EXHIBIT 77Q1(g)
AGREEMENT AND PLAN OF
REORGANIZATION
BY AND BETWEEN
FIRSTAR FUNDS, INC.
AND
FIRSTAR SELECT FUNDS
DATED AS OF AUGUST 15, 2000
[THIS PAGE INTENTIONALLY LEFT BLANK]
1. CERTAIN DEFINITIONS.........................................................1
2. THE REORGANIZATION..........................................................2
3. CALCULATIONS................................................................3
4. VALUATION OF ASSETS.........................................................4
5. VALUATION TIME..............................................................4
6. EFFECTIVE TIME OF THE REORGANIZATION........................................5
7. TERMINATION OF SELECT.......................................................5
8. CERTAIN REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF SELECT.....5
9. CERTAIN REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF FIRSTAR....8
10.SHAREHOLDER ACTION ON BEHALF OF THE SELECT FUND............................10
11.SHAREHOLDER ACTION ON BEHALF OF FIRSTAR....................................11
12.N-1A POST-EFFECTIVE AMENDMENT AND PROXY SOLICITATION MATERIALS.............11
13.FIRSTAR CONDITIONS.........................................................11
00.XXXXXX CONDITIONS..........................................................13
00.XXX OPINION................................................................15
00.XXX DOCUMENTS..............................................................16
17.FURTHER ASSURANCES.........................................................16
18.TERMINATION OF REPRESENTATIONS AND WARRANTIES..............................17
19.TERMINATION OF AGREEMENT...................................................17
20.AMENDMENT AND WAIVER.......................................................17
21.GOVERNING LAW..............................................................17
22.SUCCESSORS AND ASSIGNS.....................................................17
23.BENEFICIARIES..............................................................17
24.NOTICES....................................................................18
25.EXPENSES...................................................................18
26.ENTIRE AGREEMENT...........................................................19
27.COUNTERPARTS...............................................................19
00.XX BROKERS OR FINDERS......................................................19
29.VALIDITY...................................................................19
30.EFFECT OF FACSIMILE SIGNATURE..............................................19
31.HEADINGS...................................................................19
32.FIRSTAR LIABILITY..........................................................19
00.XXXXXX LIABILITY...........................................................19
AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as of
the 15th day of August, 2000, by Firstar Funds, Inc. ("Firstar"), a Wisconsin
corporation, and Firstar Select Funds ("Select"), a business trust established
under the laws of the State of Ohio.
BACKGROUND
WHEREAS, each of the parties hereto is an open-end management investment
company registered with the Securities and Exchange Commission (the "SEC") under
the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, Select offers one investment portfolio known as the Firstar Select
REIT-Plus Fund (the "Select Fund");
WHEREAS, Firstar has recently organized, or will soon organize, an
investment portfolio known as the Firstar REIT Fund (the "Firstar Fund"):
WHEREAS, each of the parties hereto desires, upon the terms and subject to
the conditions set forth herein, to enter into and perform the reorganization
described herein (the "Reorganization"), pursuant to which, among other things,
at the time hereinafter set forth, (1) the Select Fund shall transfer
substantially all of its Assets (as hereinafter defined), subject to
substantially all of its Liabilities (as hereinafter defined), to the Firstar
Fund, in exchange for Institutional Shares issued by the Firstar Fund (the
shares issued to the Select Fund by the Firstar Fund in exchange for
substantially all of the Assets, subject to substantially all of the
Liabilities, of the Select Fund in connection with the Reorganization,
collectively, "Firstar Fund Shares"), and (2) the Select Fund shall then
distribute to its shareholders of record, the Firstar Fund Shares received by or
on behalf of the Select Fund;
WHEREAS, each of the parties intends that the Firstar Fund will have
nominal assets and liabilities before the Reorganization and will continue the
investment operations of the Select Fund; and
WHEREAS, the parties intend that in connection with the Reorganization,
Select shall be deregistered and terminated as described in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
13. Certain Definitions. As used herein,
(a) The term "Assets" shall mean all property and assets of every
description and of any nature whatsoever including, without
limitation, cash, cash equivalents, securities, claims (whether
absolute or contingent, known or unknown, accrued or unaccrued),
receivables (including dividend and interest receivables), deferred or
prepaid expenses, good will and other intangible property, books and
records, and all interests, rights, privileges and powers, other than
cash in an amount necessary to pay any unpaid dividends and
distributions as provided in Section 2(d) hereof.
(b) The term "Liabilities" shall mean all existing and future liabilities
and obligations of any nature, whether accrued, absolute, contingent
or otherwise, including, with respect to Select and the Select Fund,
any obligation to indemnify Select's current Trustees, acting in their
capacities as such, to the fullest extent permitted by law and
Select's Amended and Restated Declaration of Trust (the "Declaration
of Trust") and By-Laws, in each case, as in effect as of the date of
this Agreement.
14. The Reorganization.
(a) At the Effective Time of the Reorganization (as hereinafter defined),
(i) the Select Fund shall transfer, assign and convey to the Firstar
Fund substantially all of the Assets, subject to substantially all of
the Liabilities, of the Select Fund, and (ii) the Firstar Fund shall
accept all such Assets and assume all such Liabilities, such that at
and after the Effective Time of the Reorganization: (1) substantially
all of the Assets of the Select Fund shall become and be Assets of the
Firstar Fund, (2) substantially all of the Liabilities of the Select
Fund shall become and be liabilities of, and shall attach to, the
Firstar Fund, and (3) such Liabilities of the Select Fund may
thenceforth be enforced only against the Firstar Fund to the same
extent as if such Liabilities had been incurred by the Firstar Fund,
subject to any defense and/or set off that Select or the Select Fund
was entitled to assert immediately prior to the Effective Time of the
Reorganization with respect to any such Liability, and subject to any
defense and/or set off that Firstar or the Firstar Fund may from time
to time be entitled to assert against the creditor thereof.
(b) In exchange for the transfer of substantially all of the Assets of the
Select Fund to the Firstar Fund as provided in paragraph (a) above,
the Firstar Fund shall assume substantially all of the Liabilities of
the Select Fund as provided in paragraph (a) above and shall also
simultaneously issue, at the Effective Time of the Reorganization, to
the Select Fund, the number of full and fractional (to the third
decimal place) Firstar Fund Shares of the Firstar Fund, determined and
adjusted as provided in Section 3 hereof.
