Item 77Q1(g)
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION dated as
of March 27, 2008, is by and among each of the trust and
corporation identified in Schedule A hereto as an Acquired
Company (each an "Acquired Company"), on behalf of each series
thereof identified in Schedule A hereto as an Acquired Fund
(each an "Acquired Fund"), Columbia Funds Series Trust I (the
"Acquiring Trust"), on behalf of each series thereof identified
in Schedule A hereto as an Acquiring Fund (each an "Acquiring
Fund"); and Columbia Management Advisors, LLC (the "Adviser").
This Agreement shall be treated as if each reorganization
between an Acquired Fund and its corresponding Acquiring Fund
contemplated hereby had been the subject of a separate agreement.
This Agreement is intended to be and is adopted as a
plan of reorganization and liquidation within the meaning of
Section 361(a) and Section 368(a) of the United States Internal
Revenue Code of 1986, as amended (the "Code"), and any successor
provision. The reorganization will consist of the transfer of
all of the assets of each Acquired Fund attributable to each
class of its shares in exchange for shares of the corresponding
class of shares of the corresponding Acquiring Fund (the
"Acquisition Shares"), and the assumption by each Acquiring Fund
of the liabilities of the corresponding Acquired Fund and the
distribution of the Acquisition Shares to the relevant shareholders
of such Acquired Fund in liquidation of such Acquired Fund, all
upon the terms and conditions set forth in this Agreement.
In consideration of the premises and of the covenants and
agreements hereinafter set forth, the parties hereto covenant and
agree as follows:
1. TRANSFER OF ASSETS OF EACH ACQUIRED FUND IN EXCHANGE FOR
ASSUMPTION OF LIABILITIES AND ACQUISITION SHARES AND LIQUIDATION
OF SUCH ACQUIRED FUND.
1.1. Subject to the terms and conditions herein set forth and
on the basis of the representations and warranties contained herein,
(a) Each Acquired Fund will transfer and deliver to the
corresponding Acquiring Fund, and each such Acquiring Fund will
acquire, all the assets of such Acquired Fund as set forth
in paragraph 1.2;
(b) Each Acquiring Fund will assume all of the corresponding
Acquired Fund's liabilities and obligations of any kind whatsoever,
whether absolute, accrued, contingent or otherwise, in existence
on the Closing Date (as defined in paragraph 1.2 hereof) (the
"Obligations"); and
(c) Each Acquiring Fund will issue and deliver to the
corresponding Acquired Fund in exchange for the net assets
attributable to each class of its shares a number of Acquisition
Shares of the corresponding class equal in value to the net
assets of such class of the corresponding Acquired Fund, each
determined as of the close of business on the Valuation Date
(as defined in paragraph 2.1). Such transactions shall take
place at the closing provided for in paragraph 3.1 (the
"Closing").
1.2. The assets of each Acquired Fund to be acquired by the
corresponding Acquiring Fund shall consist of all cash, securities,
dividends and interest receivable, receivables for shares sold
and all other assets which are owned by the Acquired Fund on the
closing date provided in paragraph 3.1 (the "Closing Date") and any
deferred expenses, other than unamortized organizational expenses,
shown as an asset on the books of such Acquired Fund on the Closing
Date. Each Acquiring Fund agrees that all rights to indemnification
and all limitations of liability existing in favor of the Acquired
Company's current and former trustees/directors and officers, acting
in their capacities as such, under the Acquired Company's
organizational documents as in effect as of the date of this
Agreement or under any other agreement of the Acquired Fund shall
survive the reorganization as obligations of the Acquiring Trust, on
behalf of the Acquiring Fund, and shall continue in full force and
effect, without any amendment thereto, and shall constitute rights
which may be asserted against the Acquiring Trust, on behalf of the
Acquiring Fund, its successors or assigns.
1.3. As provided in paragraph 3.4, on the Closing Date, or as soon
thereafter as is conveniently practicable (the "Liquidation Date"), each
Acquired Fund will liquidate and distribute pro rata to its shareholders
of record of each class of shares, determined as of the close of business
on the Valuation Date (as defined in paragraph 2.1), the Acquisition
Shares of the relevant class received from the corresponding Acquiring
Fund pursuant to paragraph 1.1. Such liquidation and distribution will
be accomplished by the transfer of the Acquisition Shares then credited
to the account of each Acquired Fund on the books of the corresponding
Acquiring Fund to open accounts on the share records of the corresponding
Acquiring Fund in the names of such Acquired Fund's shareholders and
representing the respective pro rata number of Acquisition Shares due
such shareholders. The corresponding Acquiring Fund shall not be
obligated to issue certificates representing Acquisition Shares in
connection with such exchange.
1.4. With respect to Acquisition Shares distributable pursuant to
paragraph 1.3 to an Acquired Fund shareholder holding a certificate or
certificates for shares of such Acquired Fund, if any, on the
Valuation Date, such Acquired Fund will not permit such shareholder
to receive Acquisition Share certificates therefor, to exchange such
Acquisition Shares for shares of other investment companies, to effect
an account transfer of such Acquisition Shares, or to pledge or redeem
such Acquisition Shares until such shareholder has surrendered all his
or her outstanding certificates for Acquired Fund shares or, in the
event of lost certificates, posted adequate bond.
1.5. If applicable, as soon as practicable after the Closing Date,
each Acquired Company shall file an application pursuant to Section
8(f) of the Investment Company Act of 1940, as amended (the "1940
Act"), for an order declaring that it has ceased to be an investment
company and, upon receipt of such order, shall make all filings and
take all other steps as shall be necessary and proper to effect its
complete termination under applicable state law. After the Closing
Date, no Acquired Fund shall conduct any business except in
connection with its liquidation, deregistration (if applicable) and
termination.
2. VALUATION.
2.1. The value of each Acquired Fund's assets to be acquired by
the corresponding Acquiring Fund hereunder shall be the value of such
assets computed as of the close of regular trading on the New York
Stock Exchange on the business day next preceding the Closing (such
time and date being herein called the "Valuation Date") using the
valuation procedures set forth in the organizational documents of
the corresponding Acquiring Fund and the then current prospectus or
prospectuses or statement or statements of additional information
of the corresponding Acquiring Fund (collectively, as amended or
supplemented from time to time, the "Acquiring Fund Prospectus")
for determining net asset value, and shall be certified by such
Acquired Fund.
2.2. Reserved.
3. CLOSING AND CLOSING DATE.
3.1. The Closing Date shall be on March 31, 2008, or on such
other date as the parties may agree. The Closing shall be held at
10:00 a.m. at the Adviser's offices, Xxx Xxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (or such other place as the parties may agree),
at such time as the parties may agree.
3.2. The portfolio securities of each Acquired Fund shall be made
available by such Acquired Fund to the custodian for the
corresponding Acquiring Fund (the "Custodian") for examination no
later than the fifth business day preceding the Valuation Date. On
the Closing Date, such portfolio securities and all such Acquired
Fund's cash shall be delivered by such Acquired Fund to the Custodian
for the account of the corresponding Acquiring Fund, such portfolio
securities to be duly endorsed in proper form for transfer in such
manner and condition as to constitute good delivery thereof in
accordance with the custom of brokers or, in the case of portfolio
securities held in the U.S. Treasury Department's book-entry system
or by the Depository Trust Company, Participants Trust Company or
other third party depositories, by transfer to the account of the
Custodian in accordance with Rule 17f-4, Rule 17f-5 or Rule 17f-7,
as the case may be, under the 1940 Act and accompanied by all
necessary federal and state stock transfer stamps or a check for
the appropriate purchase price thereof. The cash delivered shall
be in the form of currency or certified or official bank checks,
payable to the order of "State Street Bank and Trust Company,
custodian for corresponding Acquiring Fund."
3.3. In the event that on the Valuation Date (a) the New York
Stock Exchange shall be closed to trading or trading thereon
shall be restricted, or (b) trading or the reporting of trading
on the New York Stock Exchange or elsewhere shall be disrupted
so that accurate appraisal of the value of the net assets of
each Acquired Fund or of the corresponding Acquiring Fund is
impracticable, the Closing Date shall be postponed until the
first business day after the day when trading shall have
been fully resumed and reporting shall have been restored;
provided that if trading shall not be fully resumed and
reporting restored within three business days of the Valuation
Date, this Agreement may be terminated by either an Acquired
Fund or the corresponding Acquiring Fund upon the giving of
written notice to the other party.
3.4. At the Closing, each Acquired Fund or its transfer
agent shall deliver to the corresponding Acquiring Fund or
its designated agent a list of the names and addresses of
such Acquired Fund's shareholders and the number of outstanding
shares of each class of such Acquired Fund owned by each such
shareholder, all as of the close of business on the Valuation
Date, certified by any Vice President, Secretary or Assistant
Secretary of such Acquired Fund. The Acquiring Trust will
provide to each Acquired Fund evidence satisfactory to such
Acquired Fund that the Acquisition Shares issuable pursuant
to paragraph 1.1(c) have been credited to such Acquired Fund's
account on the books of the corresponding Acquiring Fund. On
the Liquidation Date, each Acquiring Fund will provide to the
corresponding Acquired Fund evidence satisfactory to the
corresponding Acquired Fund that such Acquisition Shares have
been credited pro rata to open accounts in the names of the
corresponding Acquired Fund's shareholders as provided in
paragraph 1.3.
3.5. At the Closing, each party shall deliver to the other
such bills of sale, instruments of assumption of liabilities,
checks, assignments, stock certificates, receipts or other
documents as such other party or its counsel may reasonably
request in connection with the transfer of assets, assumption
of liabilities and liquidation contemplated by paragraph 1.
