AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION dated as of May 1, 2006, is by
and among Liberty Variable Investment Trust (the "Acquired Trust"), on behalf of
each series thereof identified in Schedule A hereto as an Acquired Fund (each an
"Acquired Fund"); Columbia Funds Variable Insurance Trust, formerly named
SteinRoe Variable Investment Trust (the "Acquiring Trust"), on behalf of each
series thereof identified in Schedule A hereto as the corresponding 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 Sections 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 same 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 each 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 the corresponding Acquired Fund as set forth in
paragraph 1.2;
(b) Each Acquiring Fund will assume all of the corresponding Acquired
Fund's liabilities and obligations of any kind whatsoever,
whether absolute, accrued, contingent or otherwise, in existence
on the Closing Date (as defined in paragraph 1.2 hereof) (the
"Obligations"); 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 such class
equal to the number of shares of such class of the corresponding
Acquired Fund outstanding immediately prior to the consummation
of the transactions contemplated hereby. 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 the Acquired Fund on the Closing Date. Each Acquiring Fund
agrees that all rights to indemnification and all limitations of
liability existing in favor of the corresponding Acquired Fund's
current and former Trustees and officers, acting in their capacities
as such, under the corresponding Acquired Fund's organizational
documents as in effect as of the
date of this Agreement shall survive the reorganization as obligations
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 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 by the
corresponding Acquired Fund pursuant to paragraph 1.1. Such
liquidation and distribution will be accomplished by the transfer of
the Acquisition Shares then credited to the account of each Acquired
Fund on the books of the corresponding Acquiring Fund to open accounts
on the share records of the corresponding Acquiring Fund in the names
of the Acquired Fund's shareholders and representing the respective
pro rata number of Acquisition Shares due such shareholders. The
Acquiring Fund shall not be obligated to issue certificates
representing Acquisition Shares in connection with such exchange.
1.4. With respect to Acquisition Shares distributable pursuant to paragraph
1.3 to an Acquired Fund shareholder holding a certificate or
certificates for shares of the Acquired Fund, if any, on the Valuation
Date, the Acquired Fund will not permit such a shareholder to receive
Acquisition Share certificates therefor, exchange such Acquisition
Shares for shares of other investment companies, effect an account
transfer of such Acquisition Shares, or pledge or redeem such
Acquisition Shares until the Acquired Fund shareholder has surrendered
all his or her outstanding certificates for Acquired Fund shares or,
in the event of lost certificates, posted adequate bond.
1.5. If applicable, as soon as practicable after the Closing Date, the
Acquired Trust 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 Massachusetts 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 the Acquired
Fund.
2.2. Reserved.
3. CLOSING AND CLOSING DATE.
3.1. The Closing Date shall be on May 1, 2006, or on such other date as the
parties may agree. The Closing shall be held at 10:00 a.m. at the
Advisor'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 the Acquired Fund to the custodian for the corresponding Acquiring
Fund (the "Custodian"), for examination no later than five business
days preceding the Valuation Date. On the Closing Date, such portfolio
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securities and all the Acquired Fund's cash shall be delivered by the
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 [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 said
Exchange or elsewhere shall be disrupted so that accurate appraisal of
the value of the net assets of each Acquired Fund or the corresponding
Acquiring Fund is impracticable, the Closing Date shall be postponed
until the first business day after the day when trading shall have
been fully resumed and reporting shall have been restored; provided
that if trading shall not be fully resumed and reporting restored
within three business days of the Valuation Date, this Agreement may
be terminated by either the Acquired Fund or the corresponding
Acquiring Fund upon the giving of written notice to the other party.
3.4. At the Closing, each Acquired Fund or its transfer agent shall deliver
to the corresponding Acquiring Fund or its designated agent a list of
the names and addresses of the Acquired Fund's shareholders and the
number of outstanding shares of each class of the Acquired Fund owned
by each Acquired Fund shareholder, all as of the close of business on
the Valuation Date, certified by any Vice President, Secretary or
Assistant Secretary of the Acquired Fund. The Acquiring Trust will
provide to the Acquired Fund evidence satisfactory to the Acquired
Fund that the Acquisition Shares issuable pursuant to paragraph 1.1
have been credited to the Acquired Fund's account on the books of the
Acquiring Fund. On the Liquidation Date, each Acquiring Fund will
provide to the corresponding Acquired Fund evidence satisfactory to
the corresponding Acquired Fund that such Acquisition Shares have been
credited pro rata to open accounts in the names of the corresponding
Acquired Fund's shareholders as provided in paragraph 1.3.