(c) Immediately upon receipt of the Firstar Fund Shares of the Firstar
Fund in accordance with paragraph (b) above, the Select Fund shall
distribute, in complete liquidation, pro rata to the shareholders of
record of the Select Fund at the Effective Time of the Reorganization
(such shareholders of record of the Select Fund as of such time,
collectively, the "Recordholders"), the Firstar Fund Shares that have
been so received as follows: Recordholders of Class Y Shares of the
Select Fund will be credited with full and fractional Institutional
Shares of the Firstar Fund with respect to such Class Y Shares and
Recordholders of Class B Shares of the Select Fund will be credited
with full and fractional Institutional Shares of the Firstar Fund with
respect to such Class B Shares.
(d) At the Effective Time of the Reorganization, each shareholder of
record of the Select Fund as of the record date (the "Distribution
Record Date") with respect to any unpaid dividends and other
distributions that were declared before the Effective Time of the
Reorganization shall have the right to receive such unpaid dividends
and distributions with respect to the shares of the Select Fund that
such person held on the Distribution Record Date.
(e) Promptly upon receipt of instructions from Select delivered pursuant
to this paragraph (e), Firstar shall, in accordance with such
instructions, record on its books the ownership, by the Recordholders,
of the number of Firstar Fund Shares distributed to such
Recordholders.
(f) Promptly after the Select Fund has liquidated as provided in paragraph
(c) above, Select shall cancel on its books all of the shares
(including, without limitation, any treasury shares) of the Select
Fund, and any such shares issued and outstanding prior to such
cancellation shall thereafter represent only the right to receive the
Firstar Fund Shares issued to the Select Fund in accordance with
paragraph (b) above.
(g) Upon completion of the tasks required by paragraphs (a) through (f)
above with respect to the Select Fund, the transfer books of Select
with respect to the Select Fund shall be permanently closed.
15. Calculations.
(a) The number of Firstar Fund Shares issued to the Select Fund pursuant
to Section 2(b) hereof will be determined as follows:
(1) The value (determined as of the Applicable Valuation Time (as
hereinafter defined)) of the Select Fund's Assets that are
conveyed, less the Liabilities that are assumed, at the Effective
Time of the Reorganization (as hereinafter defined) and that are
attributable to Class Y Shares of the Select Fund shall be
divided by the net asset value of one Institutional Share of the
Firstar Fund that is to be delivered with respect thereto; and
(2) The value (determined as of the Applicable Valuation Time (as
hereinafter defined)) of the Select Fund's Assets that are
conveyed, less the Liabilities that are assumed, at the Effective
Time of the Reorganization (as hereinafter defined) and that are
attributable to Class B Shares of the Select Fund shall be
divided by the net asset value of one Institutional Share of the
Firstar Fund that is to be delivered with respect thereto.
(b) The net asset value of the Firstar Fund Shares shall be computed at
the Valuation Time (as hereinafter defined) in the manner set forth in
the Firstar Fund's then current prospectus under the Securities Act of
1933, as amended (the "1933 Act"). The net asset value of shares of
each class of the Select Fund shall be computed at the Valuation Time
in the manner set forth in the Select Fund's then current prospectus
under the 1933 Act.
16. Valuation of Assets.
(a) The value of the Assets of the Select Fund shall be the value of such
Assets computed as of the time at which the Select Fund's net asset
value is calculated at the Valuation Time (as hereinafter defined).
The net asset value of the Assets of the Select Fund to be transferred
to the Firstar Fund shall be computed by Select and shall be subject
to adjustment by the amount, if any, agreed to by Select and the
Select Fund and Firstar and the Firstar Fund. In determining the value
of the securities transferred by the Select Fund to the Firstar Fund,
each security shall be priced in accordance with the pricing policies
and procedures of the Select Fund as described in its then current
prospectus and statement of additional information. For such purposes,
price quotations and the security characteristics relating to
establishing such quotations shall be determined by Select, provided
that such determination shall be subject to the approval of Firstar.
Firstar and Select agree to use all commercially reasonable efforts to
resolve, prior to the Valuation Time, any material pricing differences
between the prices of portfolio securities determined in accordance
with the pricing policies and procedures of the Firstar Fund and those
determined in accordance with the pricing policies and procedures of
the Select Fund.
(b) At least fifteen (15) business days prior to the Effective Time of the
Reorganization (as hereinafter defined), the Select Fund will provide
the Firstar Fund with a schedule of its securities and other Assets
and Liabilities of which it is aware, and the Firstar Fund will
provide the Select Fund with a copy of the current investment
objective and policies of the Firstar Fund. The Select Fund reserves
the right to sell any of the securities or other Assets shown on the
list of the Select Fund's Assets prior to the Effective Time of the
Reorganization but will not, without the prior approval of Firstar,
acquire any additional securities other than securities which the
Firstar Fund is permitted to purchase in accordance with its stated
investment objective and policies. At least ten (10) business days
prior to the Effective Time of the Reorganization, the Firstar Fund
will advise the Select Fund of any investments of the Select Fund
shown on such schedule which the Firstar Fund would not be permitted
to hold, pursuant to its stated investment objective and policies or
otherwise. In the event that the Select Fund holds any investments
that the Firstar Fund would not be permitted to hold under its stated
investment objective or policies, the Select Fund, if requested by the
Firstar Fund and to the extent permissible and consistent with the
Select Fund's own investment objective and policies, will dispose of
such securities prior to the Effective Time of the Reorganization.
17. Valuation Time. The valuation time shall be 4:00 p.m., Eastern Time, on
November 24, 2000, or such earlier or later date and time as may be mutually
agreed in writing by an authorized officer of each of the parties (the
"Valuation Time"). Notwithstanding anything herein to the contrary, in the event
that at the Valuation Time, (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 such exchange or elsewhere shall be disrupted so that, in the
judgment of Firstar or Select, accurate appraisal of the value of the net assets
of the Firstar Fund or the Select Fund is impracticable, the Valuation Time
shall be postponed until the first business day after the day when trading shall
have been fully resumed without restriction or disruption, reporting shall have
been restored and accurate appraisal of the value of the net assets of the
Firstar Fund and the Select Fund is practicable in the judgment of Firstar and
Select.
