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AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization dated as of January 10, 2009 (the
"Agreement") is between each selling entity identified in Schedule A hereto
(each a "Selling Corporation")(1), on behalf of each series thereof identified
in Schedule A hereto as a Selling Fund (each a "Selling Fund"), each
corresponding buying entity identified in Schedule A hereto (each a "Buying
Corporation")(2), on behalf of each series thereof identified in Schedule A
hereto as the corresponding Buying Fund (each a "Buying Fund"), and RiverSource
Investments, LLC (solely for the purposes of Sections 3c and 11 of the
Agreement).
This Agreement shall be treated for all purposes as if each reorganization
between a Selling Fund and its corresponding Buying Fund contemplated hereby had
been the subject of a separate agreement.
In consideration of their mutual promises, the parties agree as follows:
1. SHAREHOLDER APPROVAL. Each Selling Fund will call a meeting of its
shareholders for the purpose of approving the Agreement and the
transactions it contemplates (each a "Reorganization"). Each Buying Fund
agrees to furnish data and information, as reasonably requested, for the
proxy statement to be furnished to shareholders of the corresponding
Selling Fund.
2. REORGANIZATION.
a. Plan of Reorganization. Each Reorganization will be a reorganization
within the meaning of Section 368(a) of the Internal Revenue Code of
1986, as amended (the "Code"). At the Closing, each Selling
Corporation will convey all of the assets of each Selling Fund to
the corresponding Buying Fund. Each Buying Fund will assume all
liabilities of the corresponding Selling Fund. At the Closing, each
Buying Corporation will deliver shares of each Buying Fund,
including fractional shares, to the corresponding Selling
Corporation on behalf of the corresponding Selling Fund. The number
of shares will be determined by dividing the value of the net assets
attributable to each class of shares of each Selling Fund, computed
as described in paragraph 3(a), by the net asset value of one share
of the corresponding class of the corresponding Buying Fund,
computed as described in paragraph 3(b). Each Selling Fund will not
pay a sales charge on the receipt of the corresponding Buying Fund's
shares in exchange for the assets of such Selling Fund. In addition,
the shareholders of each Selling Fund will not pay a sales charge on
distribution to them of shares of the corresponding Buying Fund.
b. Closing and Effective Time of the Reorganization. The Reorganization
and all related acts necessary to complete the Reorganization (the
"Closing") will occur on the first day on which the New York Stock
Exchange (the "NYSE") is open for business following approval of
shareholders of each Selling Fund and receipt of all necessary
regulatory approvals, or such later date as the officers of the
Selling Corporation and Buying Corporation may agree.
3. VALUATION OF NET ASSETS.
a. The net asset value of each Selling Fund will be computed as of the
close of regular trading on the NYSE on the business day immediately
preceding the day of Closing (the "Valuation Date") using the
valuation procedures set forth in the corresponding Buying Fund's
then current prospectus.
b. The net asset value per share of shares of each Buying Fund will be
determined as of the close of regular trading on the NYSE on the
Valuation Date, using the valuation procedures in each Buying Fund's
then current prospectus.
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(1) The Selling Corporation for the Reorganization of Xxxxxxxx Asset
Allocation Aggressive Growth Fund, Xxxxxxxx Asset Allocation Balanced
Fund, Xxxxxxxx Asset Allocation Growth Fund and Xxxxxxxx Asset Allocation
Moderate Growth Fund is a Maryland corporation.
(2) The Buying Corporation for each Buying Fund, RiverSource Portfolio Builder
Aggressive Fund, RiverSource Portfolio Builder Moderate Aggressive Fund
and RiverSource Portfolio Builder Total Equity Fund, is a Minnesota
corporation.
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c. At the Closing, each Selling Fund will provide the corresponding
Buying Fund with a copy of the computation showing the valuation of
the net asset value per share of such Selling Fund on the Valuation
Date, and each Buying Fund will provide the corresponding Selling
Fund with a copy of the computation showing the determination of the
net asset value per share of such Buying Fund on the Valuation Date.
Both computations will be certified by an officer of RiverSource
Investments, LLC, the investment manager.
