expenses of filing
notices relating to the sale of its Shares under securities laws of various
states or other jurisdictions and of registration and qualification of the Fund
under all laws applicable to the Fund or its business activities; and
WHEREAS, Columbia Xxxxxx Asset Management, L.P. ("CWAM"), investment
adviser to the Fund, or its affiliates, may pay expenses incurred in the sale
and promotion of the Fund except as provided in the Fund's l2b-1 plan;
NOW, THEREFORE, in consideration of the premises and the mutual promises
hereinafter set forth, the parties hereto agree as follows:
1. APPOINTMENT. The Fund appoints Distributor to act as principal
underwriter (as such term is defined in Sections 2(a)(29) of ICA-40) of its
Shares for each series or class of the Fund set forth on Schedule A hereto.
2. DELIVERY OF FUND DOCUMENTS. The Fund has furnished Distributor with
properly certified or authenticated copies of each of the following in effect on
the date hereof and shall furnish Distributor from time to time properly
certified or authenticated copies of all amendments or supplements thereto:
(a) Agreement and Declaration of Trust;
(b) Bylaws;
(c) Resolutions of the Board of Trustees of the Fund (hereinafter referred
to as the "Board") selecting Distributor as distributor and approving
this form of agreement and authorizing its execution.
The Fund shall furnish Distributor promptly with copies of any registration
statements filed by it with the Securities and Exchange Commission ("SEC") under
SA-33 or ICA-40, together with any financial statements and exhibits included
therein, and all amendments or supplements thereto hereafter filed.
The Fund also shall furnish Distributor such other certificates or
documents which Distributor may from time to time, in its discretion, reasonably
deem necessary or appropriate in the proper performance of its duties.
3. DISTRIBUTION OF SHARES.
(a) Subject to the provisions of Paragraphs 6, 7, 10, 11, 12, 13 and 14
hereof, and to such minimum purchase and other requirements as may
from time to time be described in the Fund's Prospectus(es),
Distributor, acting as principal for its own account and not as agent
for the Fund, shall have the right to purchase Shares from the Fund.
Distributor shall sell Shares only in accordance with the Fund's
Prospectus(es), on a "best efforts" basis. Distributor shall purchase
Shares from the Fund at a price equal to the net asset value, shall
sell Shares at the public offering price as defined in Paragraph 8,
and shall retain all sales charges.
(b) The Fund shall pay all expenses associated with notices, proxy
solicitation material, the preparation of annual or more frequent
revisions to the Fund's Prospectus(es) and SAI(s) and of printing and
supplying the currently effective Prospectus(es) and SAI(s) to
shareholders, other than those necessitated by Distributor's
activities or rules and regulations related to Distributor's
activities where such amendments or supplements result in expenses
which the Fund would not otherwise have incurred.
(c) The Distributor (or its affiliates) shall pay the costs of printing
and supplying all copies of the Prospectus(es) and SAI(s) that it may
reasonably request for use in connection with the distribution of
Shares. The Distributor will also pay the
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expenses of the preparation, excluding legal fees, and printing of all
amendments and supplements to the Fund's Prospectus(es) and SAI(s) if
the amendment or supplement arises from Distributor's activities or
rules and regulations related to Distributor's activities and those
expenses would not otherwise have been incurred by the Fund.
Distributor will pay all expenses incurred by Distributor in
advertising, promoting and selling Fund Shares.
(d) Prior to the continuous offering of any Shares of any series of the
Fund established during the term of this Agreement, commencing on a
date agreed upon by the Fund and the Distributor, the Distributor may
solicit subscriptions for such Shares during a subscription period
which shall last for such period as may be agreed upon by the parties
hereto. The subscriptions will be payable within three business days
after the termination of the subscription period, at which time that
series of the Fund will commence operations.
4. SELLING AGREEMENTS. Distributor is authorized to enter into agreements
with other broker-dealers providing for the solicitation of unconditional orders
for purchases of the Fund's Shares authorized for issuance and registered under
SA-33 and fix therein the portion of the sales charge which may be reallowed to
the selected dealers, as permitted under that Fund's Prospectus(es). All such
agreements shall be either in the form of agreement attached hereto as Appendix
A or in such other form as may be approved by the President or Chief Compliance
Officer of the Fund ("Selling Agreement"). Within the United States, the
Distributor shall offer and sell Shares to such selected dealers as are members
in good standing of the NASD; "banks" as such term is defined in Section 3(a)(6)
of the Exchange Act or a "bank holding company" as such term is defined in the
Bank Holding Company Act of 1956, as amended, duly organized, validly existing
and in good standing under the laws of the jurisdiction in which it was
organized; and such other entities or purchasers as the parties hereto otherwise
mutually agree in writing.
5. CONDUCT OF BUSINESS. Other than as set forth in the Fund's currently
effective Prospectus(es), Distributor will not distribute any sales material or
statements except literature or advertising which conforms to the requirements
of federal and state securities laws and regulations which have been filed,
where necessary, with the appropriate regulatory authorities. Upon any Fund's
request, Distributor will furnish the Fund with copies of all such materials
prior to their use. Any sales material or statements the substance of which is
not included in the Prospectus(es) or SAI(s) shall be submitted for advance
approval by the Fund.
6. SOLICITATION OF ORDERS TO PURCHASE SHARES BY FUND. The rights granted to
the Distributor shall be non-exclusive in that the Fund reserves the right to
solicit purchases from, and sell its Shares to, investors. Further, the Fund
reserves the right to issue Shares in connection with the merger or
consolidation of any other investment company, trust or personal holding company
with the Fund or any series of the Fund, or the Fund's acquisition, by the
purchase or otherwise, of all or substantially all of the assets of an
investment company, trust or personal holding company, or substantially all of
the outstanding shares or interests of any such entity. Any right granted to
Distributor to solicit purchases of shares will not apply to Shares that may be
offered by any Fund to shareholders by virtue of their being shareholders of the
Fund.
3
7. SHARES COVERED BY THIS AGREEMENT. This Agreement relates to the
solicitation of orders to purchase Shares that are duly authorized and
registered and available for sale by the Fund, including redeemed or repurchased
Shares if and to the extent that they may be legally sold and if, but only if, a
Fund authorizes the Distributor to sell them.
8. PUBLIC OFFERING PRICE. The public offering price for the Fund's Shares
will be the net asset value per Share next determined by the Fund after the
Distributor or its appointed agent receives the order plus any sales charge as
set forth in the Fund's applicable Prospectus(es). The net asset value per Share
shall be determined in the manner provided in the Fund's Agreement and
Declaration of Trust as now in effect or as may be amended, and as reflected in
the Fund's then current Prospectus(es) and SAI(s).