4. REPRESENTATIONS AND WARRANTIES.
4.1. Each Acquired Fund represents and warrants the following
to the corresponding Acquiring Fund as of the date hereof and
agrees to confirm the continuing accuracy and completeness in
all material respects of the following on the Closing Date:
(a) The Acquired Fund is either (i) a series of an Acquired
Company that is duly organized, validly existing and in good
standing under the laws of the State of Delaware or (ii) a
series of an Acquired Company that is duly organized, validly
existing and in good standing under the laws of the State of
Maryland, as applicable;
(b) Each Acquired Company, of which each Acquired Fund is a
series thereof, is a duly registered investment company
classified as a management company of the open-end type and its
registration with the Securities and Exchange Commission as an
investment company under the 1940 Act is in full force and effect,
and the Acquired Fund is a separate series thereof duly designated
in accordance with the applicable provisions of the Declaration of
Trust or Articles of Incorporation, as applicable, of the
applicable Acquired Company and the 1940 Act;
(c) The Acquired Fund is not in violation in any material
respect of any provision of its organizational documents or of
any agreement, indenture, instrument, contract, lease or other
undertaking to which the Acquired Fund is a party or by which
the Acquired Fund is bound, and the execution, delivery and
performance of this Agreement will not result in any such
violation;
(d) The Acquired Fund has no material contracts or other
commitments (other than this Agreement and such other contracts
as may be entered into in the ordinary course of its business)
which if terminated may result in material liability to the
Acquired Fund or under which (whether or not terminated) any
material payments for periods subsequent to the Closing Date
will be due from the Acquired Fund;
(e) To the knowledge of the Acquired Fund, except as has
been disclosed in writing to the corresponding Acquiring Fund,
no litigation or administrative proceeding or investigation
of or before any court or governmental body is presently
pending or threatened as to the Acquired Fund, any of its
properties or assets, or any person whom the Acquired Fund
may be obligated to indemnify in connection with such
litigation, proceeding or investigation, and the Acquired Fund
is not a party to or subject to the provisions of any order,
decree or judgment of any court or governmental body, which
materially and adversely affects its business or its ability
to consummate the transactions contemplated hereby;
(f) The statement of assets and liabilities, the statement
of operations, the statement of changes in net assets, and the
schedule of investments of the Acquired Fund, as of and for
its most recently completed fiscal year, audited by
PricewaterhouseCoopers LLP (and, if applicable, the unaudited
statement of assets and liabilities, statement of operations,
statement of changes in net assets and schedule of investments
for any subsequent semiannual period following the most recently
completed fiscal year), copies of which have been furnished to
the corresponding Acquiring Fund, fairly reflect the financial
condition and results of operations of the Acquired Fund as of
such dates and for the periods then ended in accordance with
generally accepted accounting principles consistently applied,
and the Acquired Fund has no known liabilities of a material
amount, contingent or otherwise, other than those shown on the
statements of assets and liabilities referred to above or those
incurred in the ordinary course of its business since the date
of the Acquired Fund's most recently completed fiscal year;
(g) Since the date of the Acquired Fund's most recently
completed fiscal year, there has not been any material adverse
change in the Acquired Fund's financial condition, assets,
liabilities or business (other than changes occurring in the
ordinary course of business), or any incurrence by the Acquired
Fund of indebtedness, except as disclosed in writing to the
corresponding Acquiring Fund. For the purposes of this
subparagraph (g), distributions of net investment income and
net realized capital gains, changes in portfolio securities,
changes in the market value of portfolio securities and net
redemptions shall be deemed to be in the ordinary course
of business;
(h) As of the Closing Date, all federal and other tax
returns and reports of the Acquired Fund required by law to
have been filed by such date (giving effect to extensions)
shall have been filed, and all federal and other taxes shown
to be due on such returns and reports or on any assessment
received shall have been paid, or provisions shall have been
made for the payment thereof, except for amounts that alone
and in the aggregate would not reasonably be expected to have
a material adverse effect. All of the Acquired Fund's tax
liabilities will have been adequately provided for on its
books. To the best of the Acquired Fund's knowledge, it will
not have had any tax deficiency or liability asserted against
it or question with respect thereto raised, and it will not
be under audit by the Internal Revenue Service or by any
state or local tax authority for taxes in excess of those
already paid;
(i) The Acquired Fund meets the requirements of subchapter
M of the Code for treatment as a "regulated investment company"
within the meaning of Section 851 of the Code, and will continue
meeting such requirements at all times through the Closing Date.
The Acquired Fund has not at any time since its inception been
liable for nor is now liable for any material income or excise
tax pursuant to Section 852 or 4982 of the Code. The Acquired
Fund is in compliance in all material respects with applicable
regulations of the Internal Revenue Service pertaining to the
reporting of dividends and other distributions on and
redemptions of its capital stock and to withholding in respect
of dividends and other distributions to shareholders, and is not
liable for any material penalties which could be imposed
thereunder;
(j) All issued and outstanding shares of the Acquired Fund
are, and at the Closing Date will be, duly and validly issued
and outstanding, fully paid and non-assessable (except as set
forth in the Acquired Fund's then current prospectus or
prospectuses or statement or statements of additional
information (collectively, as amended or supplemented from
time to time, the "Acquired Fund Prospectus")) by the
applicable Acquired Company and will have been issued in
compliance with all applicable registration or qualification
requirements of federal and state securities laws. No options,
warrants or other rights to subscribe for or purchase, or
securities convertible into, any shares of the Acquired Fund
are outstanding and none will be outstanding on the Closing
Date;
(k) The Acquired Fund's investment operations from inception
to the date hereof have been in compliance in all material
respects with the investment policies and investment restrictions
set forth in the Acquired Fund Prospectus, except as previously
disclosed in writing to the corresponding Acquiring Fund;
(l) The execution, delivery and performance of this Agreement
has been duly authorized by the trustees/directors of the Acquired
Company, upon approval thereof by the required majority of the
shareholders of the Acquired Fund and assuming the due
authorization, execution and delivery of this Agreement by the
Acquiring Trust and Columbia, this Agreement will constitute the
valid and binding obligation of the Acquired Fund enforceable in
accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and other
equitable principles;
(m) The Acquisition Shares to be issued to the Acquired Fund
pursuant to paragraph 1 will not be acquired for the purpose of
making any distribution thereof other than to the Acquired Fund's
shareholders as provided in paragraph 1.3;
(n) The information provided by the Acquired Fund for use in
the Registration Statement and Prospectus/Proxy Statement referred
to in paragraph 5.3 shall be accurate and complete in all material
respects an shall comply with federal securities and other laws
and regulations as applicable thereto;
(o) No consent, approval, authorization or order of any court
or governmental authority is required for the consummation by the
Acquired Fund of the transactions contemplated by this Agreement,
except such as may be required under the Securities Act of 1933,
as amended (the "1933 Act"), the Securities Exchange Act of 1934,
as amended (the "1934 Act"), the 1940 Act and state securities or
"Blue Sky" laws (which terms used herein shall include the laws
of the District of Columbia and of Puerto Rico);
(p) At the Closing Date, the Acquired Fund will have good and
marketable title to its assets to be transferred to the
corresponding Acquiring Fund pursuant to paragraph 1.1 and will
have full right, power and authority to sell, assign, transfer
and deliver the Investments (as defined below) and any other
assets and liabilities of the Acquired Fund to be transferred to
the corresponding Acquiring Fund pursuant to this Agreement. At
the Closing Date, subject only to the delivery of the Investments
and any such other assets and liabilities and payment therefor
as contemplated by this Agreement, the corresponding Acquiring
Fund will acquire good and marketable title thereto and will
acquire the Investments and any such other assets and liabilities
subject to no encumbrances, liens or security interests whatsoever
and without any restrictions upon the transfer thereof, except as
previously disclosed to the corresponding Acquiring Fund. As used
in this Agreement, the term "Investments" shall mean the Acquired
Fund's investments shown on the schedule of its investments as of
the date of its most recently completed fiscal year, referred to
in subparagraph 4.1(f) hereof, as supplemented with such changes
in the portfolio as the Acquired Fund shall make, and changes
resulting from stock dividends, stock split-ups, mergers and
similar corporate actions through the Closing Date;
(q) Reserved; and
(r) No registration of any of the Investments would be
required if they were, as of the time of such transfer, the
subject of a public distribution by either of the corresponding
Acquiring Fund or the Acquired Fund, except as previously
disclosed by the Acquired Fund to the corresponding Acquiring Fund.
4.2. Each Acquiring Fund represents and warrants the following
to the corresponding Acquired Fund as of the date hereof and agrees
to confirm the continuing accuracy and completeness in all material
respects of the following on the Closing Date:
(a) The Acquiring Fund is a series of the Acquiring Trust, which
is duly organized, validly existing and in good standing under the
laws of The Commonwealth of Massachusetts;
(b) The Acquiring Trust is a duly registered investment company
classified as a management company of the open-end type and its
registration with the Securities and Exchange Commission as an
investment company under the 1940 Act is in full force and effect,
and the Acquiring Fund is a separate series thereof duly designated
in accordance with the applicable provisions of the Declaration of
Trust of the Acquiring Trust and the 1940 Act;
(c) At the Closing Date, the Acquiring Fund Prospectus will
conform in all material respects to the applicable requirements of
the 1933 Act and the rules and regulations of the Securities and
Exchange Commission thereunder and will not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading, and there will be no material contracts to which
the Acquiring Fund is a party that are not referred to in such
Prospectus or in the registration statement of which it is a part;
(d) At the Closing Date, the Acquiring Fund will have good and
marketable title to its assets;
(e) The Acquiring Fund is not in violation in any material
respect of any provisions of its organizational documents or of
any agreement, indenture, instrument, contract, lease or other
undertaking to which the Acquiring Fund is a party or by which the
Acquiring Fund is bound, and the execution, delivery and performance
of this Agreement will not result in any such violation;
(f) To the knowledge of the Acquiring Fund, except as has been
disclosed in writing to the Acquired Fund, no litigation or
administrative proceeding or investigation of or before any court
or governmental body is presently pending or threatened as to the
Acquiring Fund, any of its properties or assets, or any person whom
the Acquiring Fund may be obligated to indemnify in connection with
such litigation, proceeding or investigation, and the Acquiring Fund
is not a party to or subject to the provisions of any order, decree
or judgment of any court or governmental body which materially and
adversely affects its business or its ability to consummate the
transactions contemplated hereby;
(g) Reserved;
(h) Reserved;
(i) As of the Closing Date, the Acquiring Fund shall have not been
required by law to have filed any federal or other tax returns or
reports. All of the Acquiring Fund's tax liabilities, if any, will
have been adequately provided for on its books. To the best of the
Acquiring Fund's knowledge, it will not have had any tax deficiency
or liability asserted against it or question with respect thereto
raised, and it will not be under audit by the Internal Revenue Service
or by any state or local tax authority for taxes in excess of those
already paid;
(j) The Acquiring Fund was established by the trustees of the
Acquiring Trust in order to effect the transactions described in this
Agreement. It has not yet filed its first federal income tax return
and, thus, has not yet elected to be treated as a "regulated investment
company" for federal income tax purposes. However, upon filing its
first income tax return at the completion of its first taxable year,
the Acquiring Fund will elect to be a "regulated investment company"
and until such time will take all steps necessary to ensure that it
qualifies for taxation as a "regulated investment company" under
Sections 851 and 852 of the Code;
(k) The Acquiring Fund has no shares of beneficial interest issued
and outstanding;
(l) Reserved;
(m) The execution, delivery and performance of this Agreement have
been duly authorized by all necessary action on the part of the
Acquiring Fund, and assuming the due authorization, execution and
delivery of this Agreement by the Acquired Company and Columbia, this
Agreement constitutes the valid and binding obligation of the Acquiring
Fund enforceable in accordance with its terms, except as the same may
be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally and other
equitable principles;
(n) The Acquisition Shares to be issued and delivered to the
corresponding Acquired Fund pursuant to the terms of this Agreement will
at the Closing Date have been duly authorized and, when so issued and
delivered, will be duly and validly issued shares of the Acquiring Fund,
and will be fully paid and non-assessable (except as set forth in the
Acquiring Fund Prospectus) by the Acquiring Fund, and no shareholder of
the Acquiring Fund will have any preemptive right of subscription or
purchase in respect thereof;
(o) The information provided by the Acquiring Fund for use in the
Registration Statement and Prospectus/Proxy Statement referred to in
paragraph 5.3 shall be accurate and complete in all material respects
an shall comply with federal securities and other laws and regulations
as applicable thereto; and
(p) No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by the
Acquiring Fund of the transactions contemplated by this Agreement, except
such as may be required under the 1933 Act, the 1934 Act, the 1940 Act
and state securities or "Blue Sky" laws (which terms as used herein
shall include the laws of the District of Columbia and of Puerto Rico).
5. COVENANTS OF EACH ACQUIRED FUND AND THE CORRESPONDING ACQUIRING
FUND.
Each Acquired Fund and each corresponding Acquiring Fund hereby covenants
and agrees with the other as follows:
5.1. The corresponding Acquiring Fund and the Acquired Fund will each
operate its business in the ordinary course between the date hereof and
the Closing Date, it being understood that such ordinary course of
business will include regular and customary periodic dividends and
distributions.
5.2. Each Acquired Fund will call a meeting of its shareholders to be
held prior to the Closing Date to consider and to act upon this Agreement
and to take all other reasonable action necessary to obtain the required
shareholder approval of the transactions contemplated hereby.