4. LIQUIDATION AND DISSOLUTION OF THE SELLING FUND.
a. On the date of the Closing, each Selling Corporation will liquidate
each Selling Fund and distribute shares of each class of the
corresponding Buying Fund to the shareholders of record of such
Selling Fund's corresponding class. Each Buying Fund will establish
shareholder accounts in the names of each corresponding Selling Fund
shareholder, representing the respective pro rata number of full and
fractional shares of such class of the Buying Fund due to each such
shareholder. All issued and outstanding shares of each Selling Fund
will simultaneously be cancelled on the books of each Selling
Corporation. Each Buying Fund or its transfer agent will establish
shareholder accounts in accordance with instructions from the
corresponding Selling Corporation.
b. Immediately after the close of business on the Valuation Date, the
share transfer books of each Selling Corporation relating to each
Selling Fund will be closed and no further transfer of shares will
be made.
c. Promptly after the Closing, each Buying Fund or its transfer agent
will notify each shareholder of the corresponding Selling Fund of
the number of shares distributed to the shareholder and confirm the
registration in the shareholder's name.
d. As promptly as practicable after the Closing, and in no event later
than twelve months from the date of the Closing, each Selling Fund
will be dissolved.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BUYING CORPORATION.
With respect to each Reorganization, the Buying Corporation represents
and warrants to the Selling Fund as follows:
a. Organization, Existence, etc. The Buying Corporation is a
corporation duly organized, validly existing and in good standing
under the laws of the state of Minnesota and has the power to carry
on its business as it is now being conducted.
b. Registration as Investment Company. The Buying Corporation, of which
the Buying Fund is a series, is registered under the Investment
Company Act of 1940 (the "1940 Act") as an open-end, management
investment company.
c. Capitalization. The Buying Corporation has authorized capital of
10,000,000,000 shares of common stock, par value $0.01 per share.
All of the outstanding shares of the Buying Corporation have been
duly authorized and are validly issued, fully paid and
non-assessable. Since the Buying Fund is engaged in the continuous
offering and redemption of its shares, the number of outstanding
shares may vary daily.
d. Financial Statements. The Buying Fund's audited financial statements
as of the end of the last fiscal year, and the subsequent unaudited
semi-annual financial statements, if any (the "Buying Fund Financial
Statements"), fairly present the financial position of the Buying
Fund and the results of its operations and changes in its net assets
for the periods shown.
e. Shares to be Issued Upon Reorganization. The shares to be issued in
connection with the Reorganization will be duly authorized and, at
the time of the Closing, will be validly issued, fully paid and
non-assessable.
f. Authority Relative to the Agreement. The Buying Corporation has the
power to enter into and carry out the obligations described in this
Agreement. The Agreement and the transactions contemplated by it
have been duly authorized by the Board of Directors of the Buying
Corporation and no other proceedings by the Buying Corporation or
the Buying Fund are necessary.
g. No Violation. The Buying Corporation is not in violation of its
Articles of Incorporation or By-Laws (the "Articles") or in default
in the performance of any material agreement to which it is a party.
The execution of this Agreement and the completion of the
transactions contemplated by it will not conflict with, or
constitute a breach of, any material contract or other instrument to
which the Buying Fund is subject. The
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transactions will not result in any violation of the provisions of
the Articles or any law, administrative regulation or administrative
or court decree applicable to the Buying Fund.
h. Liabilities. The Buying Fund has no known liabilities of a material
amount, contingent or otherwise, other than liabilities disclosed in
the Buying Fund Financial Statements, liabilities incurred in the
ordinary course of business subsequent to the date of the latest
annual or semi-annual financial statements, or liabilities
previously disclosed to the Selling Fund.
i. Litigation. There is no litigation, administrative proceeding or
investigation before any court or governmental body currently
pending or, to the knowledge of the Buying Fund, threatened, that
would materially and adversely affect the Buying Fund, its financial
condition or the conduct of its business, or that would prevent or
hinder completion of the transactions contemplated by this
Agreement. The Buying Fund knows of no facts that might form the
basis for the institution of any such litigation, proceeding or
investigation and the Buying Fund is not a party to or subject to
the provisions of any order, decree or judgment.