18. Effective Time of the Reorganization. Delivery by the Select Fund of
its Assets to the Firstar Fund, delivery by the Firstar Fund of its Firstar Fund
Shares to the Select Fund, and liquidation of the Select Fund, in each case,
pursuant to Section 2 hereof, shall occur at the opening of business on the next
business day following the Valuation Time (or on such other date following the
Valuation Time as is agreed to in writing by an authorized officer of each of
the parties). The date and time at which the above-described actions are taken
shall be the "Effective Time of the Reorganization". To the extent any Assets of
the Select Fund are, for any reason, not transferred to the Firstar Fund at the
Effective Time of the Reorganization, Select shall cause such Assets to be
transferred in accordance with this Agreement at the earliest practicable date
thereafter.
19. Termination of Select. Promptly following the Effective Time of the
Reorganization, Select shall file an application pursuant to Section 8(f) of the
1940 Act for an order declaring that Select has ceased to be an investment
company; provided that until such order is granted, Select shall continue to
comply with all of its obligations as a registered investment company under the
1940 Act and under any and all other applicable state and federal securities
laws (including, in the case of each of the foregoing, the rules and regulations
thereunder). Select shall, promptly after the Effective Time of the
Reorganization, file any final regulatory reports, including, but not limited
to, any Form N-SAR and Rule 24f-2 Notice, with respect to the Select Fund. All
reporting and other obligations of Select shall remain the exclusive
responsibility of Select up to and including the date on which Select is
deregistered and terminated. In addition, promptly following the Effective Time
of the Reorganization, Select shall be terminated pursuant to its Declaration of
Trust and shall take all other steps necessary and proper to effect its complete
termination. Without limiting the generality of the foregoing, (a) the affairs
of Select shall be immediately wound up, its contracts discharged and its
business liquidated; and (b) the Trustees of Select shall execute and lodge
among the records of Select an instrument in writing setting forth the fact of
such termination.
20. Certain Representations, Warranties, Covenants and Agreements of
Select. Select, on behalf of itself and the Select Fund, represents, warrants,
covenants and agrees as follows:
(a) Select is a business trust duly created pursuant to its Declaration of
Trust under the laws of the State of Ohio on February 28, 1997 and is
validly existing and in good standing under the laws of the State of
Ohio.
(b) Select is duly and appropriately registered with the SEC as an
open-end, management investment company under the 1940 Act and its
registration with the SEC as such an investment company is in full
force and effect as of the date hereof.
(c) Select and the Select Fund each currently has the power to own all of
its Assets and, subject to the approval of shareholders referred to in
Section 10 hereof, to carry out and consummate the transactions
contemplated herein. Select and the Select Fund each currently has all
necessary federal, state and local authorizations, licenses and
approvals necessary or desirable to carry on its business as such
business is now being conducted and, upon receipt by Select of an
exemptive order under Section 17 of the 1940 Act, to consummate the
transactions contemplated by this Agreement.
(d) This Agreement has been duly and validly authorized, executed and
delivered by Select, and represents the legal, valid and binding
obligation of Select, enforceable against Select in accordance with
the terms hereof, subject as to enforcement to the effect of
bankruptcy, insolvency, reorganization, arrangement, moratorium,
fraudulent transfer or conveyance, and other similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles and provided that the provisions of this
Agreement intended to limit liability for particular matters to an
investment portfolio and its assets, including but not limited to
Sections 32 and 33 of this Agreement, may not be enforceable. The
execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated by this Agreement will
not, violate Select's Declaration of Trust or By-Laws or any other
organizational document of Select or any agreement, contract or other
arrangement to which Select is a party or by which Select or its
properties or Assets may be bound, subject or affected.
(e) The Select Fund has elected to qualify, and has qualified as of and
since its first taxable year, as a regulated investment company under
Part I of Subchapter M of Subtitle A, Chapter 1, of the Internal
Revenue Code of 1986, as amended (the "Code"), and the Select Fund
currently qualifies, and shall continue to qualify, as a regulated
investment company under such Part for its taxable year that includes
the date on which the Effective Time of the Reorganization occurs.
(f) All federal, state, local and foreign income, profits, franchise,
sales, withholding, customs, transfer and other taxes, including,
without limitation, interest, additions to tax, and penalties thereon
(collectively, "Taxes"), that relate to the Assets of Select or of the
Select Fund, and that are either due or properly shown to be due on
any return filed by Select or by the Select Fund have been fully and
timely paid or provided for; and, to Select's knowledge, there are no
levies, liens, or other encumbrances relating to Taxes existing,
threatened or pending with respect to the Assets of Select (or with
respect to any Assets of the Select Fund).
(g) All federal and other tax returns and reports of Select and the Select
Fund required by law to be filed on or before the Effective Time of
the Reorganization, have been or will be filed in a timely manner, and
all federal and other taxes owed by Select on behalf of the Select
Fund, have been or will be timely paid so far as due, and to the best
of Select's knowledge, no such return is currently under audit and no
assessment has been asserted with respect to any such return.
(h) The financial statements of the Select Fund for its fiscal year ended
March 31, 2000, examined by XxXxxxx & Associates CPA's, Inc., a copy
of which has been previously furnished to Firstar, present fairly and
in conformity with generally accepted accounting principles
consistently applied (i) the financial condition of the Select Fund as
of the date indicated therein and (ii) the results of operations of
the Select Fund for the periods indicated therein.
(i) At the Valuation Time and the Effective Time of the Reorganization,
all Liabilities of the Select Fund which are required to be reflected
in the net asset value per share of shares of the Select Fund in
accordance with applicable law are reflected in the net asset value
per share of the Select Fund.
(j) To Select's knowledge, there are currently, and at the Valuation Time
and the Effective Time of the Reorganization there shall be, no legal,
administrative or other proceedings or investigations pending or, to
Select's knowledge, threatened against or otherwise involving Select
or the Select Fund which could result in liability on the part of
Select or the Select Fund.
(k) Subject to the approval of shareholders referred to in Section 10
hereof, at both the Valuation Time and the Effective Time of the
Reorganization, Select, on behalf of the Select Fund, shall have full
right, power and authority to sell, assign, transfer and deliver the
Assets of the Select Fund. Upon delivery and payment for the Assets of
the Select Fund as contemplated in Section 2(b) above, the Firstar
Fund shall acquire good and marketable title to the Assets of the
Select Fund, in each case, free and clear of all liens and
encumbrances, and subject to no restrictions on the ownership or
transfer thereof (except as imposed by federal or state securities
laws).