5.3. In connection with each Acquired Fund shareholders' meeting
referred to in paragraph 5.2, the corresponding Acquiring Fund will
prepare a prospectus/proxy statement (the "Prospectus/Proxy Statement")
for such meeting, to be included in a Registration Statement on Form N-14
(the "Registration Statement"), which the corresponding Acquiring Fund
will prepare and file for registration under the 1933 Act of the
Acquisition Shares to be distributed to each Acquired Fund's shareholders
pursuant hereto, all in compliance with the applicable requirements of
the 1933 Act, the Securities Exchange Act of 1934, as amended, and the
1940 Act.
5.4. The information to be furnished by each Acquired Fund for use in
the Registration Statement and the information to be furnished by the
corresponding Acquiring Fund for use in the Prospectus/Proxy Statement,
each as referred to in paragraph 5.3, shall be accurate and complete
in all material respects and shall comply with federal securities and
other laws and regulations thereunder applicable thereto.
5.5. The corresponding Acquiring Fund will advise the Acquired Fund
promptly if at any time prior to the Closing Date the assets of such
Acquired Fund include any securities that the corresponding Acquiring
Fund is not permitted to acquire.
5.6. Subject to the provisions of this Agreement, the Acquired Fund
and the corresponding Acquiring Fund will each take, or cause to be
taken, all action, and do, or cause to be done, all things reasonably
necessary, proper or advisable to cause the conditions to the other
party's obligations to consummate the transactions contemplated hereby
to be met or fulfilled and otherwise to consummate and make effective
such transactions.
5.7. The corresponding Acquiring Fund will use all reasonable efforts
to obtain the approvals and authorizations required by the 1933 Act, the
1940 Act and such of the state securities or "Blue Sky" laws as it may
deem appropriate in order to continue its operations after the Closing
Date.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH ACQUIRED FUND.
The obligation of each Acquired Fund to consummate the transactions
provided for herein shall be subject, at its election, to the performance
by the corresponding Acquiring Fund of all the obligations to be performed
by it hereunder on or before the Closing Date and, in addition thereto,
to the following further conditions:
6.1. The corresponding Acquiring Fund shall have delivered to the
Acquired Fund a certificate executed in its name by its President or a
Vice President and its Treasurer or an Assistant Treasurer, in form and
substance satisfactory to the Acquired Fund and dated as of the Closing
Date, to the effect that the representations and warranties of the
corresponding Acquiring Fund made in this Agreement are true and correct
at and as of the Closing Date, except as they may be affected by the
transactions contemplated by this Agreement, and that the corresponding
Acquiring Fund has complied with all the covenants and agreements and
satisfied all of the conditions on its part to be performed or satisfied
under this Agreement at or prior to the Closing Date.
6.2. The Acquired Fund shall have received a favorable opinion of
Ropes & Xxxx LLP, dated the Closing Date and in a form satisfactory to
the Acquired Fund, to the following effect:
(a) The Acquiring Trust is duly organized and validly existing under
the laws of The Commonwealth of Massachusetts and has power to own all
of its properties and assets and to carry on its business as presently
conducted, and the corresponding Acquiring Fund is a separate series
thereof duly constituted in accordance with the applicable provisions of
the 1940 Act and the Declaration of Trust and Bylaws of the Acquiring
Trust;
(b) This Agreement has been duly authorized, executed and delivered
on behalf of the corresponding Acquiring Fund and, assuming the
Registration Statement and Prospectus/Proxy Statement referred to in
paragraph 5.3 comply with applicable federal securities laws and assuming
the due authorization, execution and delivery of this Agreement by the
Acquired Fund and Columbia, is the valid and binding obligation of the
corresponding Acquiring Fund, enforceable against the corresponding
Acquiring Fund in accordance with its terms, except as the same may
be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally and
other equitable principles;
(c) The corresponding Acquiring Fund has the power to assume the
liabilities to be assumed by it hereunder and, upon consummation of
the transactions contemplated hereby, the corresponding Acquiring
Fund will have duly assumed such liabilities;
(d) The Acquisition Shares to be issued for transfer to the
Acquired Fund's shareholders as provided by this Agreement are duly
authorized and upon such transfer and delivery will be validly
issued and outstanding and fully paid and nonassessable shares in
the corresponding Acquiring Fund, and no shareholder of the
corresponding Acquiring Fund has any preemptive right of
subscription or purchase in respect thereof;
(e) The execution and delivery of this Agreement did not, and
the performance by the corresponding Acquiring Fund of its
obligations hereunder will not, violate the corresponding Acquiring
Fund's organizational documents, or any provision of any agreement
known to such counsel to which the corresponding Acquiring Fund is
a party or by which it is bound or, to the knowledge of such
counsel, result in the acceleration of any obligation or the
imposition of any penalty under any agreement, judgment, or
decree to which such Acquiring Fund is a party or by which it
is bound;
(f) To the knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority
is required for the consummation by the corresponding Acquiring
Fund of the transactions contemplated by this Agreement except
such as may be required under state securities or "Blue Sky"
laws or such as have been obtained;
(g) Such counsel does not know of any legal or governmental
proceedings relating to the Acquiring Fund existing on or before
the date of mailing of the Prospectus/Proxy Statement referred to
in paragraph 5.3 or the Closing Date required to be described in
the Registration Statement that are not described as required;
(h) The Acquiring Trust is registered with the Securities
and Exchange Commission as an investment company under the 1940
Act;
(i) To the knowledge of such counsel, except as has been
disclosed in writing to the Acquired Fund or disclosed in the
Prospectus/Proxy Statement referred to in paragraph 5.3, no
litigation or administrative proceeding or investigation of or
before any court or governmental body is presently pending or
threatened as to the corresponding Acquiring Fund or any of its
properties or assets or any person whom the Acquired Fund may be
obligated to indemnify in connection with such litigation,
proceeding or investigation, and the corresponding Acquiring
Fund is not a party to or subject to the provisions of any
order, decree or judgment of any court or governmental body,
which materially and adversely affects its business or its ability
to consummate the transaction contemplated hereby; and
(j) The Registration Statement has become effective under the
1933 Act and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act and no proceedings for that
purpose have been instituted or threatened by the Securities and
Exchange Commission. Such counsel may rely on certificates of
officers or trustees of the Acquiring Trust.
6.3. For the period beginning at the Closing Date of the last
reorganization of any series for each Acquired Company and ending
not less than six years thereafter, Columbia, its successors and
assigns, shall provide, or cause to be provided, liability coverage
at least comparable to the liability coverage currently applicable
to both former and current directors and officers of such
Acquired Company as of the date of this Agreement, covering the
actions of such directors and officers of such Acquired Company for
the period they served as such. Any related costs or expenses shall
be borne by the applicable Acquired Company.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH ACQUIRING FUND.
The obligations of each Acquiring Fund to complete the transactions
provided for herein shall be subject, at its election, to the
performance by the corresponding Acquired Fund of all the
obligations to be performed by it hereunder on or before the
Closing Date and, in addition thereto, to the following further
conditions:
7.1. The corresponding Acquired Fund shall have delivered to the
Acquiring Fund a certificate executed in its name by its President
or a Vice President and its Treasurer or an Assistant Treasurer, in
form and substance satisfactory to the Acquiring Fund and dated as
of the Closing Date, to the effect that the representations and
warranties of the corresponding Acquired Fund made in this Agreement
are true and correct at and as of the Closing Date, except as they
may be affected by the transactions contemplated by this Agreement,
and that the corresponding Acquired Fund has complied with all the
covenants and agreements and satisfied all of the conditions on its
part to be performed or satisfied under this Agreement at or prior
to the Closing Date.
7.2. The Acquiring Fund shall have received a favorable opinion
of Xxxxxx, Xxxxx & Xxxxxxx LLP, dated the Closing Date and in a form
satisfactory to the Acquiring Fund, to the following effect:
(a) The applicable Acquired Company (i) is either (A) duly
organized and validly existing under the laws of the State of
Maryland or (B) duly organized and validly existing under the laws
of the State of Delaware and (ii) has power to own all of its
properties and assets and to carry on its business as presently
conducted, and the corresponding Acquired Fund is a separate series
thereof duly constituted in accordance with the applicable provisions
of the 1940 Act and the Declaration of Trust/Articles of
Incorporation and Bylaws of the Acquired Company;
(b) This Agreement has been duly authorized, executed and
delivered on behalf of the corresponding Acquired Fund and, assuming
the Registration Statement and Prospectus/Proxy Statement referred
to in paragraph 5.3 comply with applicable federal securities laws
and assuming the due authorization, execution and delivery of this
Agreement by the Acquiring Fund and Columbia, is the valid and
binding obligation of the corresponding Acquired Fund enforceable
against the corresponding Acquired Fund in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally and other equitable principles;
(c) The corresponding Acquired Fund has the power to sell,
assign, transfer and deliver the assets to be transferred by it
hereunder, and, upon consummation of the transactions contemplated
hereby, the corresponding Acquired Fund will have duly transferred
such assets to the Acquiring Fund;
(d) The execution and delivery of this Agreement did not, and
the performance by the corresponding Acquired Fund of its
respective obligations hereunder will not, violate the corresponding
Acquired Fund's organizational documents or any provision of any
agreement known to such counsel to which the corresponding Acquired
Fund is a party or by which it is bound or, to the knowledge of
such counsel, result in the acceleration of any obligation or the
imposition of any penalty under any agreement, judgment, or decree
to which the corresponding Acquired Fund is a party or by which it
is bound;
(e) To the knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority is
required for the consummation by the corresponding Acquired Fund
of the transactions contemplated by this Agreement, except such as
have been obtained;
(f) Such counsel does not know of any legal or governmental
proceedings relating to the corresponding Acquired Fund existing
on or before the date of mailing of the Prospectus/Proxy Statement
referred to in paragraph 5.3 or the Closing Date required to be
described in the Prospectus/Proxy Statement that are not described
as required;
(g) The applicable Acquired Company is registered with the
Securities and Exchange Commission as an investment company under
the 1940 Act; and
(h) To the knowledge of such counsel, except as has been
disclosed in writing to the Acquiring Fund or disclosed in the
Prospectus/Proxy Statement referred to in paragraph 5.3, no
litigation or administrative proceeding or investigation of or
before any court or governmental body is presently pending or
threatened as to the corresponding Acquired Fund or any of its
properties or assets or any person whom the Acquiring Fund may be
obligated to indemnify in connection with such litigation,
proceeding or investigation, and the corresponding Acquired Fund
is not a party to or subject to the provisions of any order,
decree or judgment of any court or governmental body, which
materially and adversely affects its business or its ability
to consummate the transaction contemplated thereby.
Such counsel may rely as to matters governed by the laws of
The Commonwealth of Massachusetts on an opinion of local counsel
and/or certificates of officers or trustees of the Acquired Company.
7.3. Reserved.
7.4. The custodian shall have delivered to the Acquiring Fund
a certificate identifying all of the assets of the corresponding
Acquired Fund held by the Custodian as of the Valuation Date.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH ACQUIRING
FUND AND THE CORRESPONDING ACQUIRED FUND.
The respective obligations of each Acquired Fund and the corresponding
Acquiring Fund hereunder are each subject to the further conditions
that on or before the Closing Date:
8.1. This Agreement and the transactions contemplated herein shall
have received all necessary shareholder approvals at the meeting of
shareholders of each Acquired Fund referred to in paragraph 5.2.
8.2. On the Closing Date, no action, suit or other proceeding shall
be pending before any court or governmental agency in which it is
sought to restrain or prohibit, or obtain damages or other relief
in connection with, this Agreement or the transactions contemplated
hereby. On the Closing Date, the Securities and Exchange Commission
will not have issued an unfavorable report under Section 25(b) of the
1940 Act, nor instituted any proceeding seeking to enjoin the
consummation of the transactions contemplated by this Agreement under
Section 25(c) of the 1940 Act.
