-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LHpJej5HZ2LtOh7KM4Q6hZIdCXPuk2FNESgRVRhYDmyqm03Pb1p8UIQB/X3P6mvr jjcoF20pQsKPsF2931iGug== 0001193125-08-037454.txt : 20080225 0001193125-08-037454.hdr.sgml : 20080225 20080225161334 ACCESSION NUMBER: 0001193125-08-037454 CONFORMED SUBMISSION TYPE: POS EX PUBLIC DOCUMENT COUNT: 13 FILED AS OF DATE: 20080225 DATE AS OF CHANGE: 20080225 EFFECTIVENESS DATE: 20080225 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Gateway Trust CENTRAL INDEX KEY: 0001406305 IRS NUMBER: 000000000 FILING VALUES: FORM TYPE: POS EX SEC ACT: 1933 Act SEC FILE NUMBER: 333-146884 FILM NUMBER: 08639627 BUSINESS ADDRESS: STREET 1: IXIS ASSET MANAGEMENT DISTRIBUTORS, L.P. STREET 2: 399 BOYLSTON STREET CITY: BOSTON STATE: MA ZIP: 02116 BUSINESS PHONE: 617-449-2810 MAIL ADDRESS: STREET 1: IXIS ASSET MANAGEMENT DISTRIBUTORS, L.P. STREET 2: 399 BOYLSTON STREET CITY: BOSTON STATE: MA ZIP: 02116 POS EX 1 dposex.txt GATEWAY TRUST As filed with the Securities and Exchange Commission on February 25, 2008 Securities Act File No. 333-146884 ================================================================================ U.S. SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM N-14 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 [_] Pre-Effective Amendment No. __ [X] Post-Effective Amendment No. __1__ GATEWAY TRUST (Exact Name of Registrant as Specified in Charter) 399 Boylston Street, Boston, Massachusetts 02116 (Address of Principal Executive Offices) (617) 449-2810 (Registrant's Telephone Number, Including Area Code) Coleen Downs Dinneen, Esq. Natixis Distributors, L.P. 399 Boylston Street, Boston, Massachusetts 02116 (Name and Address of Agent for Service) Copy to: John M. Loder, Esq. Ropes & Gray, LLP One International Place Boston, Massachusetts 02110 ----------------- It is proposed that this filing will become effective immediately upon filing pursuant to paragraph (d) of Rule 462 under the Securities Act of 1933, as amended solely for the purpose of adding the enclosed exhibits to such Registration Statement. Pursuant to the provisions of Rule 24f-2 under the Investment Company Act of 1940, Registrant declares that an indefinite number of its shares are being registered under the Securities Act of 1933 by this registration statement. There have been no changes to the proxy statement/prospectus or statement of additional information as filed with the Registrant's Registration Statement on Form N-14 (File No. 333-146884), as filed with the Commission on October 23, 2007 (Accession No. 0001193125-07-223958) and as supplemented November 30, 2007 (Accession No. 0001193125-07-256932). ================================================================================ Registration Nos. 333-146884 GATEWAY TRUST PART C OTHER INFORMATION Item 15. Indemnification Under Article 5 of the Registrant's By-Laws, any past or present Trustee or officer of the Registrant and The Gateway Trust, an Ohio business trust, prior to the reorganization of such trust into the Registrant (each hereinafter referred to as a "Covered Person"), shall be indemnified to the fullest extent permitted by law against all liability and all expenses reasonably incurred by him or her in connection with any claim, action, suit or proceeding to which he or she may be a party or otherwise involved by reason of his or her being or having been a Covered Person. That provision does not authorize indemnification when it is determined that such Covered Person would otherwise be liable to the Registrant or its shareholders by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of his or her duties. The Distribution Agreement, the Custodian Contract, the Transfer Agency and Service Agreement and the Administrative Services Agreement (the "Agreements") contained or incorporated by reference herein, will provide for indemnification. The general effect of these provisions is to indemnify entities contracting with the Registrant against liability and expenses in certain circumstances. This description is modified in its entirety by the provisions of the Agreements as contained or incorporated by reference in this Registration Statement. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the "Securities Act"), may be permitted to Trustees, officers and controlling persons of the Registrant pursuant to the foregoing provisions or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a Trustee, officer or controlling person of the Registrant in connection with the successful defense of any claim, action, suit or proceeding) is asserted against the Registrant by such Trustee, officer or controlling person in connection with the shares being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. Registrant and its Trustees, officers and employees are insured, under a policy of insurance maintained by the Registrant in conjunction with Natixis Global Asset Management L.P. and its affiliates, within the limits and subject to the limitations of the policy, against certain expenses in connection with the defense of actions, suits or proceedings, and certain liabilities that might be imposed as a result of such actions, suits or proceedings, to which they are parties by reason of being or having been such Trustees or officers. The policy expressly excludes coverage for any Trustee or officer for any claim arising out of any fraudulent act or omission, any dishonest act or omission or any criminal act or omission of the Trustee or officer. Item 16. Exhibits (1) Articles of Incorporation. The Registrant's Agreement and Declaration of Trust dated May 29, 2007 (the "Agreement and Declaration") is incorporated by reference to exhibit (1) to the Registration Statement on Form N-14AE filed on October 23, 2007. (2) Bylaws. The Registrant's Amended and Restated By-Laws dated September 14, 2007 (the "By-Laws") are filed herewith. (3) Voting Trust Agreements. None. (4) Agreement and Plan of Reorganization is filed herewith. (5) Instruments Defining Rights of Security Holders. (a) Rights of shareholders are described in Article III, Section 6 of the Agreement and Declaration, which is incorporated by reference to exhibit (5)(a) to the Registration Statement on Form N-14AE filed on October 23, 2007. (6) Investment Advisory Contracts. (a) Advisory Agreement between the Registrant, on behalf of Gateway Fund, and Gateway Investment Advisers, LLC is filed herewith. (7) Distribution Agreements and Dealer Agreement. (a) Distribution Agreement between the Registrant, on behalf of Gateway Fund, and Natixis Distributors, L.P. is filed herewith. (b) Form of Dealer Agreement is incorporated by reference to exhibit (e)(2) to the Registration Statement on Form N-1A/A filed on November 6, 2007. (8) Bonus or Profit Sharing Contracts. None. (9) Custodian Agreements. (a) Master Custodian Agreement dated September 1, 2005 is incorporated by reference to exhibit (g)(1) to the Registration Statement on Form N-1A/A filed on November 6, 2007. (b) Amendment No. 1 dated September 15, 2006 to Master Custody Agreement dated September 1, 2005 is incorporated by reference to exhibit (g)(2) to the Registration Statement on Form N-1A/A filed on November 6, 2007. (c) Letter Agreement amending the Master Custodian Agreement between the Registrant, on behalf of Gateway Fund, and State Street Bank and Trust Company is filed herewith. (10) Rule 12b-1 Plans and Rule 18f-3 Plans. (a) Rule 12b-1 Plan for Class A shares is incorporated by reference to exhibit (10)(a) to the Registration Statement on Form N-14AE filed on October 23, 2007. (b) Rule 12b-1 Plan for Class C shares is incorporated by reference to exhibit (10)(b) to the Registration Statement on Form N-14AE filed on October 23, 2007. (c) Rule 18f-3 Plan is incorporated by reference to exhibit (10)(c)to the Registration Statement on Form N-14AE filed on October 23, 2007. (11) Opinion and Consent of Ropes & Gray LLP as to the legality of the securities being registered is incorporated by reference to exhibit (11) to the Registration Statement on Form N-14AE filed on October 23, 2007. -2- (12) Opinion and Consent of Ropes & Gray LLP relating to Tax Matters and Consequences to Shareholders is filed herewith. (13) Other Material Contracts. (a) Transfer Agency and Services Agreement with Boston Financial Data Services, Inc. is incorporated by reference to exhibit (h)(1) to the Registration Statement on Form N-1A/A filed on November 6, 2007. (b) Form of Appendix A to Transfer Agency and Services Agreement is incorporated by reference to exhibit (h)(2) to the Registration Statement on Form N-1A/A filed on November 6, 2007. (c) Gateway Investment Advisers, LLC Fee Waiver/Expense Reimbursement Agreement is filed herewith. (d) Administrative Services Agreement dated January 3, 2005 is incorporated by reference to exhibit (h)(4) to the Registration Statement on Form N-1A/A filed on November 6, 2007. (e) First Amendment to the Administrative Services Agreement is incorporated by reference to exhibit (h)(5) to the