(l) Subject to the approval of shareholders referred to in Section 10
hereof, no consent, approval, authorization or order of any court or
governmental authority, or of any other person or entity, is required
for the consummation by Select and by the Select Fund of the
transactions contemplated by this Agreement, except as may be required
by the 1933 Act, the Securities Exchange Act of 1934, as amended (the
"1934 Act"), the 1940 Act or state securities laws (including, in the
case of each of the foregoing, the rules and regulations thereunder).
(m) At the time of the shareholders' meeting referred to in Section 10
hereof and at the Effective Time of the Reorganization, the proxy
statement of Select shall, with respect to Select and the Select Fund:
(i) comply in all material respects with the provisions of the 1934
Act and the 1940 Act (including, in the case of each of the foregoing,
the rules and regulations thereunder), and (ii) not contain any untrue
statement of material fact or omit to state a material fact that is
required to be stated therein or that is necessary to make the
statements thereon not misleading.
(n) All of the issued and outstanding shares of the Select Fund have been
duly and validly issued, are fully paid and non-assessable, and were
offered for sale and sold in conformity with all applicable federal
and state securities laws (including, in the case of each of the
foregoing, the rules and regulations thereunder). All shares of the
Select Fund issued on or after the date hereof shall be duly and
validly issued, fully paid and non-assessable and offered for sale and
sold in conformity with all applicable federal and state securities
laws (including, in the case of each of the foregoing, the rules and
regulations thereunder). No shareholder of the Select Fund currently
has, or will hereafter have, any statutory or contractual preemptive
right of subscription or purchase in respect of any shares of the
Select Fund.
(o) Select shall not sell or otherwise dispose of any Firstar Fund Shares
received in the transactions contemplated herein, except in
distribution to the Recordholders as contemplated herein.
21. Certain Representations, Warranties, Covenants and Agreements of
Firstar. Firstar, on behalf of itself and the Firstar Fund, represents,
warrants, covenants and agrees as follows:
(a) Firstar is a corporation duly organized, validly existing and in good
standing under the laws of the State of Wisconsin.
(b) Firstar is duly and appropriately registered with the SEC as an
open-end, management investment company under the 1940 Act and its
registration with the SEC as such an investment company is in full
force and effect as of the date hereof.
(c) Firstar currently has, and upon effectiveness of the Firstar
Post-Effective Amendment (as hereinafter defined) the Firstar Fund
will have, the power to own all of its Assets and, subject to the
approval of shareholders and the filing of the Articles of Amendment
to the Articles of Incorporation of Firstar referred to in Section 11
hereof, to carry out and consummate the transactions contemplated
herein. Firstar currently has, and upon effectiveness of the Firstar
Post-Effective Amendment the Firstar Fund will have, all necessary
federal, state and local authorizations, licenses and approvals
necessary or desirable to carry on its business as such business is
now being conducted and, upon the filing of the Articles of Amendment
to the Articles of Incorporation of Firstar referred to in Section 11
hereof and receipt by Firstar of an exemptive order under Section 17
of the 1940 Act, to consummate the transactions contemplated by this
Agreement.
(d) This Agreement has been duly and validly authorized, executed and
delivered by Firstar, and represents the legal, valid and binding
obligation of Firstar, enforceable against Firstar in accordance with
the terms hereof, subject as to enforcement to the effect of
bankruptcy, insolvency, reorganization, arrangement, moratorium,
fraudulent transfer or conveyance, and other similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles and provided that the provisions of this
Agreement intended to limit liability for particular matters to an
investment portfolio and its assets, including but not limited to
Sections 32 and 33 of this Agreement, may not be enforceable. Subject
to the filing of the Articles of Amendment to the Articles of
Incorporation of Firstar referred to in Section 11 hereof, the
execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated by this Agreement will
not, violate the Articles of Incorporation or Bylaws of Firstar or any
other organizational document of Firstar, or any agreement, contract
or other arrangement to which Firstar is a party or by which Firstar
or its properties or Assets may be bound, subject or affected.
(e) The Firstar Fund intends to qualify, and to continue to qualify, as a
regulated investment company under Part I of Subchapter M of Subtitle
A, Chapter 1, of the Code.
(f) All Taxes that relate to Assets of Firstar or of the Firstar Fund, and
that are either due or properly shown to be due on any return filed by
Firstar or by the Firstar Fund, have been fully and timely paid or
provided for; and to Firstar's knowledge, there are no levies, liens
or other encumbrances relating to Taxes existing, threatened or
pending with respect to the Assets of Firstar (or with respect to any
Assets of the Firstar Fund).
(g) All federal and other tax returns and reports of Firstar and the
Firstar Fund required by law to be filed on or before the Effective
Time of the Reorganization have been or will be filed in a timely
manner, and all federal and other taxes owed by Firstar on behalf of
the Firstar Fund have been or will be timely paid so far as due, and
to the best of Firstar's knowledge, no such return is currently under
audit and no assessment has been asserted with respect to any such
return.
(h) The financial statements of Firstar for its fiscal year ended October
31, 1999, examined by PricewaterhouseCoopers LLP, a copy of which has
been previously furnished to Select, present fairly and in conformity
with generally accepted accounting principles consistently applied (i)
the financial condition of Firstar as of the date indicated therein
and (ii) the results of operations of Firstar for the periods
indicated.
(i) At the Valuation Time and the Effective Time of the Reorganization,
all Liabilities of the Firstar Fund which are required to be reflected
in the net asset value per share of the Firstar Fund Shares issued by
the Firstar Fund pursuant to this Agreement in accordance with
applicable law are reflected in the net asset value per share of the
Firstar Fund.
(j) To Firstar's knowledge, there are currently, and at the Valuation Time
and the Effective Time of the Reorganization there shall be, no legal,
administrative or other proceedings or investigations pending or, to
Firstar's knowledge, threatened against or otherwise involving Firstar
or the Firstar Fund which could result in liability on the part of
Firstar or the Firstar Fund.
(k) At the time of the shareholders' meeting referred to in Section 10
hereof and at the Effective Time of the Reorganization, the proxy
statement of Select shall, with respect to Firstar and the Firstar
Fund: (i) comply in all material respects with the provisions of the
1934 Act and the 1940 Act (including, in the case of each of the
foregoing, the rules and regulations thereunder), and (ii) not contain
any untrue statement of material fact or omit to state a material fact
that is required to be stated therein or that is necessary to make the
statements thereon not misleading.