3.5. At the Closing, each party shall deliver to the other such bills of
sale, instruments of assumption of liabilities, checks, assignments,
stock certificates, receipts or other documents as such other party or
its counsel may reasonably request in connection with the transfer of
assets, assumption of liabilities and 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 a series of the Acquired Trust that is duly
organized, validly existing and in good standing under the laws
of The Commonwealth of Massachusetts;
(b) The Acquired 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 Acquired Fund is a separate series thereof duly
designated in accordance with the applicable provisions of the
Declaration of Trust of the Acquired Trust and the 1940 Act, the
Acquired Fund is a duly registered investment company classified
as a management
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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;
(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 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, an unaudited
statement of assets and liabilities, statement of operations,
statement of changes in net assets and schedule of investments
for any subsequent semiannual period following the most recently
completed fiscal year), copies of which have been furnished to
the corresponding Acquiring Fund, fairly reflect the financial
condition and results of operations of the Acquired Fund as of
such dates and for the periods then ended in accordance with
generally accepted accounting principles consistently applied,
and the Acquired Fund has no known liabilities of a material
amount, contingent or otherwise, other than those shown on the
statements of assets 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 or net redemptions shall be deemed
to be in the ordinary course of business;
(h) As of the Closing Date, all federal and other tax returns and
reports of the Acquired Fund required by law to have been filed
by such date (giving effect to extensions) shall have been filed,
and all federal and other taxes shown to be due on such returns
and reports or on any assessment received shall have been paid,
or provisions shall have been made for the payment thereof. 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
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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
has duly filed all federal, state, local and foreign tax returns
which are required to have been filed, and all taxes of the
Acquired Fund which are due and payable have been paid except for
amounts that alone or in the aggregate would not reasonably be
expected to have a material adverse effect. 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) For all taxable years and all applicable quarters of the Acquired
Fund from the date of its inception, the assets of the Acquired
Fund have been sufficiently diversified that each segregated
asset account investing all its assets in the Acquired Fund was
adequately diversified within the meaning of Section 817(h) of
the Code and applicable regulations thereunder.
(k) All issued and outstanding shares of the Acquired Fund are, and
at the Closing Date will be, duly and validly issued and
outstanding, fully paid and non-assessable (except as set forth
in the Acquired Fund's then current prospectus or prospectuses or
statement or statements of additional information (collectively,
as amended or supplemented from time to time, the "Acquired Fund
Prospectus")) by the Acquired Fund and will have been issued in
compliance with all applicable registration or qualification
requirements of federal and state securities laws. No options,
warrants or other rights to subscribe for or purchase, or
securities convertible into, any shares of common stock of the
Acquired Fund are outstanding and none will be outstanding on the
Closing Date;
(l) 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;
(m) The execution, delivery and performance of this Agreement has
been duly authorized constitutes 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;
(n) 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;
(o) [Reserved];
(p) 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 "Blue Sky" laws (which terms
used herein shall include the laws of the District of Columbia
and of Puerto Rico);
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(q) 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;
(r) [Reserved]; and
(s) 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 that is
duly organized, validly existing and in good standing under the
laws of The Commonwealth of Massachusetts;
(b) The Acquiring Trust is a duly registered investment company
classified as a management company of the open-end type and its
registration with the Securities and Exchange Commission as an
investment company under the 1940 Act is in full force and
effect, and the Acquiring Fund is a separate series thereof duly
designated in accordance with the applicable provisions of the
Declaration of Trust of the Acquiring Trust and the 1940 Act;
(c) 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;
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(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 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) Following the reorganization Acquiring Fund will take all steps
necessary to be sufficiently diversified so that each segregated
asset account investing all its assets in the Acquiring Fund will
be adequately diversified within the meaning of Section 817(h) of
the Code and applicable regulations thereunder.