Registration Statement on Form N-1A/A filed on November 6, 2007. (f) Second Amendment to the Administrative Services Agreement is incorporated by reference to exhibit (h)(6) to the Registration Statement on Form N-1A/A filed on November 6, 2007. (g) Third Amendment to the Administrative Services Agreement is incorporated by reference to exhibit (h)(7) to the Registration Statement on Form N-1A/A filed on November 6, 2007. (h) Fourth Amendment to the Administrative Services Agreement is incorporated by reference to exhibit (h)(8) to the Registration Statement on Form N-1A/A filed on November 6, 2007. (i) Fifth Amendment to Administrative Services Agreement between Natixis Asset Management Advisors, L.P., Natixis Funds Trust I, Natixis Funds Trust II, Natixis Funds Trust III, Natixis Funds Trust IV, Natixis Cash Management Trust, Loomis Sayles Funds I, Loomis Sayles Funds II and Hansberger International Series is filed herewith. (j) Sixth Amendment to Administrative Services Agreement between the Registrant, on behalf of Gateway Trust, and Natixis Asset Management Advisors, L.P. is filed herewith. (k) Natixis Asset Management Advisors, L.P. Administrative Services Fee Waiver dated October 1, 2007 is filed herewith. (l) Natixis Asset Management Advisors, L.P. Administrative Services Fee Waiver dated February 18, 2008 is filed herewith. (m) Delegation Agreement between Gateway Investment Advisers, LLC and Natixis Asset Management Advisors, L.P. is filed herewith. -3- (14) Other Opinions, Appraisals or Rulings. Consent of Ernst & Young LLP is incorporated by reference to exhibit (14) to the Registration Statement on Form N-14AE filed on October 23, 2007. (15) Omitted Financial Statements. None. (16) Powers of Attorney. Powers of Attorney for Graham T. Allison, Jr., Charles D. Baker, Edward A. Benjamin, Robert J. Blanding, Daniel M. Cain, John T. Hailer, Jonathan P. Mason, Sandra O. Moose and Cynthia L. Walker dated June 1, 2007 designating Coleen Downs Dinneen, Russell Kane, Michael Kardok and John M. Loder as attorneys to sign for each Trustee are incorporated by reference to exhibit (16) to the Registration Statement on Form N-14AE filed on October 23, 2007. (17) Additional Exhibits. (a) Gateway Fund Prospectus dated May 1, 2007, as supplemented on June 29, 2007, is incorporated by reference to exhibit (17)(a) to the Registration Statement on Form N-14AE filed on October 23, 2007. (b) Statement of Additional Information of the Gateway Fund dated May 1, 2007 is incorporated by reference to exhibit (17)(b) to the Registration Statement on Form N-14AE filed on October 23, 2007. (c) Annual Report to shareholders of the Gateway Fund for the fiscal year ended December 31, 2006 is incorporated by reference to exhibit (17)(c) to the Registration Statement on Form N-14AE filed on October 23, 2007. (d) Semi-Annual Report to Shareholders of the Gateway Fund for the period ended June 30, 2007 is incorporated by reference to exhibit (17)(d) to the Registration Statement on Form N-14AE filed on October 23, 2007. (e) Code of Ethics for Gateway Trust is incorporated by reference to exhibit (p)(1) to the Registration Statement on Form N-1A filed on July 20, 2007. (f) Code of Ethics for Gateway Investment Advisers, LLC is incorporated by reference to exhibit (p)(2) to the Registration Statement on Form N1-A/A filed on November 6, 2007. (g) Code of Ethics for Natixis Distributors, L.P. is incorporated by reference to exhibit (p)(2) to the Registration Statement on Form N1-A/A filed on November 6, 2007. Item 17 Undertakings. (1) Registrant hereby agrees that prior to any public reoffering of the securities registered through the use of a prospectus which is part of this registration statement by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c) of the Securities Act, the reoffering prospectus will contain the information called for by the applicable registration form for reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the applicable form. -4- (2) Registrant hereby agrees that every prospectus that is filed under paragraph (1) above will be filed as part of an amendment to the registration statement and will not be used until the amendment is effective, and that, in determining any liability under the Securities Act, each post-effective amendment shall be deemed to be a new registration statement for the securities offered therein, and the offering of the securities at that time shall be deemed to be the initial bona fide offering of them. -5- GATEWAY TRUST SIGNATURES As required by the Securities Act of 1933, this registration statement has been signed on behalf of the registrant, in the City of Boston, and the Commonwealth of Massachusetts on the 25th day of February, 2008. GATEWAY TRUST By: /s/ John T. Hailer ------------------------------ John T. Hailer Chief Executive Officer As required by the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated. Signature Title Date - --------- ----- ---- /s/ Michael Kardok Treasurer February 25, 2008 - ------------------------------- Michael Kardok /s/ Graham T. Allison, Jr.* Trustee February 25, 2008 - ------------------------------- Graham T. Allison, Jr. /s/ Charles D. Baker* Trustee February 25, 2008 - ------------------------------- Charles D. Baker /s/ Edward A. Benjamin* Trustee February 25, 2008 - ------------------------------- Edward A. Benjamin /s/ Robert J. Blanding* Trustee February 25, 2008 - ------------------------------- Robert J. Blanding /s/ Daniel M. Cain* Trustee February 25, 2008 - ------------------------------- Daniel M. Cain /s/ John T. Hailer Trustee, President, February 25, 2008 - ------------------------------- Chief Executive John T. Hailer Officer /s/ Jonathan P. Mason* Trustee February 25, 2008 - ------------------------------- Jonathan P. Mason /s/ Sandra O. Moose* Trustee, Chairperson February 25, 2008 - ------------------------------- of the Board Sandra O. Moose /s/ Cynthia L. Walker* Trustee February 25, 2008 - ------------------------------- Cynthia L. Walker *By: /s/ Coleen Downs Dinneen ------------------------------ Coleen Downs Dinneen Attorney-In-Fact ** February 25, 2008 ** Powers of Attorney are incorporated by reference to exhibit (16) to the Registration Statement on Form N-14AE filed on October 23, 2007. -6- GATEWAY TRUST EXHIBIT INDEX Exhibits for Item 16 Exhibit Description - ------- ----------- (2) Amended and Restated By-Laws (4) Agreement and Plan of Reorganization (6)(a) Advisory Agreement (7)(a) Distribution Agreement (9)(c) Letter Agreement amending the Master Custodian Agreement (12) Opinion of Ropes & Gray LLP with respect to tax matters (13)(c) Gateway Investment Advisers, LLC Fee Waiver/Expense Reimbursement Agreement (13)(i) Fifth Amendment to Administrative Services Agreement (13)(j) Sixth Amendment to Administrative Services Agreement (13)(k) Natixis Asset Management Advisors, L.P. Administrative Services Fee Waiver dated October 1, 2007 (13)(l) Natixis Asset Management Advisors, L.P. Administrative Services Fee Waiver dated February 18, 2008 (13)(m) Delegation Agreement -7- EX-99.(2) 2 dex992.txt AMENDED AND RESTATED BY-LAWS DATED SEPTEMBER 14, 2007 Exhibit (2) AMENDED AND RESTATED BY-LAWS OF GATEWAY TRUST Adopted on June 1, 2007, as Amended and Restated on September 14, 2007 ARTICLE 1 Agreement and Declaration of Trust and Principal Office 1.1 Agreement and Declaration of Trust. These By-Laws shall be subject to the Agreement and Declaration of Trust, as from time to time in effect (the "Declaration of Trust"), of Gateway Trust (the "Trust"), the Massachusetts business trust established by the Declaration of Trust. 1.2 Principal Office of the Trust. The principal office of the Trust shall be located in Boston, Massachusetts. ARTICLE 2 Meetings of Trustees 2.1 Regular Meetings. Regular meetings of the Trustees may be held without call or notice at such places and at such times as the Trustees may from time to time determine, provided that notice of the first regular meeting following any such determination shall be given to absent Trustees. 2.2 Special Meetings. Special meetings of the Trustees may be held, at any time and at any place designated in the call of the meeting, when called by the Chairman of the Board, if any, the President, the Treasurer, any Vice President, the Secretary or an Assistant Secretary or by two or more Trustees, with sufficient notice thereof being given to each Trustee by the Secretary or an Assistant Secretary or by the officer or the Trustees calling the meeting. 