9. COMPENSATION.
(a) SALES CHARGE. Distributor shall be entitled to charge a sales charge on the
sale or redemption, as appropriate, of such series and classes of the Fund's
Shares as set forth in the Fund's then current Prospectus(es). Distributor may
allow any dealers with which it has signed selling agreements such commissions
or discounts from and not exceeding the total sales charge as Distributor shall
deem advisable, so long as any such commissions or discounts are set forth in
the Fund's current Prospectus(es) to the extent required by the applicable
federal and state securities laws. Distributor may also make payments to dealers
from Distributor's own resources, subject to the following conditions: (a) any
such payments shall not create any obligation for or recourse against the Fund
or any series or class, and (b) the terms and conditions of any such payments
are consistent with the Fund's Prospectus(es) and applicable federal and state
securities laws and are disclosed in the Prospectus(es) or SAI(s) to the extent
such laws may require. Distributor shall report to the Fund's CCO on a periodic
basis all such arrangements, and the terms and conditions of the same.
(b) DISTRIBUTION PLANS. Distributor shall also be entitled to compensation
for its services as provided in any Distribution Plan adopted as to
any series and class of the Fund's Shares pursuant to Rule 12b-1 under
the 1940 Act.
10. SUSPENSION OF SALES. If and whenever the determination of the Fund's
net asset value is suspended and until such suspension is terminated, the
Distributor shall not accept orders for Shares except for unconditional orders
placed before the suspension. In addition, the Fund reserves the right to
suspend sales of Shares if, in the judgment of the Board of the Fund, it is in
the best interest of the Fund to do so, such suspension to continue for such
period as may be determined by the Board of the Fund; and in that event, (i) at
the direction of the Fund, Distributor shall suspend receipt and acceptance of
orders to purchase Shares of the Fund until otherwise instructed by the Fund and
(ii) the Distributor shall not accept orders to purchase Shares while such
suspension remains in effect unless otherwise directed by the Board.
11. ORDERS AND PAYMENT FOR SHARES.
(a) Distributor shall direct orders for the purchase of Shares of any
series to the Fund's transfer agent. At or prior to the time of
delivery of any Shares, the Distributor will pay or cause to be paid
to the custodian of the Fund's assets, for
4
the account of such series, an amount in cash equal to the purchase
price of such Shares. The Fund's custodian and transfer agent shall be
identified in its Prospectus(es).
(b) The Fund, or any agent of the Fund designated in writing by the Fund,
shall be promptly advised of all purchase orders for Fund Shares
received by the Distributor. Any order may be rejected by the Fund;
provided, however, that the Fund will not arbitrarily or without
reasonable cause refuse to accept or confirm orders for the purchase
of Fund Shares from eligible investors. The Fund specifically reserves
the right to reject orders pursuant to its frequent trading policies
and procedures.
(c) The Distributor represents and warrants that it has adopted and
implemented, or has caused to be adopted and implemented, controls
reasonably designed to ensure that all orders it directly receives
from shareholders after the close of regular session trading on the
New York Stock Exchange (the "Exchange") on a particular business day
will not be aggregated with orders received by the Distributor before
the close of regular session trading on the Exchange on such business
day. In addition, the Distributor represents and warrants that it has
adopted policies and procedures to require broker-dealers to represent
and warrant that they have implemented controls reasonably designed to
ensure that all orders received by them after the close of regular
session trading on the Exchange on a particular business day will not
be transmitted as an order to be executed on such business day.
12. REPURCHASE OR REDEMPTION OF SHARES BY THE FUND.
(a) Any of the outstanding Fund Shares may be tendered to the transfer
agent for redemption at any time, other than when the Fund suspends
redemptions as permitted by its Prospectus(es) or applicable law, and
the Fund agrees to repurchase or redeem the Shares so tendered in
accordance with its obligations as set forth in its Agreement and
Declaration of Trust, as amended from time to time, and in accordance
with the applicable provisions set forth in the Prospectus(es) and
SAI(s). The price to be paid to redeem or repurchase the Shares shall
be equal to the net asset value calculated in accordance with the
provisions of the Fund's Prospectus(es) and SAI(s), less any
contingent deferred sales charge ("CDSC"), redemption fee or other
charge(s), if any, set forth in the Prospectus(es) or SAI(s) of the
Fund relating to the Shares redeemed. All payments by the Fund
hereunder shall be made in the manner set forth below.
(b) If Shares are tendered to the transfer agent for redemption or
repurchase by the Fund within seven business days after Distributor's
acceptance of the original purchase order for such Shares, Distributor
will immediately refund to the Fund the full sales commission (net of
allowances to dealers or brokers) allowed to Distributor on the
original sale, and will promptly, upon receipt thereof, pay to the
Fund any refunds from dealers or brokers of the balance of sales
commissions reallowed by Distributor. The transfer agent shall notify
Distributor of such
5
tender for redemption within ten days of the day on which notice of
such tender for redemption is received by the transfer agent.
(c) The transfer agent shall pay the total amount of the redemption price
as defined in the above paragraph 12(a), pursuant to the instructions
of the Distributor in Federal Funds on or before the seventh business
day subsequent to its having received the notice of redemption in
proper form except as otherwise provided in the Prospectus(es) or
SAI(s) of the Fund. The proceeds of any redemption of Shares shall be
paid by the transfer agent as follows: (i) any applicable CDSC shall
be paid to the Distributor, and (ii) the balance shall be paid to or
for the account of the shareholder, in each case in accordance with
the applicable provision of the Prospectus(es) and SAI(s).
13. PURCHASES FOR DISTRIBUTOR'S OWN ACCOUNT. Distributor may purchase
Shares for its own investment account upon Distributor's written assurance that
the purchase is for investment purposes and that the Shares will not be resold
except through redemption by the Fund.
14. INVESTMENT PROGRAMS. In connection with any program under which CWAM or
one of its affiliates offers investment advice to shareholders, the Distributor
is authorized to offer and sell Shares of the Fund, as principal, to
participants in such program. The terms of this Agreement shall apply to such
sales, including terms as to the offering price of Shares, the proceeds to be
paid to the Fund, the duties of the Distributor, the payment of expenses and
indemnification obligations of the Fund and the Distributor.
15. AUTHORIZED REPRESENTATIONS. No Fund is authorized by the Distributor to
give on behalf of the Distributor any information or to make any representations
other than the information and representations contained in the Fund's
registration statement filed with the SEC under SA-33 and/or ICA-40 as it may be
amended from time to time.
16. REGISTRATION OF ADDITIONAL SHARES. The Fund hereby agrees to register
an indefinite number of Shares pursuant to Rule 24f-2 under ICA-40, as amended.
The Fund will, in cooperation with the Distributor, take such action as may be
necessary from time to time to file in any state mutually agreeable to the
Distributor and the Fund, any notices relating to the sale of the Shares (so
registered or otherwise qualified for sale under SA-33) required by applicable
state law or regulation; provided, however, that nothing herein shall be deemed
to prevent the Fund from filing notices relating to its Shares without approval
of the Distributor in any state it deems appropriate.