(l) The Acquiring Fund has no shares of beneficial interest issued
and outstanding;
(m) Reserved;
(n) The execution, delivery and performance of this Agreement have
been duly authorized by all necessary action on the part of the
Acquiring Fund, and 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;
(o) The Acquisition Shares to be issued and delivered to the
corresponding Acquired Fund pursuant to the terms of this
Agreement will at the Closing Date have been duly authorized and,
when so issued and delivered, will be duly and validly issued
shares in the Acquiring Fund, and will be fully paid and
non-assessable (except as set forth in the Acquiring Fund
Prospectus) by the Acquiring Fund, and no shareholder of the
Acquiring Fund will have any preemptive right of subscription or
purchase in respect thereof;
(p) Reserved; and
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(q) 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 "Blue Sky" laws
(which term as used herein shall include the laws of the District
of Columbia and of Puerto Rico).
5. COVENANTS OF EACH ACQUIRED FUND AND THE CORRESPONDING ACQUIRING FUND.
Each Acquired Fund and the corresponding Acquiring Fund hereby covenants
and agrees with the other as follows:
5.1. 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. Reserved.
5.3. Reserved.
5.4. Reserved.
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 which 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 "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:
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(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;
(b) This Agreement has been duly authorized, executed and delivered
on behalf of the corresponding Acquiring Fund and, assuming the
due authorization, execution and delivery of this Agreement by
the Acquired Fund 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) Reserved;
(h) The Acquiring Trust is registered with the Securities and
Exchange Commission as an investment company under the 1940 Act;
and
(i) To the knowledge of such counsel, 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
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.
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:
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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 Ropes &
Xxxx LLP, dated the Closing Date and in a form satisfactory to the
Acquiring Fund, to the following effect:
(a) The Acquired 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;
(b) This Agreement has been duly authorized, executed and delivered
on behalf of the corresponding Acquired Fund and, assuming the
due authorization, execution and delivery of this Agreement by
the Acquiring Fund, 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) Reserved;
(g) The Acquired Trust 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, 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
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body, which materially and adversely affects its business or its
ability to consummate the transaction contemplated thereby.
7.3. [Reserved]
7.4. The custodian of the corresponding Acquired Fund shall have delivered
to the Acquiring Fund a certificate identifying all of the assets of
the corresponding Acquired Fund held by such custodian as of the
Valuation Date.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH 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. Shareholders of the Acquired Fund shall have elected the nominees for
Trustees of the Acquired Fund, set forth in the Proxy Statement.
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.
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. Reserved.
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, for federal income tax purposes:
(a) The transactions contemplated by this Agreement will constitute a
reorganization within the meaning of Section 368(a) of the Code,
and the Acquired Fund and the corresponding Acquiring Fund will
each be "a party to a reorganization" within the meaning of
Section 368(b) of the Code;
(b) No gain or loss will be recognized by the Acquired Fund (i) upon
the transfer of its assets to the corresponding Acquiring Fund in
exchange for the Acquisition Shares and the assumption by the
corresponding Acquiring Fund of the liabilities of the Acquired
Fund or (ii) upon the distribution of the Acquisition Shares by
the Acquired Fund to its separate accounts as shareholders in
liquidation, as contemplated in paragraph 1 hereof;
(c) No gain or loss will be recognized by the corresponding Acquiring
Fund upon receipt of the assets of the Acquired Fund in exchange
for the assumption of liabilities and obligations and issuance of
the Acquisition Shares as contemplated in paragraph 1 hereof;
(d) The tax basis of the assets of the Acquired Fund acquired by the
corresponding Acquiring Fund will be the same as the tax basis of
such assets in the hands of the Acquired Fund immediately prior
to the transfer, and the holding period of the assets of the
Acquired
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Fund in the hands of the corresponding Acquiring Fund will
include the period during which those assets were held by the
Acquired Fund;
(e) The holding periods of the assets of the Acquired Fund in the
hands of the corresponding Acquiring Fund will include the
periods during which such assets were held by the Acquired Fund;
(f) No gain or loss will be recognized by the Acquired Fund's
separate accounts as shareholders upon the exchange of all of
their shares of the Acquired Fund for the Acquisition Shares;
(g) The aggregate tax basis of the Acquisition Shares to be received
by separate accounts as a shareholder of the Acquired Fund will
be the same as the aggregate tax basis of the Acquired Fund's
shares exchanged therefor;
(h) The Acquired Fund separate account's holding period for the
Acquisition Shares to be received will include the period during
which the Acquired Fund's shares exchanged therefor were held,
provided that such separate account held the Acquired Fund's
shares as a capital asset on the date of the exchange; and
(i) The corresponding Acquiring Fund will succeed to and take into
account the items of the Acquired Fund described in Section
381(c) of the Code, subject to the conditions and limitations
specified in Sections 381, 382, 383 and 384 of the Code and the
regulations thereunder.