2.3 Notice. It shall be sufficient notice to a Trustee of a special meeting to send notice of the time, date and place of such meeting by (a) mail or courier at least forty-eight hours in advance of the meeting; (b) by telegram, telefax, e-mail or by other electro-mechanical means addressed to the Trustee at his or her usual or last known business or residence address (or fax number or e-mail address as the case may be) at least twenty-four hours before the meeting; or (c) to give notice to him or her in person or by telephone at least twenty-four hours before the meeting. Notice of a meeting need not be given to any Trustee if a written waiver of notice, executed by him or her before or after the meeting, is filed with the records of the meeting, or to any Trustee who attends the meeting without protesting prior thereto or at its commencement the lack of notice to him or her. Except as required by law, neither notice of a meeting nor a waiver of a notice need specify the purposes of the meeting. 2.4 Quorum. At any meeting of the Trustees a majority of the Trustees then in office shall constitute a quorum. Any meeting may be adjourned from time to time by a majority of the votes cast upon the question, whether or not a quorum is present, and the meeting may be held as adjourned without further notice to any Trustee who was present at the time of such adjournment; notice of the time and place of any adjourned session of any such meeting shall, however, be given in a manner provided in Section 2.3 of these By-Laws to each Trustee who was not present at the time of such adjournment. 2.5 Action by Vote. When a quorum is present at any meeting, a majority of Trustees present may take any action, except when a larger vote is expressly required by law, by the Declaration of Trust or by these By-Laws. Subject to applicable law, the Trustees by majority vote may delegate to any one of their number their authority to approve particular matters or take particular actions on behalf of the Trust. 2.6 Action by Writing. Except as required by law, any action required or permitted to be taken at any meeting of the Trustees may be taken without a meeting if a majority of the Trustees (or such larger proportion thereof as shall be required by any express provision of the Declaration of Trust or these By-Laws) consent to the action in writing and such written consents are filed with the records of the meetings of the Trustees. Such consent shall be treated for all purposes as a vote taken at a meeting of Trustees. Written consents of the Trustees may be executed in one or more counterparts. Execution of a written consent or waiver and delivery thereof to the Trust may be accomplished by telefax, e-mail or other electro-mechanical means. 2.7 Presence through Communications Equipment. Except as required by applicable law, the Trustees may participate in a meeting of Trustees by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time, and participation by such means shall constitute presence in person at a meeting. ARTICLE 3 Officers 3.1 Enumeration; Qualification. The officers of the Trust shall be a President, a Treasurer, a Secretary, an Assistant Treasurer, an Assistant Secretary and such other officers, if any, as the Trustees from time to time may in their discretion elect. The Trust may also have such agents as the Trustees from time to time may in their discretion appoint. If one or more Chairmen of the Board are elected, each such person shall be a Trustee and may, but need not be, a Shareholder, and shall be considered an officer of the Board of Trustees and not of the Trust. Any other officer may be, but none need be, a Trustee or Shareholder. Any two or more offices may be held by the same person. 3.2 Election and Tenure. The President, the Treasurer and the Secretary, and such other officers as the Trustees may in their discretion from time to time elect shall each be elected by the Trustees to serve until his or her successor is elected or qualified, or until he or she sooner dies, resigns, is removed or becomes disqualified. Each officer shall hold office and each agent shall retain authority at the pleasure of the Trustees. -2- 3.3 Powers. Subject to the other provisions of these By-Laws, each officer shall have, in addition to the duties and powers herein and set forth in the Declaration of Trust, such duties and powers as are commonly incident to the office occupied by him or her as if the Trust were organized as a Massachusetts business corporation and such other duties and powers as the Trustees may from time to time designate. 3.4 President and Vice Presidents. The President shall have the duties and powers specified in these By-Laws and shall have such other duties and powers as may be determined by the Trustees. Any Vice Presidents shall have such duties and powers as shall be designated from time to time by the Trustees. 3.5 Chief Executive Officer. The Chief Executive Officer of the Trust shall be the President or such other officer as is designated as such by the Trustees and shall, subject to the control of the Trustees, have general charge and supervision of the business of the Trust. 3.6 Chairman of the Board. If a Chairman of the Board of Trustees is elected, he or she shall have the duties and powers specified in these By-Laws and shall have such other duties and powers as may be determined by the Trustees. Except as the Trustees or the By-Laws shall otherwise determine or provide, the Chairman will preside at all meetings of the Shareholders and of the Trustees. Except to the extent the Trustees otherwise determine, if the Chairman is absent for a meeting of the Board of Trustees or if there is no Chairman, either the Chairman of the Contract Review and Governance Committee or the Chairman of the Audit Committee shall preside, as determined by the Board of Trustees. Except as the Trustees otherwise determine, if the Chairman is absent for a meeting of the Shareholders, the President of the Trust or such other officer of the Trust as is designated by the President shall preside. If the Trustees determine to have two or more Co-Chairmen of the Board, the duties of Chairman (including presiding at meetings of the Trustees) shall be shared among the Co-Chairmen in such manner as the Trustees may from time to time determine. 3.7 Treasurer; Assistant Treasurer. The Treasurer shall be the chief financial and accounting officer of the Trust, and shall, subject to the provisions of the Declaration of Trust and to any arrangement made by the Trustees with a custodian, investment adviser or manager, administrator or transfer, shareholder servicing or similar agent, be in charge of the valuable papers, books of account and accounting records of the Trust, and shall have such other duties and powers as may be designated from time to time by the Trustees or by the President. Any Assistant Treasurer shall have the duties and powers specified in these By-Laws and may perform such duties of the Treasurer as the Treasurer or the Trustees may assign, and, in the absence of the Treasurer, an Assistant Treasurer may perform all of the duties of the Treasurer. 3.8 Secretary; Assistant Secretary. The Secretary or an Assistant Secretary shall record all proceedings of the Shareholders and the Trustees in books to be kept therefor, which books or a copy thereof shall be kept at the principal office of the Trust. In the absence of the Secretary from any meeting of the Shareholders or Trustees, an Assistant Secretary, or if there be none or if he or she is absent, a temporary secretary chosen at such meeting shall record the proceedings thereof in the aforesaid books. -3- Any Assistant Secretary shall have the duties and powers specified in these By-Laws and may perform such duties of the Secretary as the Secretary or the Board of Trustees may assign, and, in the absence of the Secretary, an Assistant Secretary may perform all of the duties of the Secretary. 3.9 Chief Legal Officer. The Chief Legal Officer shall, pursuant to Section 307 of the Sarbanes-Oxley Act of 2002, review all reports of potential material violations of securities laws, breach of fiduciary duty or similar violations "up the ladder" to the Funds, evaluate the merits of the reports, and direct investigative next steps as applicable and shall perform such other duties as the Board may from time to time determine. 3.10 Chief Compliance Officer. The Chief Compliance Officer shall, pursuant to Rule 38a-1 under the Investment Company Act of 1940, administer the funds' compliance policies and procedures and shall perform such other duties as the Board may from time to time determine. 3.11 Anti-Money Laundering Officer. The Anti-Money Laundering Officer will administer the Trust's anti-money laundering compliance activities and shall perform such other duties as the Board may from time to time determine. 