17. CONFORMITY WITH LAW. Distributor agrees that in soliciting orders to
purchase Shares it shall duly conform in all respects with applicable federal
and state laws and the rules and regulations of all applicable self-regulatory
organizations, including the NASD. Distributor will use its best efforts to
maintain its Registrations in good standing during the term of this Agreement
and will promptly notify the Fund and CWAM in the event of the suspension or
termination of any of the Registrations. The Distributor will observe and be
bound by all the provisions of the Fund's Agreement and Declaration of Trust
(and of any fundamental policies adopted by the Fund pursuant to ICA-40, written
notice of which shall have been given to the
6
Distributor) which at the time in any way require, limit, restrict or prohibit
or otherwise regulate any action on the part of the Distributor.
18. COMPLIANCE. Distributor represents that it has systems, procedures
and/or policies in place designed to ensure that it is complying with all terms
of this Agreement, the Prospectus requirements and all relevant rules and
regulations, as applicable to the Distributor, regarding the handling of mutual
fund orders on a timely basis.
19. INDEPENDENT CONTRACTOR. Distributor shall be an independent contractor
and neither the Distributor, nor any of its officers, directors, employees, or
representatives is or shall be an employee of the Fund in the performance of
Distributor's duties hereunder. Distributor shall be responsible for its own
conduct and the employment, control, and conduct of its agents and employees and
for injury to such agents or employees or to others through its agents and
employees and agrees to pay all employee taxes thereunder. Distributor may
appoint sub-agents or distribute through dealers or otherwise as Distributor may
determine from time to time, but this Agreement shall not be construed as
authorizing any dealer or other person to accept orders for sale or repurchase
on the Fund's behalf or otherwise act as the Fund's agent for any purpose.
20. INDEMNIFICATION. Distributor agrees to indemnify and hold harmless the
Fund and each of the members of its Board and its officers, employees and
representatives and each person, if any, who controls the Fund within the
meaning of Section 15 of SA-33 against any and all losses, liabilities, damages,
claims and expenses (including the reasonable costs of investigating or
defending any alleged loss, liability, damage, claim or expense and reasonable
legal counsel fees incurred in connection therewith) to which the Fund or such
of the members of its Board and of its officers, employees, representatives, or
controlling person or persons may become subject under SA-33, under any other
statute, at common law, or otherwise, arising out of or based upon (i) any
violation of an applicable law, rule or regulation or wrongful act by
Distributor or any of Distributor's directors, officers, employees or
representatives, or (ii) any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, Prospectus, SAI,
shareholder report or other information covering Shares of the Fund filed or
made public by the Fund or any amendment thereof or supplement thereto or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading if
such statement or omission was made in reliance upon information furnished to
the Fund by Distributor in writing. In no case (i) is Distributor's indemnity in
favor of the Fund, or any person indemnified, to be deemed to protect the Fund
or such indemnified person against any liability to which the Fund or such
person would otherwise be subject by reason of willful misfeasance, bad faith,
or negligence in the performance of its or his duties or by reason of its or his
reckless disregard of its or his obligations and duties under this Agreement or
(ii) is Distributor to be liable under its indemnity agreement contained in this
paragraph with respect to any claim made against the Fund or any person
indemnified unless the Fund or such person, as the case may be, shall have
notified Distributor in writing of the claim within a reasonable time after the
summons, or other first written notification, giving information of the nature
of the claim served upon the Fund or upon such person (or after the Fund or such
person shall have received notice of such service on any designated agent).
However, failure to notify Distributor of any such claim shall not relieve
Distributor from any liability which Distributor may have to the Fund or any
person against
7
whom such action is brought otherwise than on account of Distributor's indemnity
agreement contained in this Paragraph.
Distributor shall be entitled to participate, at its own expense, in the
defense, or, if Distributor so elects, to assume the defense of any suit brought
to enforce any such claim but, if Distributor elects to assume the defense, such
defense shall be conducted by legal counsel chosen by Distributor and
satisfactory to the persons indemnified who are defendants in the suit. In the
event that Distributor elects to assume the defense of any such suit and retain
such legal counsel, persons indemnified who are defendants in the suit shall
bear the fees and expenses of any additional legal counsel retained by them. If
Distributor does not elect to assume the defense of any such suit, Distributor
will reimburse persons indemnified who are defendants in such suit for the
reasonable fees of any legal counsel retained by them in such litigation.
The Fund agrees to indemnify and hold harmless Distributor and each of its
directors, officers, employees, and representatives and each person, if any, who
controls Distributor within the meaning of Section 15 of SA-33 against any and
all losses, liabilities, damages, claims or expenses (including the damage,
claim or expense and reasonable legal counsel fees incurred in connection
therewith) to which Distributor or such of its directors, officers, employees,
representatives or controlling person or persons may become subject under SA-33,
under any other statute, at common law, or otherwise arising out of or based
upon (i) any violation of applicable law, rule or regulation or wrongful act by
the Fund or any of the members of the Fund's Board, or the Fund's officers,
employees or representatives other than Distributor, or (ii) any untrue
statement or alleged untrue statement of a material fact contained in a
registration statement, Prospectus, SAI, shareholder report or other information
covering Shares filed or made public by the Fund or any amendment thereof or
supplement thereto, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading unless such statement or omission was made in reliance
upon information furnished by Distributor to the Fund. In no case (i) is the
Fund's indemnity in favor of the Distributor or any person indemnified to be
deemed to protect the Distributor or such indemnified person against any
liability to which Distributor or such indemnified person would otherwise be
subject by reason of willful misfeasance, bad faith, or negligence in the
performance of its or his duties or by reason of its or his reckless disregard
of its or his obligations and duties under this Agreement, or (ii) is the Fund
to be liable under its indemnity agreement contained in this Paragraph with
respect to any claim made against Distributor or any person indemnified unless
Distributor, or such person, as the case may be, shall have notified the Fund in
writing of the claim within a reasonable time after the summons, or other first
written notification, giving information of the nature of the claim served upon
Distributor or upon such person (or after Distributor or such person shall have
received notice of such service on any designated agent). However, failure to
notify the Fund of any such claim shall not relieve the Fund from any liability
which the Fund may have to Distributor or any person against whom such action is
brought otherwise than on account of the Fund's indemnity agreement contained in
this Paragraph.
With respect to any claim by the Distributor for recovery of any liability
of the Fund arising hereunder allocated to a particular series of the Fund if
there be more than one (whether in accordance with the express terms hereof or
otherwise), the Distributor shall have recourse
8
solely against the assets of that series to satisfy such claim and shall have no
recourse against the assets of any other series for such purpose.
The Fund shall be entitled to participate, at its own expense, in the
defense or, if the Fund so elects, to assume the defense of any suit brought to
enforce such claim but, if the Fund elects to assume the defense, such defense
shall be conducted by legal counsel chosen by the Fund and satisfactory to the
persons indemnified who are defendants in the suit. In the event that the Fund
elects to assume the defense of any such suit and retain such legal counsel, the
persons indemnified who are defendants in the suit shall bear the fees and
expenses of any additional legal counsel retained by them. If the Fund does not
elect to assume the defense of any such suit, the Fund will reimburse the
persons indemnified who are defendants in such suit for the reasonable fees and
expenses of any legal counsel retained by them in such litigation.