j. Contracts. Except for contracts and agreements previously disclosed
to the Selling Corporation, the Buying Fund is not a party to or
subject to any material contract, debt instrument, plan, lease,
franchise, license or permit.
k. Regulated Investment Company Qualification. The Buying Fund has
qualified and met the requirements for treatment as a "regulated
investment company" within the meaning of Section 851 of the Code
with respect to each taxable year since commencement of its
operations and will continue to meet such requirements and to so
qualify at all times through the Closing.
l. Taxes. As of the Closing, the Buying Fund will (i) have filed all
federal and other tax returns and reports that have been required to
be filed, (ii) have paid or provided for payment of all federal and
other taxes shown to be due on such returns or on any assessments
received, (iii) have adequately provided for all tax liabilities on
its books, (iv) except as disclosed to the Selling Fund, not have
had any tax deficiency or liability asserted against it or question
with respect thereto raised, and (v) except as disclosed to the
Selling Fund, not be under audit by the Internal Revenue Service or
by any state or local tax authority for taxes in excess of those
already paid.
m. Registration Statement. The Buying Fund will file a registration
statement on Form N-14 (the "Registration Statement") with the
Securities and Exchange Commission under the Securities Act of 1933
(the "1933 Act") relating to the shares to be issued in the
Reorganization. At the time the Registration Statement becomes
effective, at the time of the shareholders' meeting described in
paragraph 1 and at the Closing, the Registration Statement will not
contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein not
misleading. However, none of the representations and warranties in
this subsection apply to statements in, or omissions from, the
Registration Statement made in reliance on information furnished by
the Selling Fund for use in the Registration Statement.
n. Business Activities. The Buying Fund will operate its business in
the ordinary course between the date hereof and the date of the
Closing, it being understood that such ordinary course of business
will include regular and customary periodic dividends and
distributions and any other distribution that may be advisable.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLING CORPORATION.
With respect to each Reorganization, the Selling Corporation represents
and warrants to the Buying Fund as follows:
a. Organization, Existence, etc. The Selling Corporation is a
corporation duly organized, validly existing and in good standing
under the laws of the state of Maryland and has the power to carry
on its business as it is now being conducted.
b. Registration as Investment Company. The Selling Corporation, of
which the Selling Fund is a series, is registered under the 1940 Act
as an open-end, management investment company.
c. Capitalization. The Selling Corporation has authorized capital of
4,000,000,000 shares of common stock, par value $0.001 per share.
All of the outstanding shares have been duly authorized and are
validly issued,
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fully paid and nonassessable. Since the Selling Fund is engaged in
the continuous offering and redemption of its shares, the number of
outstanding shares may vary daily.
d. Financial Statements. The Selling Fund's audited financial
statements as of the end of the last fiscal year, and the subsequent
unaudited semi-annual financial statements, if any (the "Selling
Fund Financial Statements"), fairly present the financial position
of the Selling Fund, and the results of its operations and changes
in its net assets for the periods shown.
e. Authority Relative to the Agreement. The Selling Corporation has the
power to enter into and to carry out its obligations under this
Agreement. The Agreement and the transactions contemplated by it
have been duly authorized by the Board of Directors of the Selling
Corporation and no other proceedings by the Selling Corporation or
the Selling Fund are necessary, other than the approval of
shareholders contemplated in paragraph 1.
f. No Violation. The Selling Corporation is not in violation of its
Articles or in default in the performance of any material agreement
to which it is a party or in default in the performance of any
material agreement to which it is a party). The execution of this
Agreement and the completion of the transactions contemplated by it
will not conflict with or constitute a breach of, any material
contract to which the Selling Fund is subject. The transactions will
not result in any violation of the provisions of the Articles, as
the case may be, or any law, administrative regulation or
administrative or court decree applicable to the Selling Fund.
g. Liabilities. The Selling Fund has no known liabilities of a material
amount, contingent or otherwise, other than liabilities disclosed in
the Selling Fund Financial Statements, liabilities incurred in the
ordinary course of business subsequent to the date of the latest
annual or semi-annual financial statements, or liabilities
previously disclosed to the Buying Fund.