8.3. All consents of other parties and all other consents, orders
and permits of federal, state and local regulatory authorities (including
those of the Securities and Exchange Commission and of state "Blue Sky"
and securities authorities) deemed necessary by the Acquired Fund or
the corresponding Acquiring Fund to permit consummation, in all material
respects, of the transactions contemplated hereby shall have been
obtained, except where failure to obtain any such consent, order or
permit would not involve a risk of a material adverse effect on the
assets or properties of the Acquired Fund or the corresponding Acquiring
Fund.
8.4. The Registration Statement shall have become effective under
the 1933 Act and no stop order suspending the effectiveness thereof shall
have been issued and, to the best knowledge of the parties hereto, no
investigation or proceeding for that purpose shall have been instituted
or be pending, threatened or contemplated under the 0000 Xxx.
8.5. The Acquired Fund shall have received a favorable opinion of
Ropes & Xxxx LLP satisfactory to the Acquired Fund, and the corresponding
Acquiring Fund shall have received a favorable opinion of Ropes & Xxxx
LLP satisfactory to the corresponding Acquiring Fund, each substantially
to the effect that, on the basis of existing provisions of the Code,
Treasury regulations promulgated thereunder, current administrative rules,
pronouncements, and court decisions, while the matter is not free from
doubt, generally for federal income tax purposes:
(a) The transactions contemplated by this Agreement will constitute
a reorganization within the meaning of Section 368(a) of the Code, and
the Acquired Fund and the corresponding Acquiring Fund will each be "a
party to a reorganization" within the meaning of Section 368(b) of the
Code;
(b) under Sections 361 and 357 of the Code, no gain or loss will
be recognized by the Acquired Fund upon the transfer of its assets to
the Acquiring Fund in exchange for Acquiring Fund shares and the
assumption by the Acquiring Fund of the Acquired Fund's liabilities,
or upon the distribution of Acquiring Fund shares by the Acquired
Fund to its shareholders in liquidation;
(c) under Section 354 of the Code, no gain or loss will be
recognized by shareholders of the Acquired Fund on the distribution
of Acquiring Fund shares to them in exchange for their shares of
the Acquired Fund;
(d) under Section 358 of the Code, the aggregate tax basis of
the Acquiring Fund shares that the Acquired Fund's shareholders receive
in exchange for their Acquired Fund shares will be the same as the
aggregate tax basis of the Acquired Fund shares exchanged therefor;
(e) under Section 1223(1) of the Code, an Acquired Fund
shareholder's holding period for the Acquiring Fund shares received
will be determined by including the holding period for the Acquired
Fund shares exchanged therefor, provided that at the time of the
exchange the shareholder held the Acquired Fund shares as a capital
asset;
(f) under Section 1032 of the Code, no gain or loss will be
recognized by the Acquiring Fund upon receipt of the assets
transferred to the Acquiring Fund in exchange for Acquiring Fund
shares and the assumption by the Acquiring Fund of the liabilities
of the Acquired Fund;
(g) under Section 362(b) of the Code, the Acquiring Fund's
tax basis in the assets that the Acquiring Fund receives from the
Acquired Fund will be the same as the Acquired Fund's tax basis in
such assets immediately prior to such exchange;
(h) under Section 1223(2) of the Code, the Acquiring Fund's
holding periods in such assets will include the Acquired Fund's
holding periods in such assets; and
(i) the Acquiring Fund will succeed to and take into account
the items of the Acquired Fund described in Section 381(c) of the
Code, subject to the conditions and limitations specified in
Sections 381, 382, 383 and 384 of the Code and the Regulations
thereunder.
The opinion will be based on certain factual certifications made
by officers of the Acquired Fund and the corresponding Acquiring
Fund and will also be based on customary assumptions. The opinion
is not a guarantee that the tax consequences of the relevant
reorganization will be as described above. There is no assurance
that the Internal Revenue Service or a court would agree
with the opinion.
8.6. At any time prior to the Closing, any of the foregoing
conditions of this Agreement, except paragraph 8.1, may be waived
jointly by the board of directors/trustees of each of the Acquired
Company and the corresponding Acquiring Trust, if, in their judgment,
such waiver will not have a material adverse effect on the interests
of the shareholders of the Acquired Fund or the corresponding
Acquiring Fund.
9. BROKERAGE FEES AND EXPENSES.
9.1. Each Acquired Fund and corresponding Acquiring Fund represents
and warrants to the other that there are no brokers or finders
entitled to receive any payments in connection with the transactions
provided for herein.
9.2. All fees and expenses incurred in connection with the
transactions contemplated herein shall be borne by the Adviser.
10. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES.
10.1. Each Acquired Fund and the corresponding Acquiring Fund agree
that neither party has made any representation, warranty or covenant
not set forth herein and that this Agreement constitutes the
entire agreement between the parties.
10.2. The representations, warranties and covenants contained in
this Agreement or in any document delivered pursuant hereto or in
connection herewith shall not survive the consummation of the
transactions contemplated hereunder except paragraphs 1.1, 1.2,
1.3, 1.5, 5.4, 5.6, 6.3, 9, 10, 13 and 14.
11. TERMINATION.
11.1. This Agreement may be terminated by the mutual agreement
of each Acquired Fund and the corresponding Acquiring Fund. In
addition, either an Acquired Fund or the corresponding Acquiring
Fund may at its option terminate this Agreement at or prior to
the Closing Date because:
(a) Of a material breach by the other of any representation,
warranty, covenant or agreement contained herein to be performed
by the other party at or prior to the Closing Date;
(b) A condition herein expressed to be precedent to the
obligations of the terminating party has not been met and it
reasonably appears that it will not or cannot be met; or
(c) Any governmental authority of competent jurisdiction
shall have issued any judgment, injunction, order, ruling or
decree or taken any other action restraining, enjoining or
otherwise prohibiting this Agreement or the consummation of
any of the transactions contemplated herein and such judgment,
injunction, order, ruling, decree or other action becomes
final and non-appealable; provided that the party seeking to
terminate this Agreement pursuant to this Section 11.1(c) shall
have used its reasonable best efforts to have such judgment,
injunction, order, ruling, decree or other action lifted,
vacated or denied.
If the transactions contemplated by this Agreement have not been
substantially completed by December 31, 2008, this Agreement shall
automatically terminate on that date unless a later date is agreed
to by both the Acquired Fund and the corresponding Acquiring Fund.
11.2. If for any reason, except for willful default by a party,
the transactions contemplated by this Agreement are not consummated,
no party shall be liable to any other party for any damages
resulting therefrom, including without limitation consequential
damages.
12. AMENDMENTS.
This Agreement may be amended, modified or supplemented in
such manner as may be mutually agreed upon in writing by the
authorized officers of each Acquired Fund and the corresponding
Acquiring Fund; provided, however, that following the shareholders'
meeting called by each Acquired Fund pursuant to paragraph 5.2 no
such amendment may have the effect of changing the provisions for
determining the number of the Acquisition Shares to be issued to
shareholders of such Acquired Fund under this Agreement to the
detriment of such shareholders without their further approval.
13. NOTICES.
Any notice, report, statement or demand required or
permitted by any provisions of this Agreement shall be
in writing and shall be given by prepaid telegraph, telecopy
or certified mail addressed to the Acquired Fund or the
corresponding Acquiring Fund at Xxx Xxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Secretary.
14. HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT;
NON- RECOURSE.
14.1. The article and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
14.2. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
14.3. This Agreement shall be governed by and construed in
accordance with the domestic substantive laws of The Commonwealth
of Massachusetts, without giving effect to any choice or conflicts
of law rule or provision that would result in the application
of the domestic substantive laws of any other jurisdiction.
14.4. This Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns, but
no assignment or transfer hereof or of any rights or obligations
hereunder shall be made by any party without the written consent
of the other party. Nothing herein expressed or implied is
intended or shall be construed to confer upon or give any person,
firm or corporation, other than the parties hereto and their
respective successors and assigns, any rights or remedies under or
by reason of this Agreement.
14.5. A copy of the Declaration of Trust of the Acquiring Trust
is on file with the Secretary of The Commonwealth of Massachusetts,
and notice is hereby given that no trustee, officer, agent or
employee of the Acquiring Trust shall have any personal liability
under this Agreement, and that this Agreement is binding only upon
the assets and properties of the relevant Acquiring Fund.
[THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be executed as a sealed instrument by its
President, a Vice President or Treasurer and attested by its
Secretary or Assistant Secretary.
EXCELSIOR FUNDS, INC.
EXCELSIOR FUNDS TRUST
Each on behalf of each of its
Acquired Funds
Attested by:
/s/ Xxxxx X. Xxxxxxxxx, Xx
Name: Xxxxx X. Xxxxxxxxx, Xx. By: /s/ J. Xxxxx Xxxxxxxxxxx
Title: Secretary Name: J. Xxxxx Xxxxxxxxxxx
Title: Senior Vice President,
Chief Financial Officer and Treasurer
COLUMBIA FUNDS SERIES TRUST I
On behalf of each of its
Acquiring Funds
Attested by:
/s/ Xxxxx X. Xxxxxxxxx, Xx
Name: Xxxxx X. Xxxxxxxxx, Xx. By: /s/ J. Xxxxx Xxxxxxxxxxx
Title: Secretary Name: J. Xxxxx Xxxxxxxxxxx
Title: Senior Vice President,
Chief Financial Officer and Treasurer
Solely for purposes of Paragraph 6.3
and 9.2 of the Agreement:
COLUMBIA MANAGEMENT ADVISORS, LLC
Attested by:
/s/ Xxxxx X. Xxxxxxxxx, Xx By: /s/ Xxxxxxxxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxxxxx, Xx. Name: Xxxxxxxxxxx X. Xxxxxx
Title: Secretary Title: Managing Director
Schedule A
Acquired Funds and Acquiring Funds
Acquired Companies/Acquired Funds Acquiring Trust/Acquiring Funds
EXCELSIOR FUNDS, INC. COLUMBIA FUNDS SERIES TRUST I
Blended Equity Fund Columbia Blended Equity Fund
Shares Class Class Z
Emerging Markets Fund Columbia Emerging Markets Fund
Class A Class A
Class C Class C
Shares Class Class Z
Institutional Class Class Z
Energy and Natural Resources Fund Columbia Energy and Natural
Resources Fund
Class A Class A
Class C Class C
Shares Class Class Z
Large Cap Growth Fund Columbia Select Large Cap
Growth Fund
Class A Class A
Class C Class C
Shares Class Class Z
Institutional Class Class Z
Retirement Shares Class Class R
Pacific/Asia Fund Columbia Pacific/Asia Fund
Shares Class Class Z
Small Cap Fund Columbia Select Small Cap Fund
Class A Class A
Class C Class C
Shares Class Class Z
Retirement Shares Class Class R
Value and Restructuring Fund Columbia Value and Restructuring
Fund
Class A Class A
Class C Class C
Shares Class Class Z
Institutional Class Class Z
Retirement Shares Class Class R
Core Bond Fund Columbia Bond Fund
Shares Class Class Z
Institutional Class Class Z
Intermediate-Term Bond Fund Columbia Short-Intermediate
Bond Fund
Shares Class Class Z
EXCELSIOR FUNDS TRUST COLUMBIA FUNDS SERIES TRUST I
Equity Opportunities Fund Columbia Select Opportunities Fund
Class A Class A
Class C Class C
Shares Class Class Z
Institutional Class Class Z
Mid Cap Value and Restructuring Fund Columbia Mid Cap Value and
Restructuring Fund
Shares Class Class Z
Institutional Class Class Z
Retirement Shares Class Class R
Item 77Q1(g)
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION dated
as of March 27, 2008, is by and among each of the trust
and corporation identified in Schedule A hereto as an
Acquired Company (each an "Acquired Company"), on behalf
of each series thereof identified in Schedule A hereto as
an Acquired Fund (each an "Acquired Fund"), Columbia Funds
Series Trust I (the "Acquiring Trust"), on behalf of
Columbia International Growth Fund (the "Acquiring Fund");
and Columbia Management Advisors, LLC (the "Adviser").
