Exhibit (k)(1)
FORM OF
AMENDED AND RESTATED
SHAREHOLDERS' SERVICING AND TRANSFER AGENT AGREEMENT
This agreement (the "Agreement") made as of this 1st day of November, 2003, by
and between each of the Massachusetts business trusts listed on Appendix I
hereto (as the same may from time to time be amended to add one or more
additional investment companies advised by Columbia Management Advisers, Inc. or
to delete one or more of such trusts), each of such trusts acting severally on
behalf of its series listed on Appendix I hereto (as the same may from time to
time be amended to add or delete one or more series of such trust) and not
jointly with any of such other trusts (each of such trusts being hereinafter
referred to as a "Trust" and collectively as the "Trusts" and each series of the
Trust, if any, being hereinafter referred to as a "Fund," but if the Trust does
not have any separate series, then any reference to the "Fund" shall be a
reference to the Trust), Columbia Funds Services, Inc., a Massachusetts
corporation ("CFS") and Columbia Management Advisors, Inc. ("CMA"), an Oregon
corporation, amends and restates the Amended and Restated Shareholders'
Servicing and Transfer Agent Agreement dated July 1, 1991, as amended.
WHEREAS, the Trust desires that CFS perform certain services for the Fund;
and
WHEREAS, CFS is willing to perform such services upon the terms and subject
to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the parties hereto agree as follows:
1. Appointment. The Trusts hereby appoint CFS to act as Transfer Agent,
Dividend Disbursing Agent and Shareholders' Servicing Agent for the Funds and as
agent for the Funds' shareholders in connection with the shareholder plans
described in the Prospectus (as defined below), and CFS accepts such
appointments and will perform the respective duties and functions of such
offices in the manner hereinafter set forth.
Notwithstanding such appointments, however, the parties hereto agree that
CMA may, upon thirty (30) days prior written notice to the Trusts, assume such
duties and functions itself. In such event, CMA shall have all of the rights and
obligations of CFS hereunder. However, whether or not CMA assumes such duties
and functions, CMA guarantees the performance of CFS hereunder and shall be
responsible financially and otherwise, to the Trusts for the performance by CFS
of its obligations under this Agreement.
2. Compensation. Each Trust shall pay to CFS for its services rendered and
its costs incurred in connection with the performance of its duties hereunder,
such compensation and reimbursement as may from time to time be approved by vote
of the Trustees of the Trust.
Schedule A hereto sets forth the compensation and reimbursement
arrangements to be effective November 1, 2003, and the treatment of all interest
earned with respect to balances in the accounts maintained by CFS with the
Fund's custodian (the "Custodian"), referred to in paragraphs 6, 10 and 11
hereof, net of any charges by the Custodian in connection with such accounts,
and all interest earned with respect to balances in the accounts maintained by
Columbia Funds Distributor, Inc (the "Distributor") in connection with the sale
and redemption of shares of the Funds, net of any charges by the bank in
connection with such accounts.
3. Copies of Documents. Each Trust will furnish CFS with copies of the
following documents: the Agreement and Declaration of Trust of the Trust and all
amendments thereto; the By-Laws of the Trust, as amended from time to time; and
the Trust's Registration Statement as in effect on the date hereof under the
Securities Act of 1933, as amended, and the Investment Company Act of 1940, as
amended, and all
amendments or supplements thereto hereafter filed. The Prospectus(es) of the
Funds and Statement(s) of Additional Information contained in such Registration
Statements, as from time to time amended and supplemented, together are herein
collectively referred to as the "Prospectus."
4. Share Certificates. Unless the Trustees of a Trust shall have resolved
that all of the Trust's (or a particular Fund's) shares of beneficial interest,
or all of the shares of a particular series or class of such shares, shall be
issued in uncertificated form, CFS shall maintain a sufficient supply of blank
share certificates representing such shares, in the form approved from time to
time by the Trustees of the Trust. Such blank share certificates shall be
properly signed, manually or by facsimile signature, by the duly authorized
officers of the Trust, and shall bear the seal or facsimile thereof of the
Trust; and not withstanding the death, resignation or removal of any officer of
the authorized to sign such share certificates, CFS may continue to countersign
certificates which bear the manual or facsimile signature of such officer until
otherwise directed by the Trust.