3.12 Resignations; Removals. Any officer may resign at any time by written instrument signed by him or her and delivered to the Chairman, if any, the President or the Secretary, or to a meeting of the Trustees. Such resignation shall be effective upon receipt unless specified to be effective at some other time. The Trustees may remove any officer with or without cause. Except to the extent expressly provided in a written agreement with the Trust, no officer resigning and no officer removed shall have any right to any compensation for any period following his or her resignation or removal, or any right to damages on account of such removal. ARTICLE 4 Committees 4.1 Quorum; Voting. Except as provided below or as otherwise specifically provided in the resolutions constituting a Committee of the Trustees and providing for the conduct of its meetings or in the charter of such committee adopted by the Trustees, a majority of the members of any Committee of the Trustees shall constitute a quorum for the transaction of business, and any action of such a Committee may be taken at a meeting by a vote of a majority of the members present (a quorum being present) or evidenced by one or more writings signed by such a majority. Members of a Committee may participate in a meeting of such Committee by means of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other at the same time and participation by such means shall constitute presence in person at a meeting. -4- Except as specifically provided in the resolutions constituting a Committee of the Trustees and providing for the conduct of its meetings or in the charter of such committee adopted by the Trustees, Article 2, Section 2.3 of these By-Laws relating to special meetings of the Trustees shall govern the notice requirements for Committee meetings, provided, however, that such notice need be given only to the Trustees who are members of such Committee. ARTICLE 5 Indemnification 5.1 Trustees, Officers, etc. The Trust shall indemnify each of its Trustees and officers (including persons who serve at the Trust's request as directors, officers or Trustees of another organization in which the Trust has any interest as a shareholder, creditor or otherwise) and any person who served as a trustee or officer (including former trustees and officers) of The Gateway Trust, an Ohio business trust (the "Predecessor Trust"), prior to the reorganization of the Predecessor Trust into the Trust (each hereinafter referred to as a "Covered Person") against all liabilities and expenses, including but not limited to amounts paid in satisfaction of judgments, in compromise or as fines and penalties, and counsel fees reasonably incurred by any Covered Person in connection with the defense or disposition of any action, suit or other proceeding, whether civil or criminal, before any court or administrative or legislative body, in which such Covered Person may be or may have been involved as a party or otherwise or with which such Covered Person may be or may have been threatened, while in office or thereafter, by reason of any alleged act or omission as a trustee or officer of the Trust or the Predecessor Trust or by reason of his or her being or having been such a Covered Person except with respect to any matter as to which such Covered Person shall have been finally adjudicated in any such action, suit or other proceeding not to have acted in good faith in the reasonable belief that such Covered Person's action was in the best interests of the Trust or the Predecessor Trust, as the case may be, and except that no Covered Person shall be indemnified against any liability to the Trust or its Shareholders or the Predecessor Trust or its shareholders by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of such Covered Person's office. Expenses, including counsel fees so incurred by any such Covered Person (but excluding amounts paid in satisfaction of judgments, in compromise or as fines or penalties), shall be paid from time to time by the Trust to a Trustee who is not an "interested person" of the Trust or to any trustee or former trustee of the Predecessor Trust who was not an "interested person" of the Predecessor Trust, and may be paid from time to time by the Trust to a Trustee who is an "interested person" of the Trust, to a trustee or former trustee who was an "interested person" of the Predecessor Trust or to an officer in advance of the final disposition of any such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Covered Person to repay amounts so paid to the Trust if it is ultimately determined that indemnification of such expenses is not authorized under this Article, provided, however, that either (a) such Covered Person shall have provided appropriate security for such undertaking, (b) the Trust shall be insured against losses arising from any such advance payments or (c) either a majority of the disinterested Trustees acting on the matter (provided that a majority of the disinterested Trustees then in office act on the matter), or independent legal counsel in a written opinion, shall have determined, based upon a review of readily available facts (as opposed to a full trial type inquiry) that there is reason to believe that such Covered Person will be found entitled to indemnification under this Article. For purposes of the determination or opinion -5- referred to in clause (c), the majority of disinterested Trustees acting on the matter or independent legal counsel, as the case may be, shall afford the Covered Person a rebuttable presumption that the Covered Person has not engaged in willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of such Covered Person's office. 5.2 Compromise Payment. As to any matter disposed of (whether by a compromise payment, pursuant to a consent decree or otherwise) without an adjudication by a court, or by any other body before which the proceeding was brought, that such Covered Person has not acted in good faith in the reasonable belief that such Covered Person's action was in the best interests of the Trust or the Predecessor Trust or that such Covered Person is liable to the Trust or its Shareholders or the Predecessor Trust or its shareholders by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his or her office, indemnification shall be provided if (a) approved, after notice that it involves such indemnification, by at least a majority of the disinterested Trustees acting on the matter (provided that a majority of the disinterested Trustees then in office act on the matter) upon a determination, based upon a review of readily available facts (as opposed to a full trial type inquiry) that such Covered Person has acted in good faith in the reasonable belief that such Covered Person's action was in the best interests of the Trust or the Predecessor Trust, as the case may be, and is not liable to the Trust or its Shareholders or the Predecessor Trust or its shareholders by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his or her office, or (b) there has been obtained an opinion in writing of independent legal counsel, based upon a review of readily available facts (as opposed to a full trial type inquiry) to the effect that such Covered Person appears to have acted in good faith in the reasonable belief that such Covered Person's action was in the best interests of the Trust or the Predecessor Trust and that such indemnification would not protect such Covered Person against any liability to the Trust to which such Covered Person would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his or her office. Any approval pursuant to this Section shall not prevent the recovery from any Covered Person of any amount paid to such Covered Person in accordance with this Section as indemnification if such Covered Person is subsequently adjudicated by a court of competent jurisdiction to have been liable to the Trust or its Shareholders or the Predecessor Trust or its shareholders by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of such Covered Person's office. 5.3 Indemnification Not Exclusive. The right of indemnification hereby provided shall not be exclusive of or affect any other rights to which any such Covered Person may be entitled. As used in this Article 5, the term "Covered Person" shall include such person's heirs, executors and administrators; and a "disinterested Trustee" is a Trustee who is not an "interested person" of the Trust as defined in Section 2(a)(19) of the Investment Company Act of 1940 (or exempted from being an "interested person" by any rule, regulation or order of the Securities and Exchange Commission) and against whom none of the actions, suits or other proceedings in question or another action, suit or other proceeding on the same or similar grounds is then or has been pending. Nothing contained in this Article shall affect any rights to indemnification to which personnel of the Trust, other than Trustees and officers, and other persons may be entitled by contract or otherwise under law, nor the power of the Trust to purchase and maintain liability insurance on behalf of any such person. -6- 5.4 Limitation on Indemnification. Any right of indemnification or advancement provided by this Article 5 to trustees or officers of the Predecessor Trust shall be satisfied solely out of the assets of the Gateway Fund series of the Trust (or any successor series) and no other series of the Trust. ARTICLE 6 Reports 6.1 General. The Trustees and officers shall render reports at the time and in the manner required by the Declaration of Trust or any applicable law. Officers shall render