This Agreement shall be treated as if each
reorganization between an Acquired Fund and the Acquiring
Fund contemplated hereby had been the subject of a
separate agreement.
This Agreement is intended to be and is adopted as
a plan of reorganization and liquidation within the
meaning of Section 361(a) and Section 368(a) of the United
States Internal Revenue Code of 1986, as amended (the
"Code"), and any successor provision. The reorganization
will consist of the transfer of all of the assets of each
Acquired Fund attributable to each class of its shares in
exchange for shares of the corresponding class of shares
of the Acquiring Fund (the "Acquisition Shares"), and the
assumption by the Acquiring Fund of the liabilities of each
Acquired Fund and the distribution of the Acquisition Shares
to the relevant shareholders of such Acquired Fund in
liquidation of such Acquired Fund, all upon the terms and
conditions set forth in this Agreement.
In consideration of the premises and of the covenants
and agreements hereinafter set forth, the parties hereto
covenant and agree as follows:
1. TRANSFER OF ASSETS OF EACH ACQUIRED FUND IN EXCHANGE
FOR ASSUMPTION OF LIABILITIES AND ACQUISITION SHARES AND
LIQUIDATION OF SUCH ACQUIRED FUND.
1.1. Subject to the terms and conditions herein set forth
and on the basis of the representations and warranties
contained herein,
(a) Each Acquired Fund will transfer and deliver to the
Acquiring Fund, and the Acquiring Fund will acquire, all the
assets of such Acquired Fund as set forth in paragraph 1.2;
(b) The Acquiring Fund will assume all of each Acquired
Fund's liabilities and obligations of any kind whatsoever,
whether absolute, accrued, contingent or otherwise, in
existence on the Closing Date (as defined in paragraph 1.2
hereof) (the "Obligations"); and
(c) The Acquiring Fund will issue and deliver to each
Acquired Fund in exchange for the net assets attributable to
each class of its shares a number of Acquisition Shares of
the corresponding class equal in value to the net assets of
such class of the respective Acquired Fund, each determined
as of the close of business on the Valuation Date (as
defined in paragraph 2.1). Such transactions shall take
place at the closing provided for in paragraph 3.1 (the
"Closing").
1.2. The assets of each Acquired Fund to be acquired by
the Acquiring Fund shall consist of all cash, securities,
dividends and interest receivable, receivables for shares
sold and all other assets which are owned by the Acquired
Fund on the closing date provided in paragraph 3.1 (the
"Closing Date") and any deferred expenses, other than
unamortized organizational expenses, shown as an asset on
the books of such Acquired Fund on the Closing Date. The
Acquiring Fund agrees that all rights to indemnification
and all limitations of liability existing in favor of the
Acquired Company's current and former trustees/directors
and officers, acting in their capacities as such, under
the Acquired Company's organizational documents as in
effect as of the date of this Agreement or under any other
agreement of the Acquired Fund shall survive the
reorganization as obligations of the Acquiring Trust, on
behalf of the Acquiring Fund, and shall continue in full
force and effect, without any amendment thereto, and shall
constitute rights which may be asserted against the
Acquiring Trust, on behalf of the Acquiring Fund, its
successors or assigns.
1.3. As provided in paragraph 3.4, on the Closing Date,
or as soon thereafter as is conveniently practicable (the
"Liquidation Date"), each Acquired Fund will liquidate and
distribute pro rata to its shareholders of record of each
class of shares, determined as of the close of business on
the Valuation Date (as defined in paragraph 2.1), the
Acquisition Shares of the relevant class received from the
Acquiring Fund pursuant to paragraph 1.1. Such liquidation
and distribution will be accomplished by the transfer of the
Acquisition Shares then credited to the account of each
Acquired Fund on the books of the Acquiring Fund to open
accounts on the share records of the Acquiring Fund in the
names of such Acquired Fund's shareholders and representing
the respective pro rata number of Acquisition Shares due
such shareholders. The Acquiring Fund shall not be obligated
to issue certificates representing Acquisition Shares in
connection with such exchange.
1.4. With respect to Acquisition Shares distributable
pursuant to paragraph 1.3 to an Acquired Fund shareholder
holding a certificate or certificates for shares of such
Acquired Fund, if any, on the Valuation Date, such Acquired
Fund will not permit such shareholder to receive Acquisition
Share certificates therefor, to exchange such Acquisition
Shares for shares of other investment companies, to effect
an account transfer of such Acquisition Shares, or to pledge
or redeem such Acquisition Shares until such shareholder has
surrendered all his or her outstanding certificates for
Acquired Fund shares or, in the event of lost certificates,
posted adequate bond.
1.5. If applicable, as soon as practicable after the
Closing Date, each Acquired Company shall file an application
pursuant to Section 8(f) of the Investment Company Act of 1940,
as amended (the "1940 Act"), for an order declaring that it has
ceased to be an investment company and, upon receipt of such
order, shall make all filings and take all other steps as shall
be necessary and proper to effect its complete termination under
applicable state law. After the Closing Date, no Acquired Fund
shall conduct any business except in connection with its
liquidation, deregistration (if applicable) and termination.
2. VALUATION.
2.1. The value of each Acquired Fund's assets to be acquired
by the Acquiring Fund hereunder shall be the value of such assets
computed as of the close of regular trading on the New York Stock
Exchange on the business day next preceding the Closing (such time
and date being herein called the "Valuation Date") using the
valuation procedures set forth in the organizational documents of
the Acquiring Fund and the then current prospectus or prospectuses
or statement or statements of additional information of the Acquiring
Fund (collectively, as amended or supplemented from time to time, the
"Acquiring Fund Prospectus") for determining net asset value, and
shall be certified by such Acquired Fund.
2.2. Reserved.
3. CLOSING AND CLOSING DATE.
3.1. The Closing Date shall be on March 31, 2008, or on such other
date as the parties may agree. The Closing shall be held at 10:00 a.m.
at the Adviser's offices, Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000 (or such other place as the parties may agree), at such time
as the parties may agree.
3.2. The portfolio securities of each Acquired Fund shall be made
available by such Acquired Fund to the custodian for the Acquiring
Fund (the "Custodian") for examination no later than the fifth
business day preceding the Valuation Date. On the Closing Date,
such portfolio securities and all such Acquired Fund's cash shall
be delivered by such Acquired Fund to the Custodian for the
account of the Acquiring Fund, such portfolio securities to be
duly endorsed in proper form for transfer in such manner and
condition as to constitute good delivery thereof in accordance with
the custom of brokers or, in the case of portfolio securities held
in the U.S. Treasury Department's book-entry system or by the
Depository Trust Company, Participants Trust Company or other
third party depositories, by transfer to the account of the
Custodian in accordance with Rule 17f-4, Rule 17f-5 or Rule 17f-7,
as the case may be, under the 1940 Act and accompanied by all
necessary federal and state stock transfer stamps or a check for
the appropriate purchase price thereof. The cash delivered shall
be in the form of currency or certified or official bank checks,
payable to the order of "State Street Bank and Trust Company,
custodian for the Acquiring Fund."
3.3. In the event that on the Valuation Date (a) the New York
Stock Exchange shall be closed to trading or trading thereon shall
be restricted, or (b) trading or the reporting of trading on the
New York Stock Exchange or elsewhere shall be disrupted so that
accurate appraisal of the value of the net assets of each Acquired
Fund or of the Acquiring Fund is impracticable, the Closing Date
shall be postponed until the first business day after the day when
trading shall have been fully resumed and reporting shall have been
restored; provided that if trading shall not be fully resumed and
reporting restored within three business days of the Valuation Date,
this Agreement may be terminated by either an Acquired Fund or the
Acquiring Fund upon the giving of written notice to the other party.
3.4. At the Closing, each Acquired Fund or its transfer agent
shall deliver to the Acquiring Fund or its designated agent a list
of the names and addresses of such Acquired Fund's shareholders and
the number of outstanding shares of each class of such Acquired Fund
owned by each such shareholder, all as of the close of business on
the Valuation Date, certified by any Vice President, Secretary or
Assistant Secretary of such Acquired Fund. The Acquiring Trust will
provide to each Acquired Fund evidence satisfactory to such Acquired
Fund that the Acquisition Shares issuable pursuant to paragraph
1.1(c) have been credited to such Acquired Fund's account on the
books of the Acquiring Fund. On the Liquidation Date, the Acquiring
Fund will provide to each Acquired Fund evidence satisfactory to the
corresponding Acquired Fund that such Acquisition Shares have
been credited pro rata to open accounts in the names of such Acquired
Fund's shareholders as provided in paragraph 1.3.
3.5. At the Closing, each party shall deliver to the other such
bills of sale, instruments of assumption of liabilities, checks,
assignments, stock certificates, receipts or other documents as such
other party or its counsel may reasonably request in connection with
the transfer of assets, assumption of liabilities and liquidation
contemplated by paragraph 1.