5. Lost or Destroyed Certificates. In case of the alleged loss or
destruction of any share certificate, no new certificate shall be issued in lieu
thereof, unless there shall first be furnished to CFS an affidavit of loss or
non-receipt by the holder of shares with respect to which a certificate has been
lost or destroyed, supported by an appropriate bond satisfactory to CFS and the
relevant Trust issued by a surety company satisfactory to CFS.
6. Receipt of Funds for Investment. CFS will maintain one or more accounts
with the Custodian, into which it will deposit funds payable to CFS as agent
for, or otherwise identified as being for the account of, the Funds or the
Distributor, prior to crediting such funds to the respective accounts of the
Fund and the Distributor. Thereafter, CFS will determine the amount of any such
funds due a Fund (equal to the number of Fund shares sold by the Fund computed
pursuant to paragraph 7 hereof, multiplied by the net asset value of Fund share
next determined after receipt of such purchase order) and the Distributor (equal
to the sales charge applicable to such sale, computed pursuant to paragraph 9
hereof), respectively, deposit the portion due the Distributor in its account
with such bank as may from time to time be designated by the Distributor,
deposit the net amount due the Fund in its account with the Custodian, notify
the Distributor (such notification to the Distributor to include the amount of
such sales charge to be remitted by the Distributor to the dealer participating
in the sale, calculated pursuant to paragraph 9 hereof) and the Custodian,
respectively, of such deposits, such notification to be given as soon as
practicable on the next business day stating the total amount deposited to said
accounts during the previous business day. Such notification shall be confirmed
in writing.
7. Shareholder Accounts. Upon receipt of any funds referred to in paragraph
6 hereof, CFS will compute the number of shares purchased by the shareholder
according to the net asset value of Fund shares next determined after such
receipt less the applicable sales charge, calculated pursuant to paragraph 9
hereof, and:
(a) in the case of a new shareholder, open and maintain an open
account for such shareholder in the name or names set forth in the subscription
application form;
(b) unless the Trustees of the Trust have resolved that all of the
Fund's shares of beneficial interest, or all of the shares of a particular
series or class, shall be issued in uncertificated form, and if specifically
requested in writing by the shareholder, countersign, issue and mail, by first
class mail, to the shareholder at his or her address as set forth in a share
certificate for full shares purchased;
(c) send to the shareholder a confirmation indicating the amount of
full and fractional shares purchased (in the case of fractional shares, rounded
to three decimal places) and the price per share; and
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(d) in the case of a request to establish an accumulation plan,
withdrawal plan, group plan or other plan or program being offered by the Fund's
Prospectus, open and maintain such plan or program for the shareholder in
accordance with the terms thereof;
all subject to any reasonable instructions which the Distributor or the Fund may
give to CFS with respect to rejection of orders for shares.
8. Unpaid Checks. In the event that any check or other order for payment of
money on the account of any shareholder or new investor is returned for any
reason, CFS will:
(a) Give prompt notification to the Distributor of such non-payment;
and
(b) Take such other steps, including imposition of a reasonable
processing or handling fee, as CFS may, in CFS's discretion, deem appropriate,
or as the relevant Trust or the Distributor may instruct CFS.
9. Sales Charge. In computing the number of shares to credit to the account
of a shareholder pursuant to paragraph 7 hereof, CFS will calculate the total of
the applicable Distributor and representative sales charges, commission or other
amount, with respect to each purchase as set forth in the Prospectus and in
accordance with any notification filed with respect to combined and accumulated
purchases; CFS will also determine the portion of each sales charge, commission
or other amount, payable by the Distributor to the dealer or other amount,
payable by the Distributor to the dealer participating in the sale in accordance
with such schedules as are from time to time delivered by the Distributor to
CFS.