21. DURATION AND TERMINATION OF THIS AGREEMENT. With respect to the Fund
and the Distributor, this Agreement shall become effective on October 1, 2004.
After this Agreement shall become effective, unless terminated as provided
herein, it shall remain in effect through July 31, 2005 and from year to year
thereafter, but only so long as such continuance is specifically approved at
least annually (a) by a vote of majority of the members of the Board of the Fund
who are not interested persons of the Distributor or of the Fund, voting in
person at a meeting called for the purpose of voting on such approval, and (b)
by the vote of either the Board of the Fund or a majority of the outstanding
Shares of the Fund. This Agreement may be terminated by and between the Fund and
Distributor at any time, without the payment of any penalty (a) on 60 days'
written notice, by the Board of the Fund or by a vote of a majority of the
outstanding Shares of the Fund, or by Distributor, or (b) immediately, on
written notice by the Board of the Fund, in the event of termination or
suspension of any of the Registrations. This Agreement will automatically
terminate in the event of its assignment. In interpreting the provisions of this
Paragraph 20 the definitions contained in Section 2(a) of ICA-40 (particularly
the definitions of "interested person", "assignment", and "majority of the
outstanding Shares") shall be applied.
22. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement may be
changed, waived, discharged, or terminated orally, but only by an instrument in
writing signed by each party against which enforcement of the change, waiver,
discharge, or termination is sought. If the Fund should at any time deem it
necessary or advisable in the best interests of the Fund that any amendment of
this Agreement be made in order to comply with the recommendations or
requirements of the SEC or any other governmental authority or to obtain any
advantage under state or Federal tax laws and notifies Distributor of the form
of such amendment, and the reasons therefor, and if Distributor should decline
to assent to such amendment, the Fund may terminate this Agreement forthwith. In
addition, if the Fund should at any time request that a change be made in the
Distributor's methods of doing business, in order to comply with any
requirements of Federal law or regulations of the SEC, or of a national
securities association of which Distributor is or may be member, and the
Distributor should not make such necessary changes within a reasonable time, the
Fund may terminate this Agreement forthwith. If Distributor should at any time
request that a change be made in the Fund's Agreement and Declaration of Trust
or by-laws or in its methods of doing business, in order to comply with any
requirements of Federal law or regulations of the SEC, or of a national
securities association of which Distributor is or may be a member, relating to
the sale of Shares,
9
and the Fund should not make such necessary changes within a reasonable time,
Distributor may terminate this Agreement forthwith.
23. LIABILITY. It is understood and expressly stipulated that neither the
shareholders of the Fund nor the members of the Board of the Fund shall be
personally liable hereunder. The obligations of the Fund are not personally
binding upon, nor shall resort to the private property of, any of the members of
the Board of the Fund, nor of the shareholders, officers, employees or agents of
the Fund, but only the property of the applicable series of the Fund shall be
bound. A copy of the Declaration of Trust and of each amendment thereto has been
filed by the Trust with the Secretary of State of The Commonwealth of
Massachusetts, as well as any other governmental office where such filing may
from time to time be required.
24. MISCELLANEOUS. The captions in this Agreement are included for
convenience or reference only, and in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
25. NOTICE. Any notice required or permitted to be given by a party to this
Agreement or to any other party hereunder shall be deemed sufficient if
delivered in person or sent by registered or certified mail postage prepaid,
addressed by the party giving notice to each such other party at the address
provided below or to the last address furnished by each such other party to the
party giving notice.
If to the Fund: 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx Xxxxxx, General Counsel, Vice
President and Chief Compliance Officer
If to Distributor: Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: General Counsel
Columbia Management Group, Inc.
10
COLUMBIA FUNDS DISTRIBUTOR, INC.
By:
------------------------------
Co-President
ATTEST:
COLUMBIA ACORN TRUST
By:
------------------------------
Vice President
ATTEST:
Assistant Secretary
11
Schedule A to Underwriting Agreement
Between Columbia Acorn Trust and
Columbia Funds Distributor, Inc.
The series of the Trust covered by this agreement are:
Columbia Acorn Fund
Columbia Acorn International
Columbia Acorn USA
Columbia Acorn Select
Columbia Acorn International Select
Columbia Thermostat Fund
Dated as of October 1, 2004.
A-1
APPENDIX A
COLUMBIA FUNDS
SELLING AGREEMENT
Ladles and Gentlemen:
We are the exclusive distributor of the shares of the portfolios of the Columbia
Family of Funds (the "Columbia Funds"), listed on Schedule A (as may be updated
from time to time). We invite you to participate in the sale of the shares of
those Columbia Funds (or classes of shares of those Columbia Funds) as we may
determine (each a "Fund" and collectively the "Funds") on the terms set forth
below.
1. YOUR REGULATORY STATUS: Your Regulatory Statute: If you are a registered
broker or dealer under the Securities Exchange Act of 1934 ("1034 Act"), you
agree that the terms In Schedule I apply. Otherwise, you agree that the terms in
Schedule 2 apply.
2. APPOINTMENT: We appoint you to provide the services set forth in this
Agreement on a non-exclusive basis, subject to and in compliance with all terms
of this Agreement, the Funds' then-current prospectuses and statements of
additional information including any supplements thereto (collectively, the
'Prospectus"), the Funds' new account application, applicable laws and
regulations and such procedures and Instructions as we may communicate to you.
3. OFFER AND SALE OF FUND SHARES:
(a) You agree to offer and sell the Funds' shares, but to do so only in
the states and other jurisdictions in which we have indicated that
such offers and sales can be made and only in U.S. states, territories
or possessions. You may act either as principal or as agent of your
customers ("Customers") who purchase Fund shares through you. In
connection with your offers and sales of Fund shares, you agree that
we have no responsibility for determining whether the Funds' shares
are suitable for your Customers. You agree never to make any statement
or representation in connection with us, our affiliates or the Funds
other than that as contained In the Prospectus, shareholder reports
and sales literature issued by us ("Sales Literature") or as otherwise
approved in writing by us.
(b) If you sell shares for which a distribution plan has been adopted
pursuant to Rule 12b-1 under the Investment Company Act of 1940 ("1940
Act"), you agree to provide reasonable sales support assistance,
including forwarding Sales Literature to your Customers and providing
other sales support assistance as we may request. You shall perform
all support services In a professional, competent and timely manner.
(c) We shall furnish you upon request with a reasonable quantity of copies
of the Sales Literature. If we supply you with copies of any Fund
prospectus or statement of additional information supplements, you
agree to affix copies of the supplements as appropriate and distribute
only appropriately supplemented prospectuses or statements of
additional Information. You agree not to use Sales Literature with
your Customers unless accompanied or preceded by the Prospectus. You
agree not to amend or translate any
Sales Literature. You agree that any supplemental sales literature we
provide you regarding hypothetical investments may be used only in
one-on-one presentations.