4. REPRESENTATIONS AND WARRANTIES.
4.1. Each Acquired Fund represents and warrants the following
to the Acquiring Fund as of the date hereof and agrees to confirm
the continuing accuracy and completeness in all material respects of
the following on the Closing Date:
(a) The Acquired Fund is either (i) a series of an Acquired
Company that is duly organized, validly existing and in good standing
under the laws of the State of Delaware or (ii) a series of an
Acquired Company that is duly organized, validly existing and in good
standing under the laws of the State of Maryland, as applicable;
(b) Each Acquired Company, of which each Acquired Fund is a
series thereof, is a duly registered investment company classified
as a management company of the open-end type and its registration
with the Securities and Exchange Commission as an investment
company under the 1940 Act is in full force and effect, and the
Acquired Fund is a separate series thereof duly designated in
accordance with the applicable provisions of the Declaration of
Trust or Articles of Incorporation, as applicable, of the
applicable Acquired Company and the 1940 Act;
(c) The Acquired Fund is not in violation in any material
respect of any provision of its organizational documents or of
any agreement, indenture, instrument, contract, lease or other
undertaking to which the Acquired Fund is a party or by which
the Acquired Fund is bound, and the execution, delivery and
performance of this Agreement will not result in any such
violation;
(d) The Acquired Fund has no material contracts or other
commitments (other than this Agreement and such other
contracts as may be entered into in the ordinary course of
its business) which if terminated may result in material
liability to the Acquired Fund or under which (whether or
not terminated) any material payments for periods subsequent
to the Closing Date will be due from the Acquired Fund;
(e) To the knowledge of the Acquired Fund, except as has
been disclosed in writing to the Acquiring Fund, no litigation
or administrative proceeding or investigation of or before
any court or governmental body is presently pending or
threatened as to the Acquired Fund, any of its properties or
assets, or any person whom the Acquired Fund may be obligated
to indemnify in connection with such litigation, proceeding or
investigation, and the Acquired Fund is not a party to or
subject to the provisions of any order, decree or judgment
of any court or governmental body, which materially and
adversely affects its business or its ability to consummate
the transactions contemplated hereby;
(f) The statement of assets and liabilities, the statement
of operations, the statement of changes in net assets, and the
schedule of investments of the Acquired Fund, as of and for
its most recently completed fiscal year, audited by
PricewaterhouseCoopers LLP (and, if applicable, the unaudited
statement of assets and liabilities, statement of operations,
statement of changes in net assets and schedule of investments
for any subsequent semiannual period following the most
recently completed fiscal year), copies of which have been
furnished to the Acquiring Fund, fairly reflect the financial
condition and results of operations of the Acquired Fund as
of such dates and for the periods then ended in accordance
with generally accepted accounting principles consistently
applied, and the Acquired Fund has no known liabilities of
a material amount, contingent or otherwise, other than those
shown on the statements of assets and liabilities referred
to above or those incurred in the ordinary course of its
business since the date of the Acquired Fund's most recently
completed fiscal year;
(g) Since the date of the Acquired Fund's most recently
completed fiscal year, there has not been any material adverse
change in the Acquired Fund's financial condition, assets,
liabilities or business (other than changes occurring in the
ordinary course of business), or any incurrence by the Acquired
Fund of indebtedness, except as disclosed in writing to
the Acquiring Fund. For the purposes of this subparagraph (g),
distributions of net investment income and net realized capital
gains, changes in portfolio securities, changes in the market
value of portfolio securities and net redemptions shall be
deemed to be in the ordinary course of business;
(h) As of the Closing Date, all federal and other tax returns
and reports of the Acquired Fund required by law to have been
filed by such date (giving effect to extensions) shall have
been filed, and all federal and other taxes shown to be due on
such returns and reports or on any assessment received shall
have been paid, or provisions shall have been made for the
payment thereof, except for amounts that alone and in the
aggregate would not reasonably be expected to have a material
adverse effect. All of the Acquired Fund's tax liabilities
will have been adequately provided for on its books. To the
best of the Acquired Fund's knowledge, it will not have had
any tax deficiency or liability asserted against it or
question with respect thereto raised, and it will not be
under audit by the Internal Revenue Service or by any state
or local tax authority for taxes in excess of those already
paid;
(i) The Acquired Fund meets the requirements of
subchapter M of the Code for treatment as a "regulated
investment company" within the meaning of Section 851 of
the Code, and will continue meeting such requirements at all
times through the Closing Date. The Acquired Fund has not
at any time since its inception been liable for nor is now
liable for any material income or excise tax pursuant to
Section 852 or 4982 of the Code. The Acquired Fund is in
compliance in all material respects with applicable
regulations of the Internal Revenue Service pertaining to
the reporting of dividends and other distributions on and
redemptions of its capital stock and to withholding in
respect of dividends and other distributions to
shareholders, and is not liable for any material penalties
which could be imposed thereunder;
(j) All issued and outstanding shares of the Acquired
Fund are, and at the Closing Date will be, duly and validly
issued and outstanding, fully paid and non-assessable
(except as set forth in the Acquired Fund's then current
prospectus or prospectuses or statement or statements of
additional information (collectively, as amended or
supplemented from time to time, the "Acquired Fund
Prospectus")) by the applicable Acquired Company and
will have been issued in compliance with all applicable
registration or qualification requirements of federal and
state securities laws. No options, warrants or other rights
to subscribe for or purchase, or securities convertible
into, any shares of the Acquired Fund are outstanding and
none will be outstanding on the Closing Date;
(k) The Acquired Fund's investment operations from
inception to the date hereof have been in compliance in
all material respects with the investment policies and
investment restrictions set forth in the Acquired Fund
Prospectus, except as previously disclosed in writing
to the Acquiring Fund;
(l) The execution, delivery and performance of this
Agreement has been duly authorized by the trustees/
directors of the Acquired Company, upon approval
thereof by the required majority of the shareholders of
the Acquired Fund and assuming the due authorization,
execution and delivery of this Agreement by the Acquiring
Trust and Columbia, this Agreement will constitute the
valid and binding obligation of the Acquired Fund
enforceable in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the
enforcement of creditors' rights generally and other
equitable principles;
(m) The Acquisition Shares to be issued to the Acquired
Fund pursuant to paragraph 1 will not be acquired for the
purpose of making any distribution thereof other than to
the Acquired Fund's shareholders as provided in
paragraph 1.3;
(n) The information provided by the Acquired Fund for
use in the Registration Statement and Prospectus/Proxy
Statement referred to in paragraph 5.3 shall be accurate
and complete in all material respects an shall comply with
federal securities and other laws and regulations as
applicable thereto;
(o) No consent, approval, authorization or order of any
court or governmental authority is required for the
consummation by the Acquired Fund of the transactions
contemplated by this Agreement, except such as may be
required under the Securities Act of 1933, as amended
(the "1933 Act"), the Securities Exchange Act of 1934,
as amended (the "1934 Act"), the 1940 Act and state
securities or "Blue Sky" laws (which terms used herein
shall include the laws of the District of Columbia and
of Puerto Rico);
(p) At the Closing Date, the Acquired Fund will
have good and marketable title to its assets to be
transferred to the Acquiring Fund pursuant to paragraph
1.1 and will have full right, power and authority to
sell, assign, transfer and deliver the Investments (as
defined below) and any other assets and liabilities of
the Acquired Fund to be transferred to the Acquiring
Fund pursuant to this Agreement. At the Closing Date,
subject only to the delivery of the Investments and any
such other assets and liabilities and payment therefor
as contemplated by this Agreement, the corresponding
Acquiring Fund will acquire good and marketable title
thereto and will acquire the Investments and any such
other assets and liabilities subject to no encumbrances,
liens or security interests whatsoever and without any
restrictions upon the transfer thereof, except as
previously disclosed to the Acquiring Fund. As used in
this Agreement, the term "Investments" shall mean the
Acquired Fund's investments shown on the schedule of its
investments as of the date of its most recently completed
fiscal year, referred to in subparagraph 4.1(f) hereof, as
supplemented with such changes in the portfolio as the
Acquired Fund shall make, and changes resulting from stock
dividends, stock split-ups, mergers and similar corporate
actions through the Closing Date;
(q) Reserved; and
(r) No registration of any of the Investments would be
required if they were, as of the time of such transfer, the
subject of a public distribution by either of the Acquiring
Fund or the Acquired Fund, except as previously disclosed
by the Acquired Fund to the Acquiring Fund.
4.2. The Acquiring Fund represents and warrants the
following to each Acquired Fund as of the date hereof and
agrees to confirm the continuing accuracy and completeness
in all material respects of the following on the Closing
Date:
(a) The Acquiring Fund is a series of the Acquiring
Trust, which is duly organized, validly existing and in
good standing under the laws of The Commonwealth of
Massachusetts;
(b) The Acquiring Trust is a duly registered investment
company classified as a management company of the open-end
type and its registration with the Securities and Exchange
Commission as an investment company under the 1940 Act is
in full force and effect, and the Acquiring Fund is a
separate series thereof duly designated in accordance with
the applicable provisions of the Declaration of Trust of
the Acquiring Trust and the 1940 Act;
(c) At the Closing Date, the Acquiring Fund Prospectus
will conform in all material respects to the applicable
requirements of the 1933 Act and the rules and regulations of
the Securities and Exchange Commission thereunder and will not
include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and
there will be no material contracts to which the Acquiring
Fund is a party that are not referred to in such Prospectus
or in the registration statement of which it is a part;
(d) At the Closing Date, the Acquiring Fund will have
good and marketable title to its assets;
(e) The Acquiring Fund is not in violation in any
material respect of any provisions of its organizational
documents or of any agreement, indenture, instrument,
contract, lease or other undertaking to which the Acquiring
Fund is a party or by which the Acquiring Fund is bound,
and the execution, delivery and performance of this Agreement
will not result in any such violation;
(f) To the knowledge of the Acquiring Fund, except as has
been disclosed in writing to the Acquired Fund, no litigation
or administrative proceeding or investigation of or before
any court or governmental body is presently pending or
threatened as to the Acquiring Fund, any of its properties
or assets, or any person whom the Acquiring Fund may be
obligated to indemnify in connection with such litigation,
proceeding or investigation, and the Acquiring Fund is not
a party to or subject to the provisions of any order, decree
or judgment of any court or governmental body which materially
and adversely affects its business or its ability to
consummate the transactions contemplated hereby;
(g) Reserved;
(h) Reserved;
(i) As of the Closing Date, the Acquiring Fund shall have
not been required by law to have filed any federal or other
tax returns or reports. All of the Acquiring Fund's tax
liabilities, if any, will have been adequately provided for
on its books. To the best of the Acquiring Fund's knowledge,
it will not have had any tax deficiency or liability asserted
against it or question with respect thereto raised, and it
will not be under audit by the Internal Revenue Service or
by any state or local tax authority for taxes in excess of
those already paid;
(j) The Acquiring Fund was established by the trustees of
the Acquiring Trust in order to effect the transactions described
in this Agreement. It has not yet filed its first federal
income tax return and, thus, has not yet elected to be treated
as a "regulated investment company" for federal income tax
purposes. However, upon filing its first income tax
return at the completion of its first taxable year, the
Acquiring Fund will elect to be a "regulated investment
company" and until such time will take all steps necessary
to ensure that it qualifies for taxation as a "regulated
investment company" under Sections 851 and 852 of the Code;
(k) The Acquiring Fund has no shares of beneficial interest
issued and outstanding;
(l) Reserved;
(m) The execution, delivery and performance of this
Agreement have been duly authorized by all necessary action
on the part of the Acquiring Fund, and assuming the due
authorization, execution and delivery of this Agreement by
the Acquired Company and Columbia, this Agreement constitutes
the valid and binding obligation of the Acquiring Fund
enforceable in accordance with its terms, except as the same
may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors'
rights generally and other equitable principles;
(n) The Acquisition Shares to be issued and delivered to
the Acquired Fund pursuant to the terms of this Agreement will
at the Closing Date have been duly authorized and, when so
issued and delivered, will be duly and validly issued shares
of the Acquiring Fund, and will be fully paid and non-
assessable (except as set forth in the Acquiring Fund
Prospectus) by the Acquiring Fund, and no shareholder of
the Acquiring Fund will have any preemptive right of
subscription or purchase in respect thereof;
(o) The information provided by the Acquiring Fund for
use in the Registration Statement and Prospectus/Proxy
Statement referred to in paragraph 5.3 shall be accurate
and complete in all material respects an shall comply with
federal securities and other laws and regulations as
applicable thereto; and
(p) No consent, approval, authorization or order of
any court or governmental authority is required for the
consummation by the Acquiring Fund of the transactions
contemplated by this Agreement, except such as may be
required under the 1933 Act, the 1934 Act, the 1940 Act
and state securities or "Blue Sky" laws (which terms as
used herein shall include the laws of the District of
Columbia and of Puerto Rico).
5. COVENANTS OF EACH ACQUIRED FUND AND THE
ACQUIRING FUND.
Each Acquired Fund and the Acquiring Fund hereby
covenants and agrees with the other as follows:
5.1. The Acquiring Fund and the Acquired Fund will
each operate its business in the ordinary course
between the date hereof and the Closing Date, it being
understood that such ordinary course of business will
include regular and customary periodic dividends and
distributions.
5.2. Each Acquired Fund will call a meeting of its
shareholders to be held prior to the Closing Date to
consider and to act upon this Agreement and to take all
other reasonable action necessary to obtain the required
shareholder approval of the transactions contemplated
hereby.