10. Dividends and Distributions. Each Trust will promptly notify CFS of the
declaration of any dividends or distribution with respect to Fund shares, the
amount of such dividend or distribution, the date each such dividend or
distribution shall be paid, and the record date for determination of
shareholders entitled to receive such dividend or distribution. As Dividend
Disbursing Agent, CFS will, on or before the payment date of any such dividend
or distribution notify the Custodian of the estimated amount of cash required to
pay such dividend or distribution, and each Trust agrees that on or before the
mailing date of such dividend or distribution it will instruct the Custodian to
make available to CFS sufficient funds therefor in the dividend and distribution
account maintained by CFS with the Custodian. As Dividend Disbursing Agent, CFS
will prepare and distribute to shareholders any funds to which they are entitled
by reason of any dividend or distribution and, in the case of shareholders
entitled to receive additional shares by reason of any such dividend or
distribution, CFS will make appropriate credits to their accounts and prepare
and mail to shareholders a confirmation statement and, if required, a
certificate in respect of such additional shares.
11. Repurchase and Redemptions. CFS will receive and stamp with the date of
receipt all certificates and requests delivered to CFS for repurchase or
redemption of shares and CFS will process such repurchases as agent for the
Distributor and such redemptions as agent for the Trusts as follows:
(a) If such certificate or request complies with standards for
repurchase or redemption approved from time to time by a Trust, CFS will, on or
prior to the seventh calendar day succeeding the receipt of any such request for
repurchase or redemption in good order, deposit any contingent deferred sales
charge ("CDSC") due the Distributor in its account with such bank as may from
time to time be designated by the Distributor and pay to the shareholder from
funds deposited by the Trust from time to time in the repurchase and redemption
account maintained by CFS with the Custodian, the appropriate repurchase or
redemption price, as the case may be, as set forth in the Prospectus;
(b) If such certificate or request does not comply with said standards
for repurchase or redemption as approved by the Trust, CFS will promptly notify
the shareholder of such fact, together with
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the reason therefor, and shall effect such repurchase or redemption at the price
in effect at the time of receipt of documents complying with said standards, or,
in the case of a repurchase, at such other time as the Distributor, as agent for
the Trust, shall so direct; and
(c) CFS shall notify the Trust and the Distributor as soon as
practicable on each business day of the total number of Fund shares covered by
requests for repurchase or redemption which were received by CFS in proper form
on the previous business day, and shall notify the Distributor of deposits to
its account with respect to any CDSC, such notification to be confirmed in
writing.
12. Systematic Withdrawal Plans. CFS will administer systematic withdrawal
plans pursuant to the provisions of withdrawal orders duly executed by
shareholders and the relevant Fund's Prospectus. Payments upon such withdrawal
orders shall be made by CFS from the appropriate account maintained by the
relevant Trust with the Custodian. Prior to the payment date CFS will withdraw
from a shareholder's account and present for repurchase or redemption as many
shares as shall be sufficient to make such withdrawal payment pursuant to the
provisions of the shareholder's withdrawal plan and the Prospectus.
13. Letters of Intent and Other Plans. CFS will process such letters of
intent for investing in shares as are provided for in the Prospectus, and CFS
will act as escrow agent pursuant to the terms of such letters of intent duly
executed by shareholders. CFS will make appropriate deposits to the account of
the Distributor for the adjustment of sales charges as therein provided and will
currently report the same to the Distributor, it being understood, however, that
computations of any adjustment of sales charge shall be the responsibility of
the Distributor or the relevant Trust. CFS will process such accumulation plans,
group programs and other plans or programs for investing in shares as are
provided for in the Prospectus. In connection with any such plan or program, and
with withdrawal plans described in paragraph 12 hereof, CFS will act as plan
agent for shareholders and in so acting shall not be the agent of the Trust.
14. Tax Returns and Reports. CFS will prepare, file with the Internal
Revenue Service and any other federal, state or local governmental agency which
may require such filing, and, if required, mail to shareholders such returns for
reporting dividends and distributions paid by the Funds as are required to be so
prepared, filed and mailed by applicable laws, rules and regulations, and CFS
will withhold such sums as are required to be withheld under applicable Federal
and state income tax laws, rules and regulations.
15. Record Keeping. CFS will maintain records, which at all times will be
the property of the Trusts and available for inspection by the relevant Trust
and Distributor, showing for each shareholder's account the following:
(a) Name, address and United States taxpayer identification or Social
Security number, if provided (or amounts withheld with respect to dividends and
distributions on shares if a taxpayer identification or Social Security number
is not provided);
(b) Number of shares held and number of shares for which certificates
have been issued;
(c) Historical information regarding the account of each shareholder,
including dividends and distributions paid, if any, and the date and price for
all transactions on a shareholder's account;
(d) Any stop or restraining order placed against a shareholder's
account;
(e) Information with respect to withholdings of taxes on dividends
paid to foreign accounts; and
(f) Any instruction as to letters of intent, record address, and any
correspondence or
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instructions relating to the current maintenance of a shareholder's account.