(d) You shall submit any sales literature or materials or advertising you
prepare regarding the Funds to us for our prior approval. We may
withdraw our approval of any such materials upon notice. You shell
then immediately discontinue using those materials. You are
responsible for ensuring that any such materials are prepared and
distributed in accordance with applicable law and regulation,
including any filing obligations.
4. PURCHASE, REDEMPTION AND EXCHANGE OF FUND SHARES:
(a) You agree: (i) to offer and sell each class of each Fund's shares at
the applicable public offering price; (ii) that redemptions of shares
will be made at the net asset value of such shares, less any
applicable deferred sales or redemption charges; and (iii) that
exchanges of shares will be made at the net asset value of such
shares, less any applicable sales charges and/or redemption fees, all
as provided in the Prospectus.
(b) All purchase and exchange orders are subject to acceptance and
confirmation by us, the Funds and their transfer agent (the 'Transfer
Agent"). You agree to date and time stamp all orders you receive and
to forward all orders to us via the Transfer Agent in time for
processing at the next-determined share price after your receipt.
(c) You agree that you have systems, procedures and/or policies in place
designed to ensure that you are complying with all terms of this
Agreement, the Prospectus requirements and all relevant rules and
regulations regarding the handling of mutual fund orders on a timely
basis.
(d) You may not make any conditional or contingent orders for any Fund's
shares. We may in our sole discretion reject any purchase order in
whole or in part. We also may in our discretion suspend sales or
withdraw the offering of shares, in whole or part, without notice to
you.
(e) If you place a purchase order and payment for shares is not received
or made within the time set forth in the Prospectus, the sale may be
canceled without any responsibility or liability on the part of us,
the Funds or the Transfer Agent. We shall have no liability for any
check or other item returned unpaid to you after you have paid us on
behalf of a Customer.
(f) If you place a redemption order and the Transfer Agent does not
receive instructions in proper form, including any outstanding
certificates, within the time set forth in the Prospectus, the
redemption may be canceled without any responsibility or liability on
the part of us, the Funds or the Transfer Agent. We may refuse to
liquidate an investment or part of an investment unless we receive
your Customer's signed authorization of the liquidation.
(g) You agree that if a Customer's Fund shares are redeemed within seven
business days after the confirmation of the original order, you will
refund the full concession allowed. The provisions of this sub-Section
shall survive the termination of this Agreement.
(h) You agree to be responsible to the Funds, the Transfer Agent and us
for any losses, claims, damages or expenses resulting from your: (i)
failure to make. any payment for or settle any redemption of Fund
shares pursuant to this Agreement or (ii) correction or cancellation
of any order after Its trade date. You will immediately pay such loss,
claim, damage or expense to us, the Transfer Agent or the Funds, as
appropriate, upon notification.
(i) The Fund normally will not issue share certificates.
(j) You further agree:
(i) to purchase shares only to cover purchase orders you already have
received;
(ii) to maintain records of all transactions in Fund shares made
through you and to furnish us with copies on request;
(iii) not to withhold placing Customers' orders for shares so as to
profit as a result of such withholding;
(iv) not to place orders for Fund shares in amounts just below the
point at which sales charges are reduced so as to benefit from a
higher sales charge applicable to the amount below the
breakpoint; and
(v) to purchase Fund shares only through us.
(j) You agree to cooperate with all requests by the Funds or its designee
with respect to discouraging, monitoring and terminating patterns of
trading that the Funds deem disruptive. You agree to comply with any
restrictions and limitations on purchases, redemptions and exchanges
described in the Prospectus, including any restrictions or
prohibitions relating to frequent purchases and redemptions (i.e.,
market timing). If it should come to your attention that any Customers
are engaging in a pattern of purchases, redemptions end/or exchanges
of shares that appears to evidence market timing, you shall promptly
notify us and the Funds In writing of such pattern and shall cooperate
fully with us and the Funds in any investigation and, if deemed
necessary or appropriate by us or the Funds, terminate any such
pattern of trading, including, without limitation, by refusing such
Customer's orders to purchase or exchange shares.
5. COMPENSATION:
(a) The total sales charges and your dealer concessions (if any) on each
purchase of Fund shares shall be as stated in the Prospectus, subject
to National Association Securities Dealers ('NASD') rules and
applicable laws and regulations. You must notify us via the Transfer
Agent that an order qualifies for a reduction in sales charge at the
time of the order placement in order for the Customer to obtain the
reduction. If you fail to so notify, neither we, the Transfer Agent
nor any of the Funds will be liable for reimbursing the Customer for
the reduction that should have been effected. You agree to use your
best efforts to ensure that every Customer receives the benefit of any
appropriate reduction In
sales charge as described in the Prospectus. There is no sales charge
or discount on reinvested dividends.
(b) As compensation for the sales support assistance described in
sub-Section 3(b), we also may arrange for you to be paid a periodic
fee based upon a percentage of the average daily net asset value of
the respective Fund's shares attributable to you. We will inform you
of the amount of the fee (if any) and may arrange for the fee payable
to be changed upon prior notice. Our liability to you for the payment
of a distribution or service fee related to a Fund for any period is
limited solely to the proceeds of that Fund's distribution or service
fee actually received by us for such period. We may stop paying
distribution and service fees for any Fund at any time without notice
to you. Each Fund reserves the right to establish and change minimum
asset amounts at the representative level and dealer level as
conditions for its obligations to pay service fees.
(c) You may not charge service fees to your Customers for processing
exchange or redemption orders, unless you appropriately disclose the
fees to your Customers and that such fees do not constitute sales
loads as defined in Section 2(035) of the 1940 Act.
6. COMPLIANCE WITH LAW:
(a) You agree to comply with all applicable laws, rules and regulations
and the rules of all applicable self-regulatory organizations and, if
applicable, the National Securities Clearing Corporation ("NSCC"). You
shall have eels responsibility for the qualification or status of
persons selling Fund shares on your behalf and the manner of sale of
Fund shares by you.
(b) You agree to cooperate fully with any and all efforts by us or the
Funds to assure ourselves that you have implemented effective
compliance policies and procedures administered by competent personnel
including, without limitation:
(i) permitting us and the Funds to become familiar with your
operations and understand those aspects of your operations that
expose us or the Funds to compliance risks;
(ii) permitting us and the Funds to maintain an active working
relationship with your compliance personnel;
(iii) providing us and the Funds with periodic and special reports in
the event of compliance problems;
(iv) providing us and the Funds with such certifications as we may
require on a periodic or special basis; and
(v) making your personnel and applicable policies and procedures
available to such audit personnel as we or the Funds may
designate to audit the effectiveness of your compliance controls.
7. CUSTOMER INSTRUCTIONS:
(a) You represent and warrant that you have full authority to act on
behalf of each Customer and will act only in accordance with the scope
of your authority when acting on behalf of the Customer.
(b) If a Customer's account with a Fund is established without the
Customer signing an account application, you represent and warrant
that the instructions relating to account establishment and
shareholder options (whether on the account application, in another
document or orally) are in accordance with the Customer's
instructions.