5.3. In connection with each Acquired Fund
shareholders' meeting referred to in paragraph 5.2,
the Acquiring Fund will prepare a prospectus/proxy
statement (the "Prospectus/Proxy Statement") for
such meeting, to be included in a Registration Statement
on Form N-14 (the "Registration Statement"), which the
Acquiring Fund will prepare and file for registration
under the 1933 Act of the Acquisition Shares to be
distributed to each Acquired Fund's shareholders
pursuant hereto, all in compliance with the applicable
requirements of the 1933 Act, the Securities Exchange
Act of 1934, as amended, and the 1940 Act.
5.4. The information to be furnished by each
Acquired Fund for use in the Registration Statement
and the information to be furnished by the Acquiring
Fund for use in the Prospectus/Proxy Statement, each as
referred to in paragraph 5.3, shall be accurate and
complete in all material respects and shall comply with
federal securities and other laws and regulations
thereunder applicable thereto.
5.5. The Acquiring Fund will advise the Acquired
Fund promptly if at any time prior to the Closing
Date the assets of such Acquired Fund include any
securities that the Acquiring Fund is not
permitted to acquire.
5.6. Subject to the provisions of this Agreement,
the Acquired Fund and the Acquiring Fund will each
take, or cause to be taken, all action, and do, or
cause to be done, all things reasonably necessary,
proper or advisable to cause the conditions to the
other party's obligations to consummate the
transactions contemplated hereby to be met or
fulfilled and otherwise to consummate and make
effective such transactions.
5.7. The Acquiring Fund will use all reasonable
efforts to obtain the approvals and authorizations
required by the 1933 Act, the 1940 Act and such of
the state securities or "Blue Sky" laws as it
may deem appropriate in order to continue its
operations after the Closing Date.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH
ACQUIRED FUND.
The obligation of each Acquired Fund to consummate
the transactions provided for herein shall be subject,
at its election, to the performance by the Acquiring
Fund of all the obligations to be performed by it
hereunder on or before the Closing Date and, in
addition thereto, to the following further conditions:
6.1. The Acquiring Fund shall have delivered to the
Acquired Fund a certificate executed in its name by its
President or a Vice President and its Treasurer or an
Assistant Treasurer, in form and substance satisfactory
to the Acquired Fund and dated as of the Closing Date,
to the effect that the representations and warranties
of the Acquiring Fund made in this Agreement are true
and correct at and as of the Closing Date, except as
they may be affected by the transactions contemplated
by this Agreement, and that the Acquiring Fund has
complied with all the covenants and agreements
and satisfied all of the conditions on its part to
be performed or satisfied under this Agreement at
or prior to the Closing Date.
6.2. The Acquired Fund shall have received a favorable
opinion of Ropes & Xxxx LLP, dated the Closing Date and
in a form satisfactory to the Acquired Fund, to the
following effect:
(a) The Acquiring Trust is duly organized and
validly existing under the laws of The Commonwealth of
Massachusetts and has power to own all of its
properties and assets and to carry on its business as
presently conducted, and the corresponding Acquiring
Fund is a separate series thereof duly constituted
in accordance with the applicable provisions of the
1940 Act and the Declaration of Trust and Bylaws of
the Acquiring Trust;
(b) This Agreement has been duly authorized, executed
and delivered on behalf of the Acquiring Fund and, assuming
the Registration Statement and Prospectus/Proxy Statement
referred to in paragraph 5.3 comply with applicable federal
securities laws and assuming the due authorization,
execution and delivery of this Agreement by the Acquired
Fund and Columbia, is the valid and binding obligation of
the Acquiring Fund, enforceable against the Acquiring Fund
in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors'
rights generally and other equitable principles;
(c) The Acquiring Fund has the power to assume the
liabilities to be assumed by it hereunder and, upon
consummation of the transactions contemplated hereby, the
Acquiring Fund will have duly assumed such liabilities;
(d) The Acquisition Shares to be issued for transfer
to the Acquired Fund's shareholders as provided by this
Agreement are duly authorized and upon such transfer and
delivery will be validly issued and outstanding and fully
paid and nonassessable shares in the Acquiring Fund, and
no shareholder of the Acquiring Fund has any preemptive
right of subscription or purchase in respect thereof;
(e) The execution and delivery of this Agreement did
not, and the performance by the Acquiring Fund of its
obligations hereunder will not, violate the Acquiring
Fund's organizational documents, or any provision of any
agreement known to such counsel to which the Acquiring
Fund is a party or by which it is bound or, to the
knowledge of such counsel, result in the acceleration
of any obligation or the imposition of any penalty
under any agreement, judgment, or decree to which the
Acquiring Fund is a party or by which it is bound;
(f) To the knowledge of such counsel, no consent,
approval, authorization or order of any court or
governmental authority is required for the consummation
by the Acquiring Fund of the transactions contemplated
by this Agreement except such as may be required under
state securities or "Blue Sky" laws or such as have been
obtained;
(g) Such counsel does not know of any legal or
governmental proceedings relating to the Acquiring Fund
existing on or before the date of mailing of the Prospectus
/Proxy Statement referred to in paragraph 5.3 or the Closing
Date required to be described in the Registration Statement
that are not described as required;
(h) The Acquiring Trust is registered with the Securities
and Exchange Commission as an investment company under the
1940 Act;
(i) To the knowledge of such counsel, except as has been
disclosed in writing to the Acquired Fund or disclosed in
the Prospectus/Proxy Statement referred to in paragraph
5.3, no litigation or administrative proceeding or
investigation of or before any court or governmental body
is presently pending or threatened as to the Acquiring Fund
or any of its properties or assets or any person whom the
Acquired Fund may be obligated to indemnify in connection
with such litigation, proceeding or investigation, and the
Acquiring Fund is not a party to or subject to the
provisions of any order, decree or judgment of any court or
governmental body, which materially and adversely affects its
business or its ability to consummate the transaction
contemplated hereby; and
(j) The Registration Statement has become effective
under the 1933 Act and, to the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings
for that purpose have been instituted or threatened by the
Securities and Exchange Commission. Such counsel may rely on
certificates of officers or trustees of the Acquiring Trust.
6.3. For the period beginning at the Closing Date of the
last reorganization of any series for each Acquired Company
and ending not less than six years thereafter, Columbia, its
successors and assigns, shall provide, or cause to be provided,
liability coverage at least comparable to the liability
coverage currently applicable to both former and current
directors and officers of such Acquired Company as of the
date of this Agreement, covering the actions of such directors
and officers of such Acquired Company for the period they
served as such. Any related costs or expenses shall be borne
by the applicable Acquired Company.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH ACQUIRING FUND.
The obligations of the Acquiring Fund to complete the
transactions provided for herein shall be subject, at
its election, to the performance by each Acquired Fund of
all the obligations to be performed by it hereunder on or
before the Closing Date and, in addition thereto, to the
following further conditions:
7.1. The Acquired Fund shall have delivered to the
Acquiring Fund a certificate executed in its name by its
President or a Vice President and its Treasurer or an
Assistant Treasurer, in form and substance satisfactory
to the Acquiring Fund and dated as of the Closing Date,
to the effect that the representations and warranties of
the Acquired Fund made in this Agreement are true and
correct at and as of the Closing Date, except as they
may be affected by the transactions contemplated by this
Agreement, and that the Acquired Fund has complied with
all the covenants and agreements and satisfied all of
the conditions on its part to be performed or satisfied
under this Agreement at or prior to the Closing Date.
7.2. The Acquiring Fund shall have received a favorable
opinion of Xxxxxx, Xxxxx & Bockius LLP, dated the Closing
Date and in a form satisfactory to the Acquiring Fund, to
the following effect:
(a) The applicable Acquired Company (i) is either
(A) duly organized and validly existing under the laws of
the State of Maryland or (B) duly organized and validly
existing under the laws of the State of Delaware and (ii)
has power to own all of its properties and assets and to
carry on its business as presently conducted, and the
Acquired Fund is a separate series thereof duly constituted
in accordance with the applicable provisions of the 1940
Act and the Declaration of Trust/Articles of Incorporation
and Bylaws of the Acquired Company;
(b) This Agreement has been duly authorized, executed
and delivered on behalf of the Acquired Fund and, assuming
the Registration Statement and Prospectus/Proxy Statement
referred to in paragraph 5.3 comply with applicable federal
securities laws and assuming the due authorization,
execution and delivery of this Agreement by the Acquiring
Fund and Columbia, is the valid and binding obligation of
the Acquired Fund enforceable against the Acquired Fund in
accordance with its terms, except as the same may be limited
by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally
and other equitable principles;
(c) The Acquired Fund has the power to sell, assign,
transfer and deliver the assets to be transferred by it
hereunder, and, upon consummation of the transactions
contemplated hereby, the Acquired Fund will have duly
transferred such assets to the Acquiring Fund;
(d) The execution and delivery of this Agreement did
not, and the performance by the Acquired Fund of its
respective obligations hereunder will not, violate the
Acquired Fund's organizational documents or any provision
of any agreement known to such counsel to which the Acquired
Fund is a party or by which it is bound or, to the knowledge
of such counsel, result in the acceleration of any obligation
or the imposition of any penalty under any agreement,
judgment, or decree to which the Acquired Fund is a party
or by which it is bound;
(e) To the knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority
is required for the consummation by the Acquired Fund of the
transactions contemplated by this Agreement, except such as
have been obtained;
(f) Such counsel does not know of any legal or governmental
proceedings relating to the Acquired Fund existing on or before
the date of mailing of the Prospectus/Proxy Statement referred
to in paragraph 5.3 or the Closing Date required to be
described in the Prospectus/Proxy Statement that are not
described as required;
(g) The applicable Acquired Company is registered with the
Securities and Exchange Commission as an investment company under
the 1940 Act; and
(h) To the knowledge of such counsel, except as has been
disclosed in writing to the Acquiring Fund or disclosed in the
Prospectus/Proxy Statement referred to in paragraph 5.3, no
litigation or administrative proceeding or investigation of or
before any court or governmental body is presently pending or
threatened as to the Acquired Fund or any of its properties or
assets or any person whom the Acquiring Fund may be obligated to
indemnify in connection with such litigation, proceeding or
investigation, and the Acquired Fund is not a party to or subject
to the provisions of any order, decree or judgment of any court
or governmental body, which materially and adversely affects its
business or its ability to consummate the transaction
contemplated thereby. Such counsel may rely as to matters
governed by the laws of The Commonwealth of Massachusetts on an
opinion of local counsel and/or certificates of officers or
trustees of the Acquired Company.
7.3. Prior to the Closing Date, the Acquired Fund shall
have declared a dividend or dividends which, together with all
previous dividends, shall have the effect of distributing (i)
all of the excess of (x) the Acquired Fund's interest income
excludable from gross income under Section 103 of the Code
over (y) the Acquired Fund's deductions disallowed under
Sections 265 or 171 of the Code and (ii) all of the Acquired
Fund's investment company taxable income as defined in Section
852 of the Code (in each case computed without regard to any
deduction for dividends paid) for its taxable years ending on
or after March 31, 2007, and on or prior to the Closing Date
(computed without regard to any deduction for dividends paid),
and all of its net capital gains realized (after reduction
for any capital loss carryover) in each of its taxable years
ending on or after March 31, 2007, and on or prior to the
Closing Date. This Section 7.3 shall be a condition precedent
to the obligations of the Acquiring Fund to complete the
transactions provided for herein only if both Acquired
Funds will complete the transactions provided for herein.
7.4. The Acquired Fund shall have furnished to the Acquiring
Fund a certificate, signed by the President (or any Vice
President) and the Treasurer (or Assistant Treasurer) of the
Acquired Fund, as to the adjusted tax basis in the hands of
the Acquired Fund of the securities delivered to the Acquiring
Fund pursuant to this Agreement. This Section 7.4 shall be a
condition precedent to the obligations of the Acquiring Fund to
complete the transactions provided for herein only if both
Acquired Funds will complete the transactions provided for
herein.