In addition, CFS will keep and maintain on behalf of the Trusts all records
which each Trust or CFS is required to keep and maintain pursuant to any
applicable statute, rule or regulation, including without limitation, Rule
31(a)-1 under the Investment Company Act of 1940, relating to the maintenance of
records in connection with the services to be provided hereunder. CFS shall be
obligated to maintain at its expense only those records necessary to carry out
its duties hereunder and the remaining records will be preserved at the relevant
Trust's expense for the periods prescribed by law.
16. Other Information Furnished. CFS will furnish to each Trust and the
Distributor such other information, including shareholder lists and statistical
information as may be agreed upon from time to time between CFS and the Trust.
CFS shall notify the Trust of any request or demand to inspect the share records
books of the Trust and will act upon the instructions of the Trust as to the
permitting or refusing such inspection.
17. Shareholder Inquiries. CFS will respond promptly to written
correspondence from shareholders, registered representatives of broker-dealers
engaged in selling Fund shares, any Trust and the Distributor relating to its
duties hereunder, and such other correspondence as may from time to time be
mutually agreed upon between CFS and the Trusts. CFS also will respond to
telephone inquiries from shareholders with respect to existing accounts.
18. Communications to Shareholders and Meetings. CFS will determine all
shareholders entitled to receive, and will address and mail, all communications
by a Trust to its shareholders, including quarterly and annual reports to
shareholders, proxy material for meetings of shareholders and periodic
communications to shareholders. CFS will receive, examine and tabulate return
proxy cards for meetings of shareholders and certify the vote to the Trust.
19. Insurance. CFS will not reduce or allow to lapse any of its insurance
coverage from time to time in effect, including but not limited to Errors and
Omissions, Fidelity Bond and Electronic Data Processing coverage, without the
prior written consent of the Trusts.
20. Duty of Care and Indemnification. CFS will at all times use reasonable
care and act in good faith in performing its duties hereunder. CFS will not be
liable or responsible for delays or errors by reason of circumstances beyond its
control, including without limitation, acts of civil or military authority,
national or state emergencies, labor difficulties, fire, mechanical breakdown,
flood or catastrophe, acts of God, insurrection, war, riots or failure of
transportation, communication or power supply.
CFS may rely on certifications of the Secretary, any Assistant Secretary,
the President, any Vice President, the Treasurer or any Assistant Treasurer of a
Trust as to proceedings or facts in connection with any action taken by the
shareholders or Trustees of the Trust, and upon instructions not inconsistent
with this Agreement from the President, any Vice President, the Treasurer or any
Assistant Treasurer of a Trust. CFS may apply to counsel for a Trust, at the
Trust's expense, or to its own counsel for advice whenever it deems expedient.
With respect to any action taken on the basis of such certifications or
instructions or in accordance with the advice of counsel for instructions or in
accordance with the advice of counsel for a Trust, the Trust will indemnify and
hold harmless CFS from any and all losses, claims, damages, liabilities and
expenses (including reasonable counsel fees and expenses).
The Trusts will indemnify CFS against and hold CFS harmless from any and
all losses, claims, damages, liabilities and expenses (including reasonable
counsel fees and expenses) in respect to any claim, demand, action or suit not
resulting from CFS's bad faith or negligence and arising out of, or in
connection with, its duties on behalf of the Trusts under this Agreement.
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CFS shall also be indemnified and held harmless by the Trusts against any
loss, claim, damage, liability and expenses (including reasonable counsel fees
and expenses) by reason of any act done by it in good faith and in reliance upon
any instrument or certificate for shares believed by it (a) to be genuine and
(b) to be signed, countersigned or executed by any person or persons authorized
to sign, countersign, or execute such instrument or certificate.
In any case in which a party to this Agreement may be asked to indemnify or
hold harmless the other party hereto, the party seeking indemnification shall
advise the other party of all pertinent facts concerning the situation giving
rise to the claim or potential claim for indemnification, and each party shall
use reasonable care to identify and notify the other promptly concerning any
situation which presents or appears likely to present a claim for
indemnification.