(c) You agree to provide all necessary information for us and the Funds to
comply properly with all federal, state and local reporting
requirements for your Customer accounts. You represent and warrant
that all Taxpayer Identification Numbers ("TINS") you provide are
certified and that you will not establish an account without a
certified TIN.
(d) You agree to be responsible to the Funds, the Transfer Agent and us
for any losses. claims, damages or expenses resulting from acting upon
such authority, instructions and performance.
8. SHAREHOLDER INFORMATION: If you hold Fund shares in record name or as
nominee for your Customers, all Prospectuses, proxy statements, shareholder
reports, and other printed material will be sent to you, and any confirmations
and other communications to shareholders will be transmitted to you. You will be
responsible for forwarding such printed material, confirmations, and
communications, or the Information contained therein, to all Customers for whose
account you hold Fund shares_ You agree that we, the Funds and the Transfer
Agent may mall or otherwise distribute to Fund shareholders any material
concerning the Funds or other funds or services.
9. NATURE OF RELATIONSHIP: You have no authority to act as agent for,
partner of, or participant in, a Joint venture with the Funds or us or any of
our affiliates. Nothing in this Agreement shall constitute either of us the
agent of the other or you or the Funds the agent of each other, except that you
shall be deemed an agent of the Funds for the sole and limited purpose of
receiving orders for Fund shares pursuant to sub-Section 4(b). to the extent
that such an agency relationship Is required by applicable law and regulation.
10. PROTECTION AGAINST UNAUTHROIZED USE OF RECORDKEEPING SYSTEMS: You agree
to provide such security as is necessary to prevent any unauthorized use of the
Funds' recordkeeping system, accessed via any computer hardware or software
provided to you by us or the Transfer Agent.
11. REPORT: Upon request, you agree to report to us in writing at least
quarterly on the amounts you spend in connection with providing services
pursuant to Section 3 and their purposes. You also agree to cooperate with us in
our reporting to the Board of Trustees of Columbia Funds or regulators
concerning this Agreement and the amounts you spend.
12. DISCLOSURES TO SHAREHOLDERS: You agree and warrant to disclose your
compensation under this Agreement, together with any other compensation you
receive in connection with your
Customers' investments in Fund shares, to your Customers as required by
applicable laws and regulations and to the extent necessary to ensure that your
Customers fully understand all such compensation and any conflicts of interest
related to your receipt of such compensation. You also agree and warrant that
your Customers will authorize your compensation and that your compensation will
not be excessive or unreasonable.
13. PRIVACY:
(a) "Confidential Information" means this Agreement and all proprietary
information, data. trade secrets, business information and other
Information of any kind which (a) a party ("Discloser) discloses to
the other party ("Recipient") or to which Recipient obtains access In
connection with this Agreement and (b) relates to (i) the Discloser,
(ii) In your case, us, the Funds, the Transfer Agent or our
affiliates, or (iii) third-party suppliers or licensors who have made
confidential or proprietary Information available. Confidential
Information includes Customer and account information.
(b) The Recipient shall not disclose or use Confidential Information other
than in the course of ordinary business to carry out the purpose for
which the Confidential Information was provided to the Recipient. The
Recipient also shall not disclose Customer Information on other than a
'need to know" basis and then only to: (i) Recipient's employees or
officers; (ii) affiliates of Recipient provided they shall be
restricted in use and redisclosure to the same extent as Recipient; or
(iii) carefully selected subcontractors that have entered Into
confidentiality agreements no less restrictive than the terms of this
Agreement; or pursuant to the exceptions set forth in 15 USC 6802(e)
and accompanying regulations. Prior to any disclosure of Confidential
Information as required by law, the Recipient shall (i) notify the
Discloser of any actual or threatened legal compulsion of disclosure
and any actual legal obligation of disclosure immediately upon
becoming so obligated, and (ii) cooperate with the Discloser's
reasonable, lawful efforts to resist. limit or delay disclosure.
Nothing in this Section shall require any notice or other action by us
or our affiliates in connection with requests or demands for
Confidential Information by applicable regulators. The restrictions
set forth herein shall survive the termination of this Agreement.
(c) These confidentiality obligations do not apply to information which:
Recipient already rightfully possesses when disclosed by Discloser;
Recipient independently develops; becomes publicly known other than by
breach of this Section; or Recipient rightfully receives from a third
party without the obligation of confidentiality.
(d) You acknowledge that we must comply with the information security
standards of the Xxxxx-Xxxxx-Xxxxxx Act (15 USC 6801, 6805(b)(1)) and
the regulations promulgated thereunder and with other statutory and
regulatory requirements as well as our internal information security
program. You will reasonably assist us In complying and conforming
with our information protection policies. We will inform you of our
requirements in this regard.
14. KNOW YOUR CUSTOMER/ANTI-MONEY LAUNDERING: You represent and warrant
that you: (i) have established policies and procedures designed to prevent and
detect money laundering and to meet applicable anti-money laundering
legal and regulatory requirements; (ii) have identified, will continue to
Identify and will retain all documentation necessary to identify your Customers
and their sources of funds; and (iii) do not believe, have no current reason to
believe and will notify us if you come to have reason to believe that any of
your Customers are engaged in money-laundering activities or are associated with
any terrorist or other individuals, entities or organizations sanctioned by the
United States Or the jurisdictions in which you do business.
Upon request, you will promptly provide us such documentation regarding your
know your customer and anti-money laundering policies and/or evidencing the
identity of the beneficial owners of Fund shares as is necessary to permit us,
the Funds and the Transfer Agent to comply with applicable "know your customer"
and anti-money laundering laws and regulations. You agree to monitor unusual
transactions and to assist us in monitoring unusual transactions upon our or the
Funds' request.
15. INDEMNIFICATION: You shall indemnify and hold harmless us, each Fund,
the Transfer Agent, and our and their respective subsidiaries, affiliates,
officers, directors, trustees, agents and employees from all direct or indirect
liabilities, damages, losses, costs or expenses (including attorneys' fees)
arising from, related to or otherwise connected with (i) any breach by you of
any provision of this Agreement; (ii) any violation by you of applicable law or
regulation, including regulations of applicable self-regulatory organizations;
or (iii) any actions or omissions by us, any Fund, the Transfer Agent, and our
and their subsidiaries, affiliates, officers, directors, trustees, agents and
employees made in reliance upon any instructions believed to be genuine and to
have been given on your behalf. The provisions of this Section shall survive the
termination of this Agreement.
16. CLEARING SERVICES: If you provide brokerage clearing services to
financial intermediaries who wish to sell Fund shares ("Originating Firms"), you
represent that you and each such Originating Firm are parties to a clearing
agreement that conforms to the requirements of Rule 3230 of the NASD Conduct
Rules or, as applicable, the rules of a national securities exchange. In
addition, you agree that (a) you are responsible for ensuring that Fund shares
are offered and sold by Originating Firms in compliance with all terms and
conditions of this Agreement and the Prospectus as if you had conducted such
offers and sales yourself and (b) your agreements with each Originating Firm
will comply with all requirements of Regulation S-P of the U.S. Securities and
Exchange Commission ("SEC") and will require each Originating Firm to adopt
policies and procedures that address suitable safeguards for the protection of
consumer records and Information.