7.5. The custodian shall have delivered to the Acquiring
Fund a certificate identifying all of the assets of the Acquired
Fund held by the Custodian as of the Valuation Date.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE
ACQUIRING FUND AND EACH ACQUIRED FUND.
The respective obligations of each Acquired Fund and the
Acquiring Fund hereunder are each subject to the further
conditions that on or before the Closing Date:
8.1. This Agreement and the transactions contemplated herein
shall have received all necessary shareholder approvals at the
meeting of shareholders of each Acquired Fund referred to in
paragraph 5.2.
8.2. On the Closing Date, no action, suit or other proceeding
shall be pending before any court or governmental agency in which
it is sought to restrain or prohibit, or obtain damages or other
relief in connection with, this Agreement or the transactions
contemplated hereby. On the Closing Date, the Securities and
Exchange Commission will not have issued an unfavorable report
under Section 25(b) of the 1940 Act, nor instituted any proceeding
seeking to enjoin the consummation of the transactions contemplated
by this Agreement under Section 25(c) of the 1940 Act.
8.3. All consents of other parties and all other consents,
orders and permits of federal, state and local regulatory authorities
(including those of the Securities and Exchange Commission and of
state "Blue Sky" and securities authorities) deemed necessary by the
Acquired Fund or the Acquiring Fund to permit consummation, in all
material respects, of the transactions contemplated hereby shall have
been obtained, except where failure to obtain any such consent, order
or permit would not involve a risk of a material adverse effect on the
assets or properties of the Acquired Fund or the Acquiring Fund.
8.4. The Registration Statement shall have become effective under
the 1933 Act and no stop order suspending the effectiveness thereof
shall have been issued and, to the best knowledge of the parties
hereto, no investigation or proceeding for that purpose shall have
been instituted or be pending, threatened or contemplated under the
0000 Xxx.
8.5. The Acquired Fund shall have received a favorable opinion of
Ropes & Xxxx LLP satisfactory to the Acquired Fund, and the Acquiring
Fund shall have received a favorable opinion of Ropes & Xxxx LLP
satisfactory to the Acquiring Fund, each substantially to the effect
that, on the basis of existing provisions of the Code, Treasury
regulations promulgated thereunder, current administrative rules,
pronouncements, and court decisions, while the matter is not free
from doubt, generally for federal income tax purposes:
(a) the transactions contemplated by this Agreement will
constitute a reorganization within the meaning of Section 368(a)
of the Code, and the Acquired Fund and the Acquiring Fund will
each be "a party to a reorganization" within the meaning of
Section 368(b) of the Code;
(b) under Sections 361 and 357 of the Code, no gain or loss
will be recognized by the Acquired Fund upon the transfer of
its assets to the Acquiring Fund in exchange for Acquiring
Fund shares and the assumption by the Acquiring Fund of the
Acquired Fund's liabilities, or upon the distribution of
Acquiring Fund shares by the Acquired Fund to its shareholders
in liquidation;
(c) under Section 354 of the Code, no gain or loss will
be recognized by shareholders of the Acquired Fund on the
distribution of Acquiring Fund shares to them in exchange
for their shares of the Acquired Fund;
(d) under Section 358 of the Code, the aggregate tax
basis of the Acquiring Fund shares that the Acquired Fund's
shareholders receive in exchange for their Acquired Fund
shares will be the same as the aggregate tax basis of the
Acquired Fund shares exchanged therefor;
(e) under Section 1223(1) of the Code, an Acquired
Fund shareholder's holding period for the Acquiring Fund
shares received will be determined by including the
holding period for the Acquired Fund shares exchanged
therefor, provided that at the time of the exchange the
shareholder held the Acquired Fund shares as a capital
asset;
(f) under Section 1032 of the Code, no gain or loss
will be recognized by the Acquiring Fund upon receipt of
the assets transferred to the Acquiring Fund in exchange
for Acquiring Fund shares and the assumption by the
Acquiring Fund of the liabilities of the Acquired Fund;
(g) under Section 362(b) of the Code, the Acquiring
Fund's tax basis in the assets that the Acquiring Fund
receives from the Acquired Fund will be the same as the
Acquired Fund's tax basis in such assets immediately
prior to such exchange;
(h) under Section 1223(2) of the Code, the Acquiring
Fund's holding periods in such assets will include the
Acquired Fund's holding periods in such assets; and
(i) the Acquiring Fund will succeed to and take
into account the items of the Acquired Fund described in
Section 381(c) of the Code, subject to the conditions
and limitations specified in Sections 381, 382, 383 and
384 of the Code and the Regulations thereunder.
The opinion will be based on certain factual certifications
made by officers of the Acquired Fund and the Acquiring
Fund and will also be based on customary assumptions.
The opinion will note and distinguish certain published
precedent. The opinion is not a guarantee that the tax
consequences of the relevant reorganization will be as
described above. There is no assurance that the Internal
Revenue Service or a court would agree with the opinion.
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 at the end of a taxable year (or on the
termination or transfer thereof) under federal income tax
principles under federal income tax principles (i) at the
end of a taxable year or upon termination thereof, or (ii)
upon the transfer of such asset regardless of whether such
a transfer would otherwise be a non-taxable transaction.
8.6. At any time prior to the Closing, any of the
foregoing conditions of this Agreement, except paragraph
8.1, may be waived jointly by the board of directors/
trustees of each of the Acquired Company and the
Acquiring Trust, if, in their judgment, such waiver will
not have a material adverse effect on the interests of
the shareholders of the Acquired Fund or the Acquiring
Fund.
9. BROKERAGE FEES AND EXPENSES.
9.1. Each Acquired Fund and Acquiring Fund represents
and warrants to the other that there are no brokers or
finders entitled to receive any payments in connection
with the transactions provided for herein.
9.2. All fees and expenses incurred in connection
with the transactions contemplated herein shall be borne
by the Adviser.
10. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES.
10.1. Each Acquired Fund and the Acquiring Fund agree
that neither party has made any representation, warranty
or covenant not set forth herein and that this Agreement
constitutes the entire agreement between the parties.
10.2. The representations, warranties and covenants
contained in this Agreement or in any document delivered
pursuant hereto or in connection herewith shall not
survive the consummation of the transactions contemplated
hereunder except paragraphs 1.1, 1.2, 1.3, 1.5, 5.4,
5.6, 6.3, 9, 10, 13 and 14.
11. TERMINATION.
11.1. This Agreement may be terminated by the mutual
agreement of each Acquired Fund and the Acquiring Fund.
In addition, either an Acquired Fund or the Acquiring
Fund may at its option terminate this Agreement at or
prior to the Closing Date because:
(a) Of a material breach by the other of any
representation, warranty, covenant or agreement contained
herein to be performed by the other party at or prior
to the Closing Date;
(b) A condition herein expressed to be precedent to
the obligations of the terminating party has not been met
and it reasonably appears that it will not or cannot be
met; or
(c) Any governmental authority of competent
jurisdiction shall have issued any judgment, injunction,
order, ruling or decree or taken any other action
restraining, enjoining or otherwise prohibiting this
Agreement or the consummation of any of the transactions
contemplated herein and such judgment, injunction, order,
ruling, decree or other action becomes final and non-
appealable; provided that the party seeking to terminate
this Agreement pursuant to this Section 11.1(c) shall
have used its reasonable best efforts to have such
judgment, injunction, order, ruling, decree or other
action lifted, vacated or denied.
If the transactions contemplated by this Agreement have
not been substantially completed by December 31, 2008,
this Agreement shall automatically terminate on that
date unless a later date is agreed to by both the
Acquired Fund and the Acquiring Fund.
11.2. If for any reason, except for willful default
by a party, the transactions contemplated by this
Agreement are not consummated, no party shall be liable
to any other party for any damages resulting therefrom,
including without limitation consequential damages.
12. AMENDMENTS.
This Agreement may be amended, modified or
supplemented in such manner as may be mutually agreed
upon in writing by the authorized officers of each
Acquired Fund and the Acquiring Fund; provided, however,
that following the shareholders' meeting called by each
Acquired Fund pursuant to paragraph 5.2 no such amendment
may have the effect of changing the provisions for
determining the number of the Acquisition Shares to
be issued to shareholders of such Acquired Fund under
this Agreement to the detriment of such shareholders
without their further approval.
13. NOTICES.
Any notice, report, statement or demand required or
permitted by any provisions of this Agreement shall be in
writing and shall be given by prepaid telegraph, telecopy or
certified mail addressed to the Acquired Fund or the
Acquiring Fund at Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, Attention: Secretary.
14. HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT;
NON- RECOURSE.
14.1. The article and paragraph headings contained in this
Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement.
14.2. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
14.3. This Agreement shall be governed by and construed in
accordance with the domestic substantive laws of The Commonwealth
of Massachusetts, without giving effect to any choice or conflicts
of law rule or provision that would result in the application
of the domestic substantive laws of any other jurisdiction.
14.4. This Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns, but
no assignment or transfer hereof or of any rights or obligations
hereunder shall be made by any party without the written
consent of the other party. Nothing herein expressed or implied
is intended or shall be construed to confer upon or give any
person, firm or corporation, other than the parties hereto and
their respective successors and assigns, any rights or remedies
under or by reason of this Agreement.
14.5. A copy of the Declaration of Trust of the Acquiring Trust
is on file with the Secretary of The Commonwealth of
Massachusetts, and notice is hereby given that no trustee,
officer, agent or employee of the Acquiring Trust shall have
any personal liability under this Agreement, and that this
Agreement is binding only upon the assets and properties of
the Acquiring Fund.
[THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, each of the parties hereto has
caused this Agreement to be executed as a sealed instrument
by its President, a Vice President or Treasurer and
attested by its Secretary or Assistant Secretary.
EXCELSIOR FUNDS, INC.
On Behalf of its International
Fund
EXCELSIOR FUNDS TRUST
On behalf of its International
Equity Fund
Attested by:
/s/ Xxxxx X. Xxxxxxxxx, Xx.
Name: Xxxxx X. Xxxxxxxxx, Xx. By: /s/ J. Xxxxx Xxxxxxxxxxx
Title: Secretary Name: J. Xxxxx Xxxxxxxxxxx
Title: Senior Vice President,
Chief Financial Officer and Treasurer
COLUMBIA FUNDS SERIES TRUST I
On behalf of Columbia International
Growth Fund
Attested by:
/s/ Xxxxx X. Xxxxxxxxx, Xx.
Name: Xxxxx X. Xxxxxxxxx, Xx. By: /s/ J. Xxxxx Xxxxxxxxxxx
Title: Secretary Name: J. Xxxxx Xxxxxxxxxxx
Title: Senior Vice President,
Chief Financial Officer and Treasurer
Solely for purposes of Paragraph 6.3
and 9.2 of the Agreement:
COLUMBIA MANAGEMENT ADVISORS, LLC
Attested by:
/s/ Xxxxx X. Xxxxxxxxx, Xx. By: /s/ Xxxxxxxxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxxxxx, Xx. Name: Xxxxxxxxxxx X. Xxxxxx
Title: Secretary Title: Managing Director
Schedule A
Acquired Funds and Acquiring Funds
Acquired Companies/Acquired Funds Acquiring Trust/Acquiring Funds
EXCELSIOR FUNDS, INC. COLUMBIA FUNDS SERIES TRUST I
International Fund Columbia International Growth Fund
Shares Class Class Z
EXCELSIOR FUNDS TRUST COLUMBIA FUNDS SERIES TRUST I
International Equity Fund Columbia International Growth Fund
Institutional Class Class Z