h. Litigation. There is no litigation, administrative proceeding or
investigation before any court or governmental body currently
pending or, to the knowledge of the Selling Fund, threatened, that
would materially and adversely affect the Selling Fund, its
financial condition or the conduct of its business, or that would
prevent or hinder completion of the transactions contemplated by
this Agreement. The Selling Fund knows of no facts that might form
the basis for the institution of any such litigation, proceeding or
investigation and is not a party to or subject to the provisions of
any order, decree or judgment.
i. Contracts. Except for contracts and agreements previously disclosed
to the Buying Corporation, the Selling Fund is not a party to or
subject to any material contract, debt instrument, plan, lease,
franchise, license or permit.
j. Regulated Investment Company Qualification. The Selling Fund has
qualified and met the requirements for treatment as a "regulated
investment company" within the meaning of Section 851 of the Code
with respect to each taxable year since commencement of its
operations and will continue to meet such requirements and to so
qualify at all times through the Closing.
k. Taxes. As of the Closing, the Selling Fund will (i) have filed all
federal and other tax returns and reports that have been required to
be filed, (ii) have paid or provided for payment of all federal and
other taxes shown to be due on such returns or on any assessments
received, (iii) have adequately provided for all tax liabilities on
its books, (iv) except as disclosed to the Buying Fund, not have had
any tax deficiency or liability asserted against it or question with
respect thereto raised, and (v) except as disclosed to the Buying
Fund, not be under audit by the Internal Revenue Service or by any
state or local tax authority for taxes in excess of those already
paid.
l. Fund Securities. All securities listed in the schedule of
investments of the Selling Fund as of the Closing will be owned by
the Selling Fund free and clear of any encumbrances, except as
indicated in the schedule.
m. Registration Statement. The Selling Fund will cooperate with the
Buying Fund and will furnish information relating to the Selling
Corporation and the Selling Fund required in the Registration
Statement. At the time the Registration Statement becomes effective,
at the time of the shareholders' meeting described in paragraph 1
and at the Closing, the Registration Statement, as it relates to the
Selling Corporation or the Selling Fund, will not contain an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein not misleading. However,
the representations and warranties in this subsection apply only to
statements in or omissions from the Registration Statement made in
reliance
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upon information furnished by the Selling Corporation or the Selling
Fund for use in the Registration Statement.
n. Provision of Books and Records. The Selling Fund will provide its
books and records to the corresponding Buying Fund for purposes of
preparing any tax returns required by law to be filed after the
Closing date, including (1) the tax return for the period ending on
the Closing date, and (2) the tax return for the period beginning
the day after the Closing and ending the earlier of the current
fiscal year-end of the corresponding Buying Fund and the taxable
year end chosen by the corresponding Buying Fund following the
Reorganization.
o. Business Activities. The Selling Fund will operate its business in
the ordinary course between the date hereof and the date of the
Closing, it being understood that such ordinary course of business
will include regular and customary periodic dividends and
distributions and any other distribution that may be advisable.
7. CONDITIONS TO OBLIGATIONS OF THE BUYING CORPORATION. The obligations of
the Buying Corporation with respect to each Reorganization are subject to
the satisfaction of the following conditions:
a. Shareholder Approval. This Agreement will have been approved by the
affirmative vote of the holders of the majority of the voting power
of all Selling Fund shares entitled to vote.
b. Representations, Warranties and Agreements. The Selling Corporation
and the Selling Fund will have complied with this Agreement and each
of the representations and warranties in this Agreement will be true
in all material respects as of the date of the Closing. An officer
of the Selling Corporation will provide a certificate to each Buying
Fund confirming that, as of the Closing, the representations and
warranties set forth in Section 6 are true and correct and that
there have been no material adverse changes in the financial
condition, results of operations, business, properties or assets of
the corresponding Selling Fund since the date of its last financial
statement, except as otherwise indicated in any financial
statements, certified by an officer of the Selling Corporation, and
delivered to such Buying Fund on the date of the Closing.
c. Regulatory Approvals.
- The Registration Statement referred to in Sections 5(m) and
6(m) will be effective and no stop orders under the 1933 Act
will have been issued.