such additional reports as they may deem desirable or as may from time to time be required by the Trustees. ARTICLE 7 Fiscal Year 7.1 General. The initial fiscal year of the Trust and/or any Series thereof shall end on such date as is determined in advance or in arrears by the Treasurer or the Trustees and subsequent fiscal years shall end on such date in subsequent years. The Trustees shall have the power and authority to amend the year-end date for the fiscal year of the Trust and/or any Series thereof. The Trust and any such Series thereof may have different fiscal year-end dates if deemed necessary or appropriate by the Trustees. ARTICLE 8 Seal 8.1 General. The seal of the Trust shall consist of a flat-faced die with the word "Massachusetts," together with the name of the Trust and the year of its organization cut or engraved thereon, but, unless otherwise required by the Trustees, the seal shall not be necessary to be placed on, and its absence shall not impair the validity of, any document, instrument or other paper executed and delivered by or on behalf of the Trust. ARTICLE 9 Execution of Papers 9.1 General. Except as the Trustees may generally or in particular cases authorize the execution thereof in some other manner, all checks, notes, drafts and other obligations and all registration statements and amendments thereto and all applications and amendments thereto to the Securities and Exchange Commission shall be signed by the Chairman, if any, the President, any Vice President, the Treasurer, any Assistant Treasurer, the Secretary, any Assistant Secretary or any of such other officers or agents as shall be designated for that purpose by a vote of the Trustees. -7- ARTICLE 10 Issuance of Share Certificates 10.1 Share Certificates. In lieu of issuing certificates for shares, the Trustees or the transfer agent may either issue receipts therefor or may keep accounts on the books of the Trust for the record holders of such shares, who shall in either case be deemed, for all purposes hereunder, to be the holders of certificates for such shares as if they had accepted such certificates and shall be held to have expressly assented and agreed to the terms of this Article 10. The Trustees may at any time authorize the issuance of share certificates. In that event, each shareholder shall be entitled to a certificate stating the number of shares owned by him or her, in such form as shall be prescribed from time to time by the Trustees. Such certificates shall be signed by the President or any Vice President and by the Treasurer or any Assistant Treasurer. Such signatures may be a facsimile if the certificates is signed by a transfer agent or registrar, other than a Trustee, officer or employee of the Trust. In case any officer who has signed or whose facsimile signature has been placed on such certificate shall cease to be such officer before such certificate is issued, it may be issued by the Trust with the same effect as if he or she were such officer at the time of its issue. 10.2 Loss of Certificates. In case of the alleged loss or destruction or the mutilation of a share certificate, a duplicate certificate may be issued in place thereof, upon such terms as the Trustees shall prescribe. 10.3 Issuance of New Certificates to Pledgee. A pledgee of shares transferred as collateral security shall be entitled to a new certificate if the instrument of transfer substantially describes the debt or duty that is intended to be secured thereby. Such new certificate shall express on its face that it is held as collateral security, and the name of the pledgor shall be stated thereon, who alone shall be liable as a shareholder and entitled to vote thereon. 10.4 Discontinuance of Issuance of Certificates. The Trustees may at any time discontinue the issuance of share certificates and may, by written notice to each shareholder, require the surrender of share certificates to the Trust for cancellation. Such surrender and cancellation shall not affect the ownership of shares in the Trust. ARTICLE 11 Provisions Relating to the Conduct of the Trust's Business 11.1 Determination of Net Income and Net Asset Value Per Share. The Trustees or any officer or officers or agent or agents of the Trust designated from time to time for this purpose by the Trustees shall determine at least once daily the net income and the value of all the assets -8- attributable to any class or series of shares of the Trust on each day on which the New York Stock Exchange is open for unrestricted trading and at such other times as the Trustees shall designate. The net income and net asset value per share of each class and each series of shares of the Trust shall be determined in accordance with the Investment Company Act of 1940 and the rules and regulations thereunder and any related procedures and/or policies of the Trust, or an officer or officers or agent or agents, as aforesaid, as adopted or authorized by the Trustees from time to time. 11.2 Voting Power. Each whole share shall be entitled to one vote as to any matter on which it is entitled to vote and each fractional share shall be entitled to a proportionate fractional vote. ARTICLE 12 Shareholders' Voting Powers and Meetings 12.1 Record Dates. For the purpose of determining the shareholders who are entitled to vote or act at any meeting or any adjournment thereof, or who are entitled to receive payment of any dividend or of any other distribution, the Trustees may from time to time fix a time, which shall be not more than 90 days before the date of any meeting of shareholders or the date for the payment of any dividend or of any distribution, and in such case only shareholders of record on such record date shall have the right notwithstanding any transfer of shares on the books of the Trust after the record date; or without fixing such record date the Trustees may for any of such purposes close the register or transfer books for all or any of such period. ARTICLE 13 Amendments to the By-Laws 13.1 General. These By-Laws may be amended or repealed, in whole or in part, by a majority of the Trustees then in office at any meeting of the Trustees, or by written consent in lieu thereof. ARTICLE 14 Proxy Instructions 14.1 Proxy Instructions Transmitted by Telephonic or Electronic Means. The placing of a Shareholder's name on a proxy pursuant to telephonic or electronically transmitted instructions obtained pursuant to procedures reasonably designed to verify that such instructions have been authorized by such Shareholder shall constitute execution of such proxy by or on behalf of such Shareholder. -9- EX-99.(4) 3 dex994.txt AGREEMENT AND PLAN OF REORGANIZATION Exhibit (4) AGREEMENT AND PLAN OF REORGANIZATION This Agreement and Plan of Reorganization (the "Agreement") is made as of February 13, 2008, by and between Gateway Fund (the "Acquired Fund"), a series of The Gateway Trust, an Ohio business trust (the "Existing Trust"), and Gateway Fund (the "Acquiring Fund"), a series of Gateway Trust, a Massachusetts business trust (the "New Trust"). PLAN OF REORGANIZATION (a) The Acquired Fund shall sell, assign, convey, transfer and deliver to the Acquiring Fund on the Exchange Date (as defined in Section 6) all of its properties and assets. In consideration therefor, the Acquiring Fund shall, on the Exchange Date, assume all of the known and unknown liabilities of the Acquired Fund existing at the Valuation Time (as defined in Section 3(c)) and deliver to the Acquired Fund a number of full and fractional Class A shares of beneficial interest of the Acquiring Fund (the "Merger Shares") having an aggregate net asset value equal to the value of the assets of the Acquired Fund transferred to the Acquiring Fund on such date less the value of the liabilities of the Acquired Fund assumed by the Acquiring Fund on that date. It is intended that the reorganization described in this Agreement shall be a reorganization within the meaning of Section 368 of the Internal Revenue Code of 1986, as amended and in effect from time to time (the "Code"). (b) Upon consummation of the transactions described in paragraph (a) of this Plan of Reorganization, the Acquired Fund shall distribute the Merger Shares in complete liquidation to its shareholders of record as of the Exchange Date, each shareholder being entitled to receive that proportion of Merger Shares which the number of shares of the Acquired Fund held by such shareholder bears to the total number of shares of the Acquired Fund outstanding on such date. Certificates representing the Merger Shares will not be issued. All issued and outstanding shares of beneficial interest of the Acquired Fund will simultaneously be cancelled on the books of the Acquired Fund. (c) As soon as practicable following the liquidation of the Acquired Fund as aforesaid, the Acquired Fund shall be dissolved pursuant to the provisions of the Second Amended Agreement and Declaration of Trust of the Existing Trust, as amended, and applicable law, and its legal