(l) No consent, approval, authorization or order of any court or
governmental authority, or of any other person or entity is required
for the consummation by Firstar and by the Firstar Fund of the
transactions contemplated by this Agreement except (i) the filing of
Articles of Amendment to the Articles of Incorporation of Firstar
referred to in Section 11 hereof and (ii) as may be required by the
1933 Act, 1934 Act, the 1940 Act or state securities laws (including,
in the case of each of the foregoing, the rules and regulations
thereunder).
(m) The Firstar Fund Shares to be issued and delivered to the Select Fund
pursuant to the terms hereof shall have been duly authorized as of the
Effective Time of the Reorganization and, when so issued and
delivered, shall be registered under the 1933 Act, duly and validly
issued, and fully paid and non-assessable, and no shareholder of the
Firstar Fund shall have any statutory or contractual preemptive right
of subscription or purchase in respect thereof.
(n) For the period beginning at the Effective Time of the Reorganization
and ending not less than four years thereafter, Firstar shall provide
or cause to be provided, liability coverage for the officers and
Trustees of Select which covers the actions of such Trustees and
officers of Select for the period they served as such and is at least
comparable to the liability coverage currently applicable to the
Trustees and officers of Select. Firstar agrees that all rights to
indemnification existing in favor of the Trustees of Select, acting in
their capacities as such, under Select's Declaration of Trust as in
effect as of the date of this Agreement shall survive the
Reorganization as obligations of Firstar, shall continue in full force
and effect without any amendment thereto, and shall constitute rights
which may be asserted against Firstar.
22. Shareholder Action on Behalf of the Select Fund. As soon as practicable
after SEC clearance of the proxy materials referred to in Section 11(b) below,
but in any event prior to the Effective Time of the Reorganization, the Board of
Trustees of Select shall call, and Select shall hold, a meeting of the
shareholders of the Select Fund for the purpose of considering and voting upon:
(a) Approval of this Agreement and the transactions contemplated hereby,
including, without limitation, the transfer by the Select Fund to the
Firstar Fund of substantially all of the Assets belonging to the
Select Fund and the assumption by the Firstar Fund of substantially
all of the Liabilities of the Select Fund, in exchange for the Firstar
Fund Shares issued by the Firstar Fund to the Select Fund in
accordance with, and at the time set forth in, Section 2 hereof;
(b) The liquidation of the Select Fund through the distribution of the
Firstar Fund Shares received by such Select Fund to the Recordholders
of the Select Fund as described in this Agreement;
(c) The deregistration of Select under the 1940 Act and the termination of
Select under state law;
(d) Approval of the Investment Advisory Agreement between Firstar and
Firstar Investment Research & Management Company, LLC ( "FIRMCO" )
with respect to the Firstar Fund; and
(e) Such other matters as may be determined by the Board of Trustees of
Select.
23. Shareholder Action on Behalf of Firstar. Prior to the Effective Time of
the Reorganization and as a condition to the consummation of the transactions
contemplated hereby, (i) the Board of Directors of Firstar shall call, and
Firstar shall hold, a meeting of the shareholders of Firstar for the purpose of
considering and voting upon the approval of Articles of Amendment to the
Articles of Incorporation of Firstar to enable Firstar to issue more than 30
classes of common stock (the "Articles of Amendment"), and such other matters as
may be determined by the Board of Directors of Firstar, and (ii) provided that
the approval required of Firstar's shareholders is obtained, the Articles of
Amendment shall be filed with the office of the Department of Financial
Institutions of the State of Wisconsin.
24. N-1A Post-Effective Amendment and Proxy Solicitation Materials.
(a) Firstar shall file (i) a post-effective amendment to its Registration
Statement on Form N-1A (File Nos. 33-18255 and 811-5380) with the SEC
as promptly as practicable registering the Firstar Fund and its shares
under the 1933 Act and 1940 Act, and such supplements and amendments
thereto as may be required (the "Firstar Post-Effective Amendment"),
and (ii) proxy solicitation materials of Firstar with the SEC pursuant
to Section 14(a) of the 1934 Act and Section 20(a) of the 1940 Act
with respect to the matters referred to in Section 11 above, and such
supplements and amendments thereto as may be required.
(b) Select shall file proxy solicitation materials of the Select Fund with
the SEC pursuant to Section 14(a) of the 1934 Act and Section 20(a) of
the 1940 Act with respect to the matters referred to in Section 10
above, and such supplements and amendments thereto as may be required.
25. Firstar Conditions. The obligations of Firstar (and of the Firstar
Fund) hereunder shall be subject to the following conditions precedent:
(a) This Agreement and the transactions contemplated by this Agreement
shall have been approved by the Board of Trustees of Select (including
the determinations required by Rule 17a-8(a) under the 0000 Xxx) and
by the shareholders of the Select Fund, in each case in the manner
required by law.
(b) The Articles of Amendment shall have been approved by the shareholders
of Firstar and filed with the office of the Department of Financial
Institutions of the State of Wisconsin.
(c) Select shall have duly executed and delivered to Firstar, on behalf of
the Select Fund, such bills of sale, assignments, certificates and
other instruments of transfer ("Transfer Documents") as Firstar may
deem necessary or desirable to transfer to the Firstar Fund all of the
right, title and interest of the Select Fund in and to substantially
all of the Assets of the Select Fund. In each case, the Assets of the
Select Fund so transferred shall be accompanied by all necessary state
stock transfer stamps or cash for the appropriate purchase price
therefor.
(d) All representations and warranties of Select made in this Agreement
shall be true and correct in all material respects on the date hereof,
at the Valuation Time and at the Effective Time of the Reorganization,
in each case, as if made at and as of such time. As of the Valuation
Time and at the Effective Time of the Reorganization, there shall have
been no material adverse change in the financial position of the
Select Fund or of Select since the date of the financial statements
referred to in Section 8(h), other than those changes (including,
without limitation, changes due to net redemptions) incurred in the
ordinary course of business as an investment company since the date of
the financial statements referred to in Section 8(h). At the Effective
Time of the Reorganization, Firstar shall have received a certificate
from the President or Vice President of Select, dated as of such date,
certifying on behalf of Select that as of such date each of the
conditions set forth in this clause (d) have been met.