21. Employees. CFS is responsible for the employment, control and conduct
of its agents and employees and for injury to such agents or employees or to
others caused by such agents or employees. CFS assumes full responsibility for
its agents and employees under applicable statutes and agrees to pay all
employer taxes thereunder.
CFS shall maintain at its own expense insurance against public liability in
a reasonable amount.
22. Renegotiation of Compensation. CFS agrees that if it provides services
comparable to those contemplated by this Agreement to any other investment
company or group of companies on terms and conditions more favorable than the
terms and conditions applicable under this Agreement or in the event CMA sells
or licenses the CTRAN system to parties other than investment companies advised
by CMA that are parties to this Agreement, the parties hereto agree to negotiate
in good faith as to whether some adjustment in the compensation arrangement
hereunder might be appropriate. CFS and CMA agree to notify the Trustees of the
Trusts of any plans to provide shareholder servicing and transfer agent services
to other investment companies or to sell or lease the CTRAN system and will
disclose to such Trustees all information concerning the terms and conditions on
which such services will be provided or such sale or license is to be made.
23. Termination. This Agreement shall continue indefinitely until
terminated by not less than ninety (90) days' written notice given by the Trusts
to CFS or, by six (6) months written notice given by CFS to the Trusts. Upon
termination hereof, the Trusts shall pay such compensation as may be due to CFS
as of the date of such termination.
24. Successors. In the event that (i) in connection with termination of
this Agreement a successor to any of CFS's duties or responsibilities hereunder
is designated by the Trusts by written notice to CFS, or (ii) CMA exercises its
prerogative under paragraph 1 hereof to assume the duties and functions of CFS
hereunder, CFS shall promptly at the expense of the Trusts, transfer to such
successor or CMA, as the case may be, a certified list of the shareholders of
the Funds (with name, address and taxpayer identification or Social Security
number), and historical record of the account of each shareholder and the status
thereof, all other relevant books, records, correspondence and other data
established or maintained by CFS under this Agreement in form reasonably
acceptable to the Trusts (if such form differs from the form in which CFS has
maintained the same, the Trusts shall pay any expenses associated with
transferring the same to such form), and will cooperate in the transfer of such
duties and responsibilities, including provision for assistance from CFS's
personnel in the establishment of books, records and other data by such
successor CMA. CFS shall be entitled to reasonable compensation and
reimbursement of its out-of-pocket expenses in respect of assistance provided in
accordance with the preceding sentence. Also, in the event of the termination of
this Agreement, to the extent permitted by the agreements or licenses described
below, CFS and CMA shall, if requested by the Trustees of the Trust, assign to
any entity wholly owned, directly or indirectly, by
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Columbia Management Group, Inc. or by the Trusts collectively, or any of them,
all of their rights under any existing agreements to which either of them is a
party and pursuant to which either has a right to have access to data processing
capability in connection with the services contemplated by this Agreement and
under any licenses to use third-party software in connection therewith, and in
connection with such assignment shall grant to the assignee an irrevocable right
and license or sublicenses, on a non-exclusive basis, to use any software used
in connection therewith and, on an exclusive basis, any proprietary rights or
interest which it has under such agreements or licenses.
25. Miscellaneous. This Agreement shall be construed in accordance with and
governed by the laws of The Commonwealth of Massachusetts.
The captions in this Agreement are included for convenience of reference
only and in no way define or limit any of the provisions of this Agreement 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 taken together shall constitute one and the same
instrument.
A copy of the Declaration of Trust of each Trust is on file with the
Secretary of the Commonwealth of Massachusetts, and notice is hereby given that
this instrument is executed on behalf of the Trustees of each Trust as Trustees
and not individually and that the obligations of or arising out of the
instrument are not binding upon any of the Trustees or officers or shareholders
individually, but binding only upon the assets and property of each Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
THE TRUSTS ON BEHALF OF THEIR SERIES LISTED ON APPENDIX I
By:
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Name: Xxxxxx X. Xxxxxxx
Title: President
COLUMBIA FUNDS SERVICES, INC.
By:
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Name:
Title:
COLUMBIA MANAGEMENT ADVISORS, INC.
By:
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Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Operating Officer
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