existence terminated. Any reporting responsibility of the Acquired Fund is and shall remain the responsibility of the Acquired Fund up to and including the Exchange Date and, if applicable, such later date on which the Acquired Fund is dissolved. AGREEMENT The New Trust, on behalf of the Acquiring Fund, and the Existing Trust, on behalf of the Acquired Fund, agree as follows: 1. Representations, Warranties and Agreements of the Acquiring Fund. The New Trust, and not the individual Trustees and officers thereof, on behalf of the Acquiring Fund, represents and warrants to the best of its knowledge and agrees with the Existing Trust, on behalf of the Acquired Fund that: a. The Acquiring Fund is a series of shares of the New Trust, a Massachusetts business trust duly established 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 out its obligations under this Agreement. The New Trust is qualified as a foreign association in every jurisdiction where required, except to the extent that failure to so qualify would not have a material adverse effect on the New Trust or the Acquiring Fund. Each of the New Trust and the Acquiring Fund has all necessary federal, state and local authorizations to carry on its business as now being conducted and to carry out this Agreement. b. The New Trust is registered under the Investment Company Act of 1940, as amended (the "1940 Act"), as an open-end management investment company, and such registration has not been revoked or rescinded and is in full force and effect. c. The Acquiring Fund has no assets and liabilities, except for nominal shares issued and redeemed prior to the consummation of the transactions contemplated hereby. d. The New Trust is not in violation in any material respect of any provisions of its Agreement and Declaration of Trust or By-Laws or of any agreement, indenture, instrument, contract, lease or other undertaking to which the New Trust 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. e. The prospectuses and statement of additional information of the Acquiring Fund, each dated November 21, 2007 and each as from time to time amended or supplemented (collectively, the "Acquiring Fund Prospectus"), previously furnished to the Acquired Fund, (i) conform in all material respects to the applicable requirements of the Securities Act of 1933, as amended (the "1933 Act"), and (ii) did not as of such date and do not contain, with respect to the New Trust or the Acquiring Fund, any untrue statements of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. f. There are no material legal, administrative or other proceedings pending or threatened against the New Trust or the Acquiring Fund, which assert liability on the part of the New Trust or the Acquiring Fund. Neither the New Trust nor the Acquiring Fund knows of any facts which might form the basis for the institution of such -2- proceedings or 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 herein contemplated. g. The Acquiring Fund has no known liabilities of a material nature, contingent or otherwise. h. The Acquiring Fund has not commenced operations and has not yet filed its first federal income tax return. At the completion of its first taxable year, the Acquiring Fund will file its federal income tax return as 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. i. No consent, approval, authorization or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as may be required under the 1933 Act, the Securities Exchange Act of 1934, as amended (the "1934 Act"), the 1940 Act and state securities or "Blue Sky" laws (which term as used herein shall include the laws of the District of Columbia and of Puerto Rico). j. There are no material contracts outstanding to which the Acquiring Fund is a party, other than as are or will be disclosed in the Registration Statement or the Acquired Fund Proxy Statement (each as defined in Section 1(p) herein) or the Acquiring Fund Prospectus. k. All of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with all applicable federal and state securities laws (including any applicable exemptions therefrom), or the Acquiring Fund has taken any action necessary to remedy any prior failure to have offered for sale and sold such shares in conformity with such laws. l. The Merger Shares will be registered under the 1933 Act with the Securities and Exchange Commission upon effectiveness of the Registration Statement (as defined in Section 1(p) herein) and the issuance, offering and sale of the Merger Shares pursuant to this Agreement will be in compliance with all applicable federal and state securities or "Blue Sky" laws. m. The Merger Shares to be issued to the Acquired Fund have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued Class A shares of beneficial interest in the Acquiring Fund and will be fully paid and, except as set forth in the Registration Statement, nonassessable by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof. n. All shares of the Acquiring Fund that are issued and outstanding have been, are, and at the Exchange Date will be, duly and validly issued and outstanding, fully paid and, except as set forth in the Registration Statement, nonassessable by the Acquiring Fund. The Acquiring Fund does not have outstanding any options, warrants or -3- other rights to subscribe for or purchase any of the Acquiring Fund shares, nor is there outstanding any security convertible into any of the Acquiring Fund shares. o. The Acquiring Fund has not yet commenced investment operations. p. The registration statement on Form N-14 (the "Registration Statement") filed with the Securities and Exchange Commission (the "Commission") by the New Trust on behalf of the Acquiring Fund, which registers the Merger Shares issuable hereunder and is also the proxy statement of the Acquired Fund relating to the meeting of the Acquired Fund's shareholders referred to in Section 7 herein (together with the documents incorporated therein by reference, the "Acquired Fund Proxy Statement"), on the effective date of the Registration Statement (i) did comply, does comply and will comply at all relevant times in all material respects with the provisions of the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder and (ii) did not, does not, and will not at any relevant times contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Exchange Date, the prospectus which is contained in the Registration Statement, as amended or supplemented by any amendments or supplements filed with the Commission by the New Trust, and the Acquired Fund Proxy Statement did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that none of the representations and warranties in this subparagraph (p) shall apply to statements in or omissions from the Registration Statement or the Acquired Fund Proxy Statement made in reliance upon and in conformity with information furnished by the Acquired Fund for use in the Registration Statement or the Acquired Fund Proxy Statement. q. The New Trust satisfies the fund governance standards defined in Rule 0-1(a)(7) under the 1940 Act. 2. Representations, Warranties and Agreements of the Acquired Fund. The Existing Trust, and not the individual Trustees and officers thereof, on behalf of the Acquired Fund, represents and warrants to the best of its knowledge and agrees with the New Trust, on behalf of the Acquiring Fund that: a. The Acquired Fund is a series of shares of the Gateway Trust, an Ohio business trust duly established and validly existing under the laws of the State of Ohio, and has power to own all of its properties and assets and to carry out this Agreement. The Existing Trust is qualified as a foreign association in every jurisdiction where required, except to the extent that failure to so qualify would not have a material adverse effect on the Existing Trust or the Acquired Fund. Each of the Existing Trust and the Acquired Fund has all necessary federal, state and local authorizations to own all of its properties and assets and to carry on its business as now being conducted and to carry out this Agreement. -4- b. The Existing Trust is registered under the 1940 Act as an open-end management investment company, and such registration has not been revoked or rescinded and is in full force and effect. c. A statement of assets and liabilities, statement of operations, statement of changes in net assets and a schedule of investments (indicating their market values) of the Acquired Fund as of and for the period ended December 31, 2006 and a statement of assets and liabilities, statement of operations, statement of changes in net assets and a schedule of investments for the six months ended June 30, 2007 have been furnished to the Acquiring Fund prior to the Exchange Date. Such statement of assets and liabilities and schedule fairly present the financial position of the Acquired Fund as of such date and said statements of operations and changes in net assets fairly reflect the results of its operations and changes in net assets for