(e) Firstar shall have received an opinion of Xxxxx, Xxxxxxx & Xxxxx Co.,
L.P.A., counsel to Select, addressed to Firstar, in form and substance
reasonably satisfactory to Firstar and dated the Effective Time of the
Reorganization, to the effect that as of the date of such opinion, and
subject to qualifications and conditions reasonably acceptable to
Firstar: (i) Select is a business trust duly created pursuant to its
Declaration of Trust under the laws of the State of Ohio, and is
validly existing and in good standing under the laws of the State of
Ohio; (ii) the shares of the Select Fund outstanding at the Effective
Time of the Reorganization are duly authorized, validly issued, fully
paid and non-assessable by the Select Fund, and to such counsel's
knowledge, no shareholder of the Select Fund has any statutory
preemptive right to subscription or purchase in respect thereof; (iii)
this Agreement and the Transfer Documents have been duly and validly
authorized, executed and delivered by Select and represent the legal,
valid and binding obligations of Select, enforceable against Select in
accordance with their terms, subject to the effect of bankruptcy,
insolvency, reorganization, arrangement, moratorium, fraudulent
transfer or conveyance and similar laws relating to or affecting
creditors' rights and remedies generally and court decisions with
respect thereto, and such counsel shall express no opinion with
respect to the application of equitable principles in any proceeding,
whether at law or in equity, as to the enforceability of any provision
of the Agreement relating to remedies after default, as to the
availability of any specific or equitable relief of any kind, or with
respect to the provisions of this Agreement intended to limit
liability for particular matters to the Select Fund and its Assets,
including but not limited to Sections 32 and 33 of this Agreement;
(iv) the execution and delivery of this Agreement did not, and the
consummation of the transactions contemplated by this Agreement will
not, violate the Declaration of Trust or By-Laws of Select or any
material agreement known to such counsel to which Select is a party or
by which Select may be bound; and (v) to such counsel's knowledge, no
consent, approval, authorization or order of any court, governmental
authority or agency is required for the consummation by Select of the
transactions contemplated by this Agreement, except such as have been
obtained under the 1933 Act, the 1934 Act, the 1940 Act and Ohio
securities laws (including, in the case of each of the foregoing, the
rules and regulations thereunder).
(f) The Firstar Post-Effective Amendment shall have become effective under
the 1933 Act and the 1940 Act and no stop order suspending such
effectiveness shall have been instituted, or, to the knowledge of
Firstar, contemplated by the SEC, and the parties shall have received
all permits, licenses and other authorizations necessary under
applicable state securities laws to consummate the transactions
contemplated by this Agreement and all such permits, licenses and
other authorizations shall be in full force and effect at such time.
(g) At the Effective Time of the Reorganization, Select shall have
performed and complied in all material respects with each of its
agreements and covenants required by this Agreement to be performed or
complied with by Select prior to or at the Valuation Time and the
Effective Time of the Reorganization and Firstar shall have received a
certificate from the President or Vice President of Select, dated as
of such date, certifying on behalf of Select that the conditions set
forth in this clause (g) have been, and continue to be, satisfied.
(h) Select's agreements with each of its service contractors shall have
terminated at the Effective Time of the Reorganization and each party
shall have received reasonable assurance that no claim for damages
(liquidated or otherwise) will arise as a result of such termination.
(i) Firstar shall have received the tax opinion provided for in Section 15
hereof.
(j) Firstar shall have received any necessary exemptive relief from the
SEC with respect to Section 17(a) of the 1940 Act.
26. Select Conditions. The obligations of Select (and of the Select Fund)
hereunder shall be subject to the following conditions precedent:
(a) This Agreement and the transactions contemplated by this Agreement
shall have been approved by the Board of Directors of Firstar
(including the determinations required by Rule 17a-8(a) under the 0000
Xxx) and by the shareholders of the Select Fund, in each case, in the
manner required by law.
(b) The Articles of Amendment shall have been approved by the shareholders
of Firstar and filed with the office of the Department of Financial
Institutions of the State of Wisconsin.
(c) All representations and warranties of Firstar made in this Agreement
shall be true and correct in all material respects on the date hereof,
at the Valuation Time and at the Effective Time of the Reorganization,
in each case as if made at and as of such time. As of the Valuation
Time and at the Effective Time of the Reorganization, there shall have
been no material adverse change in the financial position of Firstar
since the date of the financial statements referred to in Section 9(h)
other than those changes (including, without limitation, changes due
to net redemptions) incurred in the ordinary course of business as an
investment company since the date of the financial statements referred
to in Section 9(h). At the Effective Time of the Reorganization,
Select shall have received a certificate from the President or Vice
President of Firstar, dated as of such date, certifying on behalf of
Firstar that as of such date each of the conditions set forth in this
clause (c) have been met.
(d) Select shall have received an opinion of Drinker Xxxxxx & Xxxxx LLP,
counsel to Firstar, addressed to Select, in form and substance
reasonably satisfactory to Select and dated the Effective Time of the
Reorganization, to the effect that as of the date of such opinion, and
subject to qualifications and conditions reasonably acceptable to
Select: (i) Firstar is a corporation duly organized, validly existing
and in good standing under the laws of the State of Wisconsin; (ii)
the shares of the Firstar Fund to be delivered to the Select Fund are
duly authorized and upon delivery will be registered under the 1933
Act and the 1940 Act, validly issued, fully paid and non-assessable by
the Firstar Fund, and to such counsel's knowledge, no shareholder of
the Firstar Fund has any statutory preemptive right to subscription or
purchase in respect thereof; (iii) this Agreement has been duly and
validly authorized, executed and delivered by Firstar and represents
the legal, valid and binding obligation of Firstar, enforceable
against Firstar in accordance with the terms hereof, subject to the
effect of bankruptcy, insolvency, reorganization, arrangement,
moratorium, fraudulent transfer or conveyance and similar laws
relating to or affecting creditors' rights and remedies generally and
court decisions with respect thereto, and such counsel shall express
no opinion with respect to the application of equitable principles in
any proceeding, whether at law or in equity, as to the enforceability
of any provision of the Agreement relating to remedies after default,
as to the availability of any specific or equitable relief of any
kind, or with respect to the provisions of this Agreement intended to
limit liability for particular matters to the Firstar Fund and its
Assets, including but not limited to Sections 32 and 33 of this
Agreement; (iv) the execution and delivery of this Agreement did not,
and the consummation of the transactions contemplated by this
Agreement will not, violate the Articles of Incorporation or Bylaws of
Firstar, or any material agreement known to such counsel to which
Firstar is a party or by which Firstar may be bound, (v) the
consummation of the transactions contemplated by this Agreement will
not violate the securities registration provisions of the 1933 Act or
the 1940 Act (including, in the case of each of the foregoing, the
rules and regulations thereunder), and (vi) to such counsel's
knowledge, no consent, approval, authorization or order of any court,
governmental authority or agency is required for the consummation by
Firstar of the transactions contemplated by this Agreement, except
such as have been obtained under the 1933 Act, the 1934 Act, the 1940
Act, and Wisconsin securities laws (including, in the case of each of
the foregoing, the rules and regulations thereunder). The opinion may
rely on the opinion of Xxxxx & Lardner to the extent set forth in the
opinion.