17. NSCC:
(a) You may settle Fund share redemptions via NSCC Fund/Serv and without a
guaranteed endorsement provided: (a) the wire order redemption request
is placed through NSCC Fund/Serv and (b) in the case of certificated
shares, the appropriate certificate(s) are received as settlement and
the reverse of such certificate(s) is not completed or signed in a
manner deemed inconsistent by us or the Transfer Agent.
(b) If we agree to participate in the NSCC "Networking" program with you,
you and we will execute a separate agreement provided that, to the
extent that any terms of this
Agreement conflict with the terms of such separate agreement, the
terms of this Agreement shall prevail. We agree that you may then act
through the Transfer Agent, the Networking channels and Fund/Serv as
provided in that agreement and without supporting documentation from
your Customers (including customers of Originating Firms if you are a
clearing broker), provided:
(i) You provide all necessary, requested, updating and reconciling
information to ensure the accuracy of records and to enable the
Transfer Agent to maintain an accurate cross-reference file
between Customer records and the Fund account records, which
shall remain the official records of all Fund shareholder
accounts. You agree that the Transfer Agent will not be
responsible for changes to the file until a reasonable time after
receipt.
(ii) You promptly will provide us with all applicable Information
regarding adverse claims, governmental and legal inquiries and
correspondence.
(iii) You will report to your Customers all information the Funds must
report on shareholder confirmations or otherwise under any
applicable law or regulation or the terms of the Prospectus or
which we, the Transfer Agent or the Funds provide you. Such
reporting shall be complete, accurate and timely.
(iv) You will ensure that cash distributions are accurately paid to
your Customer at the time specified by the Fund and you shall be
solely responsible for any liabilities arising from payments
reported by Customers as lost, stolen or forged.
(c) You further agree: that if you are acting as a clearing broker, you
have obtained the prior written consent of each Originating Firm to
all terms of this Section and the separate agreement and that all
actions taken will be approved in advance by the applicable
Originating Firm; to perform all duties, functions or responsibilities
described herein and in the Networking Agreement in a businesslike and
competent manner; that you or the Originating Firm has the prior
sufficient consent of each Customer whose account is to be placed in
or transferred to a Networking account, having first informed each
Customer in writing of all related material facts; that all your
instructions and actions regarding Networked accounts will be
accurate, complete and in the appropriate format; that you will be
deemed to guarantee in proper order of your Customer's signature and
the taking of any action as to which the Transfer Agent normally
requires a signature guarantee; that you will obtain and maintain, and
provide upon request, all documents or information for each Networking
account required by applicable law or regulation; that you will
maintain adequate insurance coverage for your obligations hereunder
and provide us upon request with an appropriate certificate of
insurance; and that you will perform all federal, state and local tax
reporting with respect to transactions in shares through the NSCC
Fund/Serv program.
18. AMENDMENT AND TERMINATION OF AGREEMENT: This Agreement shall become
effective as of the date on the signature page. This Agreement shall cancel and
supersede any and all prior similar agreements or contracts relating to the
distribution of the shares between. We reserve the right to amend or assign (to
the extent assignment Is permitted under applicable law or
regulation) this Agreement at any time. You shall accept any amendment to or
assignment of this Agreement by us by placing an order after the data sat forth
in any notice of amendment or assignment we send you. This Agreement shall
automatically terminate upon Its assignment by you or by us (to the extent that
applicable law or regulation requires termination in the event of our
assignment), whether by operation of law or otherwise. You shall provide us
reasonable written notice of such an assignment. Either party may terminate this
Agreement upon reasonable written notice.
19. NOTICES: You will send any notice to us by first class mail, postage
prepaid, or by confirmed telefacsimile at: Columbia Funds Distributors, Inc.,
c/o Dealer File Department 000 Xxxxxx Xxxxxx, 0(xxxxxx) Xxxxx, Xxxxxx, XX 00000
, telefacsimile 000-000-0000, with a copy to Legal Counsel, Xxx Xxxxxxxxx
Xxxxxx, Xxxxxx, XX 00000, telefacsimile 000-000-0000. We will send any notice to
you by first class mail, postage prepaid, or by confirmed telefacsimile to you
at your address or telefacsimile number as set forth on the signature page or
such other address or telefacsimile number as we may reasonably believe
appropriate. A party that changes its address or telefacsimile number shall
promptly notify the other party.
20. USE OF TRADEMARKS, SERVICE MARKS AND FUND NAMES: We, our affiliates and
the Funds own certain registered trademarks, service marks and Fund names
(collectively, the "Logos"). If you wish to Include Logos in your promotional
materials (collectively, "Sales Materials") or use a Logo as a hyperlink from an
Internet Web site you own and/or control, we grant you a non-exclusive,
non-transferable, royalty-free license to use the Logos in Sales Materials and
as a hyperlink, provided:
(a) You agree that we, our affiliates and the Funds own all rights, title
and interest in the Logos. You agree to do nothing inconsistent with
our, our affiliates and the Funds' ownership of the Logos and not to
contest or aid anyone contesting any registration or application for
registration of the Logos by us, our affiliates and the Funds;
(b) You agree to use the Logos only in the form and manner we pre-approve.
You agree to use only those Logos as we may specify as hyperlinks. You
shall not use a Logo as a hyperlink in any manner that would Imply
that we, our affiliates or the Funds endorse or recommend any of your
products or services.
(c) You agree to place all necessary and proper notices and legends on the
Safes Materials in order to prated our, our affiliates and the Funds'
interests in the Logos Including symbols indicating trademarks,
service marks and registered trademarks or service marks, as we may
request.
(d) You agree to notify us of any unauthorized use of the Logos by others
promptly after it comes to your attention and that we have the sole
right and discretion to commence actions or other proceedings for
Infringement, unfair competition or the like involving the Logos. You
shall cooperate In any such proceedings if we request.
(e) The license granted shall terminate automatically upon our notice or
upon termination of this Agreement. In those events, you agree to
cease using all Logos In Sales Materials immediately and to destroy at
your expense all Sales Materials in your possession bearing
the Logos. You also agree that all rights in the Logos and in any
connected goodwill shall remain our property.
21. GOVERNING LAW/DISPUTE RESOLUTION:
(a) This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts without giving effect to
conflict of laws principles.