the periods covered thereby in conformity with generally accepted accounting principles. d. Since June 30, 2007 there has not been any material adverse change in the Acquired Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness, except as disclosed in writing to the Acquiring Fund. For the purposes of this subsection (d) and of Section 9(a) of this Agreement, 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. e. The Existing Trust is not in violation in any material respect of any provision of its Agreement and Declaration of Trust or By-Laws or of any agreement, indenture, instrument, contract, lease or other undertaking to which the Existing Trust 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. f. The prospectus and the statement of additional information of the Acquired Fund, each dated May 1, 2007 and each as from time to time amended or supplemented (collectively, the "Acquired Fund Prospectus"), previously furnished to the Acquiring Fund (i) conform in all material respects to the applicable requirements of the 1933 Act and (ii) did not contain as of such date and do not contain, with respect to the Existing Trust and the Acquired Fund, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. g. The Acquired Fund's investment operations from January 1, 2002 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. h. At the Exchange Date, the Existing Trust, on behalf of the Acquired Fund, will have good and marketable title to its assets to be transferred to the Acquiring Fund pursuant to this Agreement and will have full right, power and authority to sell, assign, transfer and deliver the Investments (as defined below) and all other assets and known -5- and unknown liabilities of the Acquired Fund to be transferred to the Acquiring Fund pursuant to this Agreement. At the Exchange 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 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 in writing to the Acquiring Fund. i. There are no material legal, administrative or other proceedings pending or threatened against the Existing Trust or the Acquired Fund, which assert liability on the part of the Existing Trust or the Acquired Fund. The Acquired Fund knows of no facts which might form the basis for the institution of such proceedings 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 herein contemplated. j. There are no material contracts outstanding to which the Acquired Fund is a party, other than as are or will be disclosed in Acquired Fund Prospectus, the registration statement on Form N-1A of the Acquired Fund or the Acquired Fund Proxy Statement, or have been disclosed or made available to Natixis Asset Management Advisors, L.P. k. The Acquired Fund has no known liabilities of a material nature, contingent or otherwise, other than those that are shown on the Acquired Fund's statement of assets and liabilities as of June 30, 2007 referred to above and those incurred in the ordinary course of its business as an investment company since such date. Prior to the Exchange Date, the Acquired Fund will quantify and reflect on its balance sheet all of its material known liabilities and will advise the Acquiring Fund of all material liabilities, contingent or otherwise, incurred by it subsequent to June 30, 2007 whether or not incurred in the ordinary course of business. l. As of the Exchange Date, the Acquired Fund will have filed all required federal and other tax returns and reports which, to the knowledge of the Existing Trust's officers, are required to have been filed by the Acquired Fund by such date and has paid or will pay all federal and other taxes shown to be due on said returns or on any assessments received by the Acquired Fund. All tax liabilities of the Acquired Fund have been adequately provided for on its books, and no tax deficiency or liability of the Acquired Fund has been asserted, and no question with respect thereto has been raised or is under audit by the Internal Revenue Service or by any state, local or other tax authority for taxes in excess of those already paid. m. The Existing Trust, on behalf of the Acquired Fund, has and, at the Exchange Date, will have, full right, power and authority to sell, assign, transfer and deliver the Investments (as defined below) and any other assets and liabilities of the Acquired Fund to be transferred to the Acquiring Fund pursuant to this Agreement. At the Exchange Date, subject only to the delivery of the Investments and any such other -6- assets and liabilities as contemplated by this Agreement, the Acquiring Fund 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. As used in this Agreement, the term "Investments" shall mean the Acquired Fund's investments shown on the schedule of its investments as of June 30, 2007 referred to in Section 2(c) hereof, as modified by such changes in the portfolio as the Acquired Fund shall make in the ordinary course of business since such date, and changes resulting from stock dividends, stock split-ups, mergers and similar corporate actions through the Exchange Date. n. No registration under the 1933 Act of any of the Investments would be required if they were, as of the time of such transfer, the subject of a public distribution by either of the Acquiring Fund or the Acquired Fund, except as previously disclosed to the Acquiring Fund by the Acquired Fund. o. No consent, approval, authorization or order of any court or governmental authority is required for the consummation by the Acquired Fund of the transactions contemplated by this Agreement, except such as may be required under the 1933 Act, 1934 Act, the 1940 Act or state securities or "Blue Sky" laws. p. The Acquired Fund qualifies and will at all times through the Exchange Date qualify for taxation as a "regulated investment company" under Subchapter M of the Code. The Acquired Fund has satisfied or will satisfy the diversification requirement under Subchapter M of the Code at the end of the fiscal quarters ending March 31, 2007, June 30, 2007, September 30, 2007, and December 31, 2007. q. At the Exchange Date, the Acquired Fund will have sold such of its assets, if any, as are necessary to assure that, after giving effect to the acquisition of the assets of the Acquired Fund pursuant to this Agreement, the Acquiring Fund will remain a "diversified company" within the meaning of Section 5(b)(1) of the 1940 Act and in compliance with all other investment restrictions set forth in the Acquired Fund Prospectus, as amended through the Exchange Date. r. All of the issued and outstanding shares of beneficial interest of the Acquired Fund have been offered for sale and sold in conformity with all applicable federal and state securities laws (including any applicable exemptions therefrom), or the Acquired Fund has taken any action necessary to remedy any prior failure to have offered for sale and sold such shares in conformity with such laws. s. All issued and outstanding shares of beneficial interest of the Acquired Fund are, and at the Exchange Date will be, duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. The Acquired Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any of the Acquired Fund shares, nor is there outstanding any security convertible into any of the Acquired Fund shares. -7- t. The Acquired Fund Proxy Statement, on the date of its filing (i) complied in all material respects with the provisions of the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder and (ii) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Exchange Date, the Acquired Fund Proxy Statement did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that none of the representations and warranties in this subsection shall apply to statements in or omissions from the Acquired Fund Proxy Statement made in reliance upon and in conformity with information furnished by the Acquiring Fund for use in the Acquired Fund Proxy Statement. u. The Existing Trust has no material contracts or other commitments (other than this Agreement, such other contracts as may be entered into in the ordinary course of its business and such other contracts as have been previously disclosed or made available to Natixis Asset Management Advisors, L.P.) which if terminated may result in material liability to the Acquired Fund (or to the Acquiring Fund as a result of the transactions contemplated by this Agreement) or under which (whether or not terminated) any material payments for periods subsequent to the Exchange Date will be due from the Acquired Fund (or from the Acquiring Fund as a result of the transactions contemplated by this Agreement). v. The information provided by the Acquired Fund for use in the Registration Statement and Proxy Statement was accurate and complete in all material respects when supplied and complied with federal securities and other laws and regulations applicable thereto in all material respects, and has remained accurate and complete and in such compliance through the date hereof. w. Gateway Investment