- All necessary approvals, consents and exemptions from federal
and state regulatory authorities will have been obtained.
d. Opinion of Counsel. The Buying Corporation will have received an
opinion of counsel for the Selling Corporation, dated as of the date
of the Closing, to the effect that: (i) the Selling Corporation is a
corporation duly organized and validly existing under the laws of
the state of Maryland; (ii) each Selling Fund is a series of the
Selling Corporation, an open-end management investment company
registered under the 1940 Act, as applicable; (iii) this Agreement
and the Reorganization has been duly authorized and approved by all
requisite action of the Selling Corporation and each Selling Fund
and this Agreement has been duly executed by, and is a valid and
binding obligation of, the Selling Corporation.
e. Declaration of Dividend. The Selling Fund will have declared, prior
to the Closing, a dividend or dividends, which, together with all
previous such dividends, shall have the effect of distributing to
the Selling Fund shareholders (i) all of the excess of (x) the
Selling Fund's investment income excludable from gross income under
Section 103 of the Code over (y) the Selling Fund's deductions
disallowed under Sections 265 and 171 of the Code, (ii) all of the
Selling Fund's investment company taxable income as defined in
Section 852 of the Code (in each case computed without regard to any
deduction for dividends paid) and (iii) all of the Selling Fund's
net capital gain realized (after reduction for any capital loss
carryover), in each case for the current taxable year (which will
end on the Closing date) and any preceding taxable years for which
such a dividend is eligible to be made under Section 855 of the
Code.
8. CONDITIONS TO OBLIGATIONS OF THE SELLING CORPORATION. The obligations of
the Selling Corporation with respect to each Reorganization are subject to
the satisfaction of the following conditions:
a. Shareholder Approval. This Agreement will have been approved by the
affirmative vote of the holders of the majority of the voting power
of all Selling Fund shares entitled to vote.
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b. Representations, Warranties and Agreements. The Buying Fund will
have complied with this Agreement and each of the representations
and warranties in this Agreement will be true in all material
respects as of the date of the Closing. An officer of the Buying
Corporation will provide a certificate to each Selling Fund
confirming that, as of the Closing, the representations and
warranties set forth in Section 5 are true and correct and that
there have been no material adverse changes in the financial
condition, results of operations, business, properties or assets of
the corresponding Buying Fund since the date of its last financial
statement, except as otherwise indicated in any financial
statements, certified by an officer of the Buying Corporation, and
delivered to such Selling Fund on or prior to the last business day
before the Closing.
c. Regulatory Approvals.
- The Registration Statement referred to in Sections 5(m) and
6(m) will be effective and no stop orders under the 1933 Act
will have been issued.
- All necessary approvals, consents and exemptions from federal
and state regulatory authorities will have been obtained.
d. Opinion of Counsel. The Selling Corporation will have received the opinion
of counsel for the Buying Corporation, dated as of the date of the
Closing, to the effect that: (i) the Buying Corporation is a corporation
duly organized and validly existing under the laws of the state of
Minnesota; (ii) each Buying Fund is a series of the Buying Corporation, an
open-end management investment company registered under the 1940 Act;
(iii) this Agreement and the Reorganization has been authorized and
approved by all requisite action of the Buying Corporation and each Buying
Fund and this Agreement has been duly executed by, and is a valid and
binding obligation of, the Buying Corporation; and (iv) the shares to be
issued in the Reorganization are duly authorized and upon issuance in
accordance with this Agreement will be validly issued, fully paid and
non-assessable shares of each Buying Fund.
9. CONDITIONS TO OBLIGATIONS OF THE SELLING CORPORATION AND THE BUYING
CORPORATION. The obligations of each of the Selling Corporation and the
Buying Corporation with respect to each Reorganization are subject to the
satisfaction of the following conditions:
Tax Opinion. With respect to the Reorganization between a Selling Fund and
its corresponding Buying Fund, the Selling Fund shall have received an
opinion of Ropes & Xxxx LLP satisfactory to such Selling Fund, and the
Buying Fund shall have received an opinion of Ropes & Xxxx LLP
satisfactory to such Buying Fund, each substantially to the effect that,
on the basis of existing provisions of the Code, Treasury regulations
promulgated thereunder, current administrative rules, pronouncements and
court decisions, although the matter is not free from doubt, generally for
federal income tax purposes:
a. The acquisition by the Buying Fund of the assets of the Selling Fund
in exchange for the Buying Fund's assumption of all liabilities of
the Selling Fund and delivery to the Selling Fund of the acquisition
shares, followed by the distribution by the Selling Fund of the
acquisition shares to the shareholders of the Selling Fund in
exchange for their Selling Fund shares, all as provided in paragraph
2(a) and 4(a) hereof, will constitute a reorganization within the
meaning of Section 368(a) of the Code, and the Selling Fund and the
Buying Fund will each be "a party to a reorganization" within the
meaning of Section 368(b) of the Code;
b. No gain or loss will be recognized by the Selling Fund upon (i) the
transfer of its assets to the Buying Fund in exchange for the
acquisition shares and the assumption by the Buying Fund of all
liabilities of the Selling Fund or (ii) the distribution of the
acquisition shares by the Selling Fund to its shareholders in
liquidation, as contemplated in paragraph 4(a) hereof;
c. No gain or loss will be recognized by the Buying Fund upon receipt
of the assets of the Selling Fund in exchange for acquisition shares
and the assumption by the Buying Fund of all liabilities of the
Selling Fund as contemplated in paragraph 2(a) hereof;
d. The tax basis in the hands of the Buying Fund of the assets of the
Selling Fund transferred to the Buying Fund in the Reorganization
will be the same as the tax basis of such assets in the hands of the
Selling Fund immediately prior to the transfer;
e. The holding periods of the assets of the Selling Fund in the hands
of the Buying Fund will include the periods during which such assets
were held by the Selling Fund;
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f. No gain or loss will be recognized by the Selling Fund's
shareholders upon the exchange of their shares of the Selling Fund
for the acquisition shares; g. The aggregate tax basis of the
acquisition shares the Selling Fund shareholder receives in the
Reorganization will be the same as the aggregate tax basis of his or
her Selling Fund's shares exchanged therefor;
h. The Selling Fund shareholder's holding period for the acquisition
shares will include the period for which he or she held the Selling
Fund's shares exchanged therefor, provided that the shareholder held
such Selling Fund's shares as capital assets on the date of the
exchange; and
i. The Buying Fund will succeed to and take into account the items of
the Selling Fund described in Section 381(c) of the Code, subject to
the conditions and limitations specified in Sections 381, 382, 383
and 384 of the Code and the regulations thereunder.
Ropes & Xxxx LLP will express no view with respect to the effect of the
Reorganization on any transferred asset as to which any unrealized gain or
loss is required to be recognized under federal income tax principles (i)
at the end of a taxable year or upon the termination thereof or (ii) upon
the transfer of such asset regardless of whether such a transfer would
otherwise be a non-taxable transaction.
Each opinion will be based on certain factual certifications made by
officers of the Selling Fund and the Buying Fund, and will also be based
on customary assumptions. The opinions are not guarantees that the tax
consequences of the Reorganizations will be as described above. With
respect to the Reorganizations in which Xxxxxxxx Asset Allocation Growth
Fund, Xxxxxxxx Asset Allocation Moderate Growth Fund and Xxxxxxxx Asset
Allocation Balanced Fund are the Selling Funds, the opinions will note and
distinguish certain published precedent. There is no assurance that the
Internal Revenue Service or a court would agree with the opinions.
10. AMENDMENT; TERMINATION; NON-SURVIVAL OF COVENANTS, WARRANTIES AND
REPRESENTATIONS.
a. This Agreement may be amended in writing if authorized by the
respective Boards of Directors. The Agreement may be so amended at
any time before or after the shareholder approval contemplated by
paragraph 1 is obtained.
b. At any time prior to the Closing, any of the parties may waive in
writing (i) any inaccuracies in the representations and warranties
made to it and (ii) compliance with any of the covenants or
conditions made for its benefit.
c. Each party hereto may terminate this Agreement at any time prior to
the Closing by notice to the other party if a material condition to
its performance or a material covenant of the other party is not
fulfilled on or before the date specified for its fulfillment or a
material breach of this Agreement is made by the other party and is
not cured.
d. This Agreement may be terminated by any party at any time prior to
the Closing, whether before or after approval by the shareholders of
each Selling Fund, without any liability on the part of any party or
its respective directors, officers, or shareholders, on written
notice to the other party, and shall be terminated without liability
as of the close of business on April 30, 2010, or a later date
agreed upon by the officers of the Selling Corporation and the
Buying Corporation, if the Closing is not effected on or prior to
that date.
e. The representations, warranties and covenants contained in this
Agreement, or in any document delivered in connection with this
Agreement, will survive the Reorganization.