(b) It is agreed and understood that if you are a member of the NASD, to
the extent applicable the rules of the NASD will apply to resolution
of disputes between you and us. You further agree that if for any
reason any dispute under this Agreement is not subject to resolution
through dispute resolution procedures of the NASD and cannot be
resolved through Informal discussion between you and us, the dispute
will be submitted to mediation administered by JAMS (Judicial
Arbitration and Mediation Service) at the JAMS office located in New
York. Any such mediation will be conducted with a JAMS mediator and
under then-applicable JAMS rules and procedures. You and we will share
equally the fees of JAMS and the mediator, but will bear your or our
respective attorneys fees and other expenses of participating in the
mediation. If the dispute is not resolved through informal discussion
or mediation, you or we may file a lawsuit in New York or North
Carolina. You hereby consent to the jurisdiction of the state or
federal courts in the states of New York or Massachusetts to
adjudicate any such lawsuit and to bring any such lawsuit only in a
state or federal court in Now York or Massachusetts. Further, you
agree that trial of any such lawsuit will be conducted without a jury,
that any and all issues of fact or law will be determined by the court
sitting without a jury, and that the court will determine and enter
the verdict in the trial of any such lawsuit. You waive any right to
trial by jury of any lawsuit Involving any dispute under this
Agreement.
22. MISCELLANEOUS:
(a) This Agreement is in all respects subject to the Conduct Rules of the
NASD, which shall control and override any provision to the contrary
in this Agreement. You acknowledge that this Agreement is subject to
all applicable laws and regulations, and has been entered into
pursuant to Rule 12b-1 under the 1940 Act if you sell shares for which
a distribution plan has been adopted pursuant to Rule 12b-1.
(b) if any of your accounts with us pursuant to this Agreement have a
debit balance, we may offset and recover the amount owed from any
other account you have with us or our affiliates, without notice or
demand to you.
(c) The headings in this Agreement are for convenience only and are not to
be used in interpreting this Agreement.
(d) This is the entire agreement and understanding between us and you as
to the matters set forth herein. It shall be binding upon the parties
when signed by us and accepted by you.
(e) This Agreement may be executed in counterparts.
(f) The illegality, invalidity or unenforceability of any provision of
this Agreement under the law of any jurisdiction shall not affect its
legality, validity or enforceability under the law of any other
jurisdiction nor the legality, validity or enforceability of any other
provision.
COLUMBIA FUNDS DISTRIBUTOR, INC.
By:
---------------------------------------------
Xxxxxx X. Xxxxxx
President
You accept this invitation and agree to abide by the foregoing terms and
conditions.
Firm name:
--------------------------------------
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
Address:
Telephone:
Telefacsimile:
Dated:
-----------------------------------
Please execute this Agreement in duplicate
and return both copies to us.
SCHEDULE 1
Additional terms for registered broker-dealers:
1. You represent that you are a member in good standing of the NASD, will
comply with the NASD Conduct Rules and are qualified to act as a
broker-dealer in each state or other jurisdiction In which you transact
business, and agree to maintain such registrations, qualifications and
membership in good standing in full farce and effect throughout the term of
this Agreement.
2. You agree that this Agreement shall automatically terminate without notice
if:
(a) an application for a protective decree under the provisions of the
Securities Investor Protection Act of 1970 has been filed against you;
(b) the SEC revokes or suspends your registration as a broker-dealer,
(c) any national securities exchange or national securities association
revokes or suspends your membership; or
(d) under any applicable net capital rule of the SEC or any national
securities exchange, your aggregate indebtedness exceeds 1,000% of
your net capital.
You agree that you shall notify us immediately of any such proceeding,
application, revocation, suspension or indebtedness level.
SCHEDULE 2
Additional terms for entities that are not registered broker-dealers.
1. You represent and warrant that you are exempt from registration as a
broker-dealer under the U.S. federal securities laws, and that you will
conduct your activities hereunder and otherwise in a manner so as to remain
exempt from such registration and in compliance with all laws and
regulations that are now applicable, or which may become applicable. to you
and your activities hereunder.
2. You represent and warrant that you are exempt from being required to
register or qualify to act as a broker or dealer in the states or other
jurisdictions where you transact business. If such exemption becomes no
longer available to you, you agree to immediately become registered or
qualified to act in such capacity in those jurisdictions where such
exemption is no longer available,
3. You agree that this Agreement will terminate without notice if any court or
regulatory authority with jurisdiction determines that you are acting as a
broker, dealer or similar entity on an unregistered basis in violation of
applicable law. You agree that you shall notify us immediately of any such
determination.
SCHEDULE A
Columbia Acorn Fund Columbia MA Intermediate Municipal Bond Fund
Columbia Acorn International Select Fund Columbia MA Tax-Exempt Fund
Columbia Acorn International Fund Columbia Managed Municipals Fund
Columbia Acorn Select Fund Columbia Mid Cap Growth Fund
Columbia Acorn USA Fund Columbia Mld cap Value Fund
Columbia Asset Allocation Fund Columbia Money Market Fund
Columbia Balanced Fund Columbia Municipal Money Market Fund
Columbia CA Tex-Exempt Fund Columbia National Municipal Bond Fund
Columbia Common Stock Fund Columbia Newport Asia Pacific Fund
Columbia Contrarian Income Fund Columbia Newport Greater China Fund
Columbia Corporate Bond Fund Columbia Newport Tiger Fund
Columbia CT Intermediate Municipal Bond Fund Columbia NJ Intermediate Municipal Bond Fund
Columbia CT Tax-Exempt Fund Columbia NY Intermediate Municipal Bond Fund
Columbia Daily Income Company Fund Columbia NY Tax-Exempt Fund
Columbia Disciplined Value Fund Columbia Oregon Municipal Bond Fund
Columbia Dividend Income Fund Columbia PA Intermediate Municipal Bond
Columbia Europe Fund Columbia Quality Plus Bond Fund
Columbia European Thematic Equity Fund Columbia RI Intermediate Municipal Fund
Columbia Federal Securities Fund Columbia Real Estate Equity Fund
Columbia Fixed Income Securities Fund Columbia Short Term Bond Fund
Columbia FL Intermediate Municipal Bond Fund Columbia Small Cap Fund
Columbia Global Equity Fund Columbia Small Cap Growth Fund
Columbia Global Thematic Equity Fund Columbia Small Cap Value Fund
Columbia Growth & Income Fund Columbia Small Company Equity Fund
Columbia Growth Stock Fund Columbia Small Company Index Fund
Columbia Growth Fund Columbia Strategic Income Fund
Columbia I-Ugh Yield Fund Columbia Strategic Investor Fund
Columbia High Yield Municipal Fund Columbia Tax-Exempt Fund
Columbia High Yield Opportunity Fund Columbia Tax-Exempt Insured Fund
Columbia Income Fund Columbia Tax-Managed Aggressive Growth Fund
Columbia Intermediate Bond Fund Columbia Tax-Managed Growth Fund
Columbia Intermediate Government Income Bond Fund Columbia Tax-Managed Growth Fund li
Columbia Intermediate Tax-Exempt Bond Fund Columbia Tax Managed Value Fund
Columbia International Equity Fund Columbia Technology Fund
Columbia International Stock Fund Columbia Thermostat Fund
Columbia Large Cap Growth Fund Columbia US Treasury Index Fund
Columbia Large Cap Core Fund Columbia Utilities Fund
Columbia Large Company Index Fund Columbia Young Investor Fund Columbia Liberty Fund