(e) The Firstar Post-Effective Amendment shall have become effective under
the 1933 Act and the 1940 Act and no stop order suspending such
effectiveness shall have been instituted, or, to the knowledge of
Firstar, contemplated by the SEC, and the parties shall have received
all permits, licenses and other authorizations necessary under
applicable state securities laws to consummate the transactions
contemplated by this Agreement, and all such permits, licenses and
other authorizations shall be in full force and effect at such time.
(f) At the Effective Time of the Reorganization, Firstar shall have
performed and complied in all material respects with each of its
agreements and covenants required by this Agreement to be performed or
complied with by Firstar prior to or at the Valuation Time and the
Effective Time of the Reorganization and Select shall have received a
certificate from the President or Vice President of Firstar, dated as
of such date, certifying on behalf of Firstar that the conditions set
forth in this clause (f) have been, and continue to be, satisfied.
(g) Select shall have received the tax opinion provided for in Section 15
hereof.
(h) Select shall have received evidence, in form and substance
satisfactory to Select, of (1) the liability coverage for the Trustees
and officers of Select and (2) Firstar's agreement to indemnify the
Trustees of Select, in each case, pursuant to the covenants set forth
in Section 9(n) hereof.
(i) Select shall have received any necessary exemptive relief from the SEC
with respect to Section 17(a) of the 1940 Act.
27. Tax Opinion. Firstar and Select shall receive an opinion of Drinker
Xxxxxx & Xxxxx LLP addressed to both Firstar and Select, in a form reasonably
satisfactory to them and dated as of the Effective Time of the Reorganization,
substantially to the effect that on the basis of facts, representations, and
assumptions set forth in such opinion, and subject to qualifications and
exceptions reasonably acceptable to the parties:
(a) The Reorganization will constitute a "reorganization" within the
meaning of Section 368(a) of the Code, and the Select Fund and the
Firstar Fund will each be a "party to a reorganization" within the
meaning of Section 368(b) of the Code with respect to the
Reorganization;
(b) In accordance with Section 361(a), 361(c)(1) and 357(a) of the Code,
no gain or loss will be recognized by the Select Fund upon the
transfer of substantially all of its Assets and substantially all of
its Liabilities to the Firstar Fund in exchange for the Firstar Fund
Shares;
(c) In accordance with Section 1032(a) of the Code, no gain or loss will
be recognized by the Firstar Fund upon the receipt of substantially
all of the Assets and assumption of substantially all of the
Liabilities of the Select Fund in exchange for the Firstar Fund
Shares;
(d) In accordance with Section 362(b) of the Code, the basis of the Select
Fund's Assets received by the Firstar Fund pursuant to the
Reorganization will be the same as the basis of those Assets in the
hands of the Select Fund immediately prior to the Reorganization;
(e) In accordance with Section 1223(2) of the Code, the holding
period of the Select Fund's Assets in the hands of the Firstar
Fund will include the period for which such assets have been
held by the Select Fund;
(f) In accordance with Section 361(a), 361(c)(1) and 357(a) of the Code,
no gain or loss will be recognized by the Select Fund on the
distribution to its shareholders of the Firstar Fund Shares to be
received by the Select Fund in the Reorganization;
(g) In accordance with Section 354(a)(1) of the Code, no gain or loss will
be recognized by the shareholders of the Select Fund upon their
receipt of the Firstar Fund Shares in exchange for such shareholders'
shares of the Select Fund;
(h) In accordance with Section 358(a)(1) of the Code, the basis of the
Firstar Fund Shares received by the shareholders of the Select Fund
will be the same as the basis of the Select Fund shares surrendered by
such shareholders pursuant to the Reorganization;
(i) In accordance with Section 1223( 1 ) of the Code, the holding period
for the Firstar Fund Shares received by each Select Fund shareholder
will include the period during which such shareholder held the Select
Fund shares surrendered therefor, provided that the Select Fund shares
are held as a capital asset in the hands of such Select Fund
shareholder on the date of the exchange; and
(j) The Firstar Fund will succeed to and take into account the tax
attributes described in Section 381(c) of the Code of the Select Fund
as of the Effective Time of the Reorganization, subject to the
conditions and limitations specified in the Code.
In rendering the opinion described in this paragraph, Drinker Xxxxxx &
Xxxxx LLP may require and, to the extent it deems necessary and
appropriate, may rely upon representations made in certificates of the
Firstar Fund and the Select Fund, their affiliates, and principal
shareholders.
28. Tax Documents. Select shall deliver to Firstar at the Effective Time of
the Reorganization, confirmations and/or other evidence satisfactory to Firstar
as to the adjusted tax basis of the Assets of the Select Fund delivered to the
Firstar Fund in accordance with the terms of this Agreement.
29. Further Assurances. Subject to the terms and conditions herein
provided, each of the parties hereto shall use its best efforts to execute and
deliver, or cause to be executed and delivered, such additional documents and
instruments and to do, or cause to be done, all things necessary, proper or
advisable under the provisions of this Agreement and under applicable law to
consummate and make effective the transactions contemplated by this Agreement,
including, without limitation, delivering and/or causing to be delivered to the
other party hereto each of the items required under this Agreement as a
condition to such other party's obligations hereunder. In addition, Select shall
deliver or cause to be delivered to Firstar, each account, book, record and
other document of Select required to be maintained by Select pursuant to Section
31(a) of the 1940 Act and Rules 31a-1 to 31a-3 thereunder (regardless of whose
possession they are in).