11. EXPENSES. All fees paid to governmental authorities for the registration
or qualification of the acquisition shares and all transfer agency costs
related to the acquisition shares shall be borne by the relevant Buying
Fund. Certain non-recurring Reorganization costs and related
Reorganization expenses may be borne by a Selling Fund to the extent the
Reorganization is expected to result in a reduction to the expense ratio
for such Selling Fund. Reorganization costs and related Reorganization
expenses include (i) legal and auditor or accounting fees ("Professional
Fees") associated with the preparation and filing of the proxy
statement/prospectus and (ii) expenses associated with the printing and
mailing of any shareholder communications, including the proxy
statement/prospectus that forms a part of the Registration Statement, and
fees and expenses of any proxy solicitation firm retained in connection
with the Reorganization ("Proxy Vendor Expenses"). Professional Fees shall
be allocated among each Selling Fund on an equal weighted basis regardless
of asset size or number of accounts. Proxy Vendor Expenses shall be
allocated among the Selling Funds based on number of shareholder
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accounts. Notwithstanding the foregoing, the fees and expenses borne by
any Selling Fund will not exceed the excess of (i) the total anticipated
reduction in fees and expenses expected to be borne by such Selling Fund
over the first twelve months following its Reorganization over (ii) the
cost expected to be borne by such Selling Fund related to the
discontinuance of operations of Xxxxxxxx Data Corp. Any fees and expenses
that would have been eligible to be borne by a Selling Fund but for the
preceding sentence and all other Reorganization related costs and expenses
will be borne by RiverSource Investments, LLC. Each Selling Fund will bear
the full cost of any brokerage or other transaction costs associated with
the sale or purchase of portfolio securities in connection with its
Reorganization. Should any Reorganization fail to occur, RiverSource
Investments, LLC will bear all costs associated with the Reorganization.
12. GENERAL.
a. Headings. The headings contained in this Agreement are for reference
purposes only and will not affect the meaning or interpretation of
this Agreement. Nothing in this Agreement is intended to confer upon
any other person any rights or remedies by reason of this Agreement.
b. Governing Law. This Agreement will be governed by the laws of the
state of Minnesota.
IN WITNESS WHEREOF, each of the parties, individually and not jointly, has
caused this Agreement to be signed.
XXXXXXXX ASSET ALLOCATION SERIES, INC., on behalf of
Xxxxxxxx Asset Allocation Aggressive Growth Fund
Xxxxxxxx Asset Allocation Balanced Fund
Xxxxxxxx Asset Allocation Growth Fund
Xxxxxxxx Asset Allocation Moderate Growth Fund
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: President
RIVERSOURCE MARKET ADVANTAGE SERIES, INC., on behalf of
RiverSource Portfolio Builder Aggressive Fund
RiverSource Portfolio Builder Moderate Aggressive Fund
RiverSource Portfolio Builder Total Equity Fund
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
The undersigned is a party to this Agreement for the purposes of Section 3c and
11 only.
RIVERSOURCE INVESTMENTS, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
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SCHEDULE A
SELLING ENTITY SELLING FUND BUYING ENTITY BUYING FUND
Xxxxxxxx Asset Allocation RiverSource Portfolio
Aggressive Growth Fund Builder Total Equity Fund
Xxxxxxxx Asset Allocation RiverSource Portfolio
Growth Fund Builder Total Equity Fund
Xxxxxxxx Asset RiverSource Market
Allocation Series, Inc. Xxxxxxxx Asset Allocation Advantage Series, Inc. RiverSource Portfolio
Moderate Growth Builder Aggressive Fund Fund
Xxxxxxxx Asset Allocation RiverSource Portfolio
Balanced Fund Builder Moderate Aggressive Fund