The opinion will be based on certain factual certifications made by
officers of the Acquired Fund and Acquired Trust and the corresponding
Acquiring Fund and Acquiring Trust and will also be based on customary
assumptions. The opinion is not a guarantee that the tax consequences
of the relevant Acquisition will be as described above.
Ropes & Xxxx LLP will express no view with respect to the effect of
the Acquisition 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.
8.6. At any time prior to the Closing, any of the foregoing conditions of
this Agreement may be waived jointly by the Board of each of the
Acquired Fund and the corresponding Acquiring Fund, 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 each 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.
-12-
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, 1.3, 1.5,
5.4, 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 each 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, 2007, 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 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.
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, 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
-13-
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 and the
Acquired Trust as indicated in Schedule A, is on file with the
Secretary of The Commonwealth of Massachusetts, and notice is hereby
given that no trustee, officer, agent or employee of either the
Acquiring Trust or Acquired 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 and the
corresponding Acquired Fund.
[THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK.]
-14-
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 its corporate seal to be affixed thereto and attested by its
Secretary or Assistant Secretary.
On behalf of the Acquired Trust, on
further behalf of each of its Acquired
Funds
By: /s/ J. Xxxxx Xxxxxxxxxxx
------------------------------------
Name: J. Xxxxx Xxxxxxxxxxx
Title: Treasurer
On behalf of the Acquiring Trust, on
further behalf of each of its Acquiring
Funds
By: /s/ J. Xxxxx Xxxxxxxxxxx
------------------------------------
Name: J. Xxxxx Xxxxxxxxxxx
Title: Treasurer
Solely for purposes of Paragraph 9.2 of
the Agreement
COLUMBIA MANAGEMENT ADVISORS, LLC
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
ATTEST:
By: /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Secretary
Signature Page for Agreement and Plan of Reorganization
SCHEDULE A
ACQUIRED TRUST ACQUIRED FUNDS ACQUIRING TRUST ACQUIRING FUNDS
---------------- ---------------------------------------- ------------------ ----------------------------------------
Liberty Variable Columbia International Fund, Variable Columbia Funds Columbia International Fund, Variable
Investment Trust Series Variable Insurance Series
Trust(1)
Liberty Growth & Income Fund, Variable Columbia Large Cap Value Fund, Variable
Series Series(2)
Liberty Select Value Fund, Variable Columbia Mid Cap Value Fund, Variable
Series Series(3)
Liberty S&P 500 Index Fund, Variable Columbia S&P 500 Index Fund, Variable
Series Series(4)
Colonial Small Cap Value Fund, Variable Columbia Small Cap Value Fund, Variable
Series Series(5)
Colonial Strategic Income Fund, Variable Columbia Strategic Income Fund, Variable
Series Series(6)
(1) Formerly named SteinRoe Variable Investment Trust
(2) Formerly named Liberty Growth & Income Fund, Variable Series
(3) Formerly named Liberty Select Value Fund, Variable Series
(4) Formerly named Liberty S&P 500 Index Fund, Variable Series
(5) Formerly named Colonial Small Cap Value Fund, Variable Series
(6) Formerly named Colonial Strategic Income Fund, Variable Series