30. Termination of Representations and Warranties. The representations and
warranties of the parties set forth in this Agreement shall terminate upon the
consummation of the transactions contemplated herein; provided, however, that
nothing contained in this Section 18 shall be construed (a) to terminate the
obligations of the Firstar Fund to discharge the Liabilities of the Select Fund
assumed pursuant to Section 2(b) hereof, or (b) to terminate the obligations of
Firstar to provide liability coverage for the Trustees and officers of Select
and to indemnify the Trustees of Select, in each case, pursuant to the covenants
set forth in Section 9(n) hereof.
31. Termination of Agreement. This Agreement may be terminated by a party
at any time at or prior to the Effective Time of the Reorganization by a vote of
a majority of such party's Board of Directors or Trustees, as applicable, as
provided below:
(a) By Firstar if the conditions set forth in Section 13 are not satisfied
as specified in said Section;
(b) By Select if the conditions set forth in Section 14 are not satisfied
as specified in said Section; or
(c) By mutual consent of both parties.
If a party terminates this Agreement because one or more of its conditions have
not been fulfilled, or if this Agreement is terminated by mutual consent, this
Agreement will become null and void insofar as it is so terminated without any
liability of any party to the other parties except as otherwise provided herein.
32. Amendment and Waiver. At any time prior to or (to the fullest extent
permitted by applicable law) after approval of this Agreement by the
shareholders of Select pursuant to Section 10 hereof, (a) the parties hereto
may, by written agreement authorized by their respective Boards of Directors or
Trustees, as the case may be, and with or without the approval of their
shareholders, amend, modify or terminate any of the provisions of this
Agreement, and (b) any party may waive any breach by any other party or any
failure by any other party to satisfy any of the conditions to the obligations
of the waiving party (such waiver to be in writing and authorized by an
authorized officer of the waiving party) with or without the approval of such
party's shareholders.
33. Governing Law.. This Agreement and the transactions contemplated hereby
shall be governed, construed and enforced in accordance with the internal laws
of the State of Wisconsin, without giving effect to the conflicts of law
principles of such state.
34. Successors and Assigns. This Agreement shall be binding upon the
respective successors and permitted assigns of the parties hereto. This
Agreement and the rights, obligations and liabilities hereunder may not be
assigned by any party without the prior written consent of the other party.
35. Beneficiaries. Nothing contained in this Agreement shall be deemed to
create rights in persons not parties hereto (including, without limitation, any
shareholder of Firstar or Select), other than (a) the Trustees and officers of
Select with respect to the covenants set forth in Section 9(n) hereof, and (b)
the successors and permitted assigns of the parties.
36. Notices. All notices required or permitted herein shall be in writing
and shall be deemed to be properly given when delivered personally or by
telecopier to the party entitled to receive the notice or when sent by certified
or registered mail, postage prepaid, or delivered to a nationally recognized
overnight courier service, in each case, properly addressed to the party
entitled to receive such notice at the address or telecopier number stated below
or to such other address or telecopier number as may hereafter be furnished in
writing by notice similarly given by one party to the other party hereto:
If to Firstar:
Firstar Funds, Inc.
000 Xxxx Xxxxxxxx Xxxxxx
PO. Xxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000-0000
With copies to:
W. Xxxxx XxXxxxxx, Esq.
Drinker Xxxxxx & Xxxxx LLP
One Xxxxx Square
00xx & Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Telecopier Number: (000) 000-0000
If to Select:
Firstar Select Funds
000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
With copies to:
Xxxxxx X. Xxxxxxxxxx, Esq.
Xxxxx, Cummins & Xxxxx Co., L.P. A.
0000 Xxxxx Xxxxx
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
37. Expenses. With regard to the expenses incurred by Select and Firstar in
connection with this Agreement and the transactions contemplated hereby, FIRMCO
shall bear such expenses or cause one of its affiliates to bear such expenses.
38. Entire Agreement. This Agreement embodies the entire agreement and
understanding of the parties hereto and supersedes any and all prior agreements,
arrangements and understandings relating to matters provided for herein.
39. Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed and delivered shall be deemed to be
an original, but all of which together shall constitute one and the same
instrument.
40. No Brokers or Finders. Select, on behalf of both itself and the Select
Fund, and Firstar, on behalf of both itself and the Firstar Fund, each hereby
represents and warrants to the other party hereto that that there are no brokers
or finders entitled to receive any payments in connection with the transactions
provided for herein.
41. Validity. Whenever possible, each provision and term of this Agreement
shall be interpreted in a manner to be effective and valid, but if any provision
or term of this Agreement is held to be prohibited by law or invalid, then such
provision or term shall be ineffective only in the jurisdiction or jurisdictions
so holding and only to the extent of such prohibition or invalidity, without
invalidating or affecting in any manner whatsoever the remainder of such
provision or term or the remaining provisions or terms of this Agreement.
42. Effect of Facsimile Signature. A facsimile signature of an authorized
officer of a party hereto on this Agreement and/or any Transfer Document shall
have the same effect as if executed in the original by such officer.
43. Headings. The headings contained herein are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement.
44. Firstar Liability. Both parties specifically acknowledge and agree that
any liability of Firstar under this Agreement with respect to the Firstar Fund,
or in connection with the transactions contemplated herein with respect to the
Firstar Fund, shall be discharged only out of the assets of the Firstar Fund and
that no other portfolio of Firstar shall be liable with respect thereto.
45. Select Liability. The names "Firstar Select Funds" and "Trustees of
Firstar Select Funds" refer respectively to the trust created and the trustees,
as trustees but not individually or personally, acting from time to time under a
Declaration of Trust dated February 28, 1997, as amended and restated on May 20,
1997, which is hereby referred to and a copy of which is on file at the office
of the Secretary of State of the State of Ohio and at the principal office of
Select. The obligations of Select entered into in the name or on behalf thereof
by any of the trustees, representatives or agents are made not individually, but
in such capacities, and are not binding upon any of the trustees, shareholders
or representatives of Select personally, but bind only the trust property, and
all persons dealing with any series of shares of Select must look solely to the
trust property belonging to such series for the enforcement of any claims
against Select.
Both parties specifically acknowledge and agree that any liability of
Select under this Agreement with respect to the Select Fund, or in connection
with the transactions contemplated herein with respect to the Select Fund, shall
be discharged only out of the assets of the Select Fund.
[Signatures Omitted]