Advisers, L.P. does not have any right under any current fee waiver, expense reimbursement or similar arrangement with the Acquired Fund to recoup any waived or reimbursed fees or expenses. x. The Existing Trust satisfies the fund governance standards defined in Rule 0-1(a)(7) under the 1940 Act. 3. Reorganization. a. Subject to the requisite approval of the shareholders of the Acquired Fund and to the other terms and conditions contained herein, the Acquired Fund agrees to sell, assign, convey, transfer and deliver to the Acquiring Fund, and the Acquiring Fund agrees to acquire from the Acquired Fund, on the Exchange Date all of the Investments and all of the cash and other properties and assets of the Acquired Fund, whether accrued or contingent, in exchange for that number of shares of beneficial interest of the Acquiring Fund provided for in Section 4 and the assumption by the Acquiring Fund of all of the liabilities of the Acquired Fund, whether accrued or contingent, existing at the Valuation Time. The Acquired Fund will, as soon as practicable after the Exchange -8- Date, distribute in complete liquidation all of the Merger Shares received by it to the shareholders of the Acquired Fund in exchange for their shares of the Acquired Fund. b. The Existing Trust, on behalf of the Acquired Fund, will pay or cause to be paid to the Acquiring Fund any interest, cash or such dividends, rights and other payments received for the account of the Acquired Fund on or after the Exchange Date with respect to the Investments and other properties and assets of the Acquired Fund, whether accrued or contingent, received on or after the Exchange Date. Any such distribution shall be deemed included in the assets transferred to the Acquiring Fund at the Exchange Date and shall not be separately valued unless the securities in respect of which such distribution is made shall have gone "ex" such distribution prior to the Valuation Time, in which case any such distribution which remains unpaid at the Exchange Date shall be included in the determination of the value of the assets of the Acquired Fund acquired by the Acquiring Fund. c. The Valuation Time shall be 4:00 p.m. Eastern time on the Exchange Date or such other time as may be mutually agreed upon in writing by the parties hereto (the "Valuation Time"). d. In the event that immediately prior to 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 said Exchange or elsewhere shall be disrupted so that accurate appraisal of the net asset value of the Acquired Fund or the Acquiring Fund is impracticable, the Exchange 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 or such other date as may be agreed upon by the New Trust and Existing Trust; provided that if trading shall not be fully resumed and reporting restored within seven business days after the Exchange Date, this Agreement may be terminated by Acquiring Fund or the Acquired Fund upon the giving of written notice to the other party. 4. Exchange Date; Valuation Time. On the Exchange Date, the Acquiring Fund will deliver to the Acquired Fund a number of full and fractional Merger Shares having an aggregate net asset value equal to the value of the assets of the Acquired Fund on such date less the value of the liabilities of the Acquired Fund assumed by the Acquiring Fund on that date, determined as hereinafter provided in this Section 4. a. The net asset value of the Merger Shares to be delivered to the Acquired Fund, the value of the assets of the Acquired Fund, and the value of the liabilities of the Acquired Fund to be assumed by the Acquiring Fund, shall in each case be determined as of the Valuation Time. b. The net asset value of the Merger Shares shall be computed in the manner set forth in the Acquiring Fund Prospectus. The value of the assets and liabilities of the Acquired Fund shall be determined by the Acquiring Fund, in cooperation with the Acquired Fund, pursuant to procedures which the Acquiring Fund would use in determining the fair market value of the Acquiring Fund's assets and liabilities. Each of the Existing Trust, on behalf of the Acquired Fund, and the New Trust, on behalf of the -9- Acquiring Fund, hereby agrees to cooperate with the other party in valuing the securities held by the Acquired Fund and agrees to take reasonable steps to ensure that the valuation procedures used by the Acquired Fund and the Acquiring Fund as of the Valuation Time are substantially identical. c. No adjustment shall be made in the net asset value of either the Acquired Fund or the Acquiring Fund to take into account differences in realized and unrealized gains and losses. d. The Acquiring Fund shall issue the Merger Shares to the Acquired Fund. The Acquired Fund shall promptly distribute the Merger Shares to the shareholders of the Acquired Fund by establishing open accounts for each Acquired Fund shareholder on the transfer records of the Acquiring Fund. The Acquiring Fund and the Acquired Fund agree to cooperate in the establishment of such open accounts. Certificates representing Merger Shares will not be issued to Acquired Fund shareholders. Any certificates representing shares of the Acquired Fund shall automatically be cancelled and each holder of a certificate representing shares of the Acquired Fund shall cease to have any rights with respect thereto, except the right to receive Merger Shares as provided herein. e. On the Exchange Date, the Acquiring Fund shall assume all liabilities of the Acquired Fund, whether accrued or contingent, known or unknown, in connection with the acquisition of assets and subsequent liquidation and dissolution of the Acquired Fund or otherwise. 5. Expenses, Fees, etc. a. Except as otherwise provided in this Section 5, IXIS Anchor Acquisition, LLC (to be renamed Gateway Investment Advisers, LLC as of 4:01 p.m. on February 15, 2008), by countersigning this Agreement, agrees that it will bear any and all costs and expenses of the transaction incurred by the Acquiring Fund and the Acquired Fund including the costs and expenses of the dissolution of the Acquired Fund, including without limitation the costs and expenses of any state or federal filings to terminate the existence of the Existing Trust and deregister the Existing Trust as an investment company; provided, however, that the Acquiring Fund and the Acquired Fund will each pay any brokerage commissions, dealer mark-ups and similar expenses ("Portfolio Expenses") that it may incur in connection with the purchases or sale of portfolio securities; and provided further that, IXIS Anchor Acquisition, LLC or its affiliates will pay or reimburse the Acquiring Fund for all governmental fees required in connection with the registration or qualification of the Merger Shares issued in connection with the reorganization described in this Agreement. b. In the event the transactions contemplated by this Agreement are not consummated, then IXIS Anchor Acquisition, LLC agrees that it shall bear all of the costs and expenses (other than Portfolio Expenses) incurred by both the Acquiring Fund and the Acquired Fund in connection with such transactions. -10- c. Notwithstanding any other provisions of this Agreement, if for any reason the transactions contemplated by this Agreement are not consummated, neither the Acquiring Fund nor the Acquired Fund shall be liable to the other for any damages resulting therefrom, including, without limitation, consequential damages, except as specifically set forth above. d. Notwithstanding any of the foregoing, costs and expenses will in any event be paid by the party directly incurring them if and to the extent that the payment by another party of such costs and expenses would result in the disqualification of such party as a "regulated investment company" within the meaning of Subchapter M of the Code. 6. Exchange Date. Delivery of the assets of the Acquired Fund to be transferred, assumption of the liabilities of the Acquired Fund to be assumed, and delivery of the Merger Shares to be issued shall be made at the offices of Natixis Asset Management Advisors, L.P., 399 Boylston Street, Boston, MA 02116, as of the close of business on February 15, 2008, or at such other time and date agreed to by the Acquiring Fund and the Acquired Fund, the date and time upon which such delivery is to take place being referred to herein as the "Exchange Date." 7. Meeting of Shareholders; Dissolution. a. The Existing Trust, on behalf of the Acquired Fund, shall call a meeting of the Acquired Fund's shareholders to take place after the effective date of the Registration Statement for the purpose of considering the approval of this Agreement. b. The Acquired Fund agrees that the liquidation and dissolution of the Acquired Fund will be effected in the manner provided in the Agreement and Declaration of Trust of the Existing Trust in accordance with applicable law and that, after the Exchange Date, the Acquired Fund shall not conduct any business except in connection with its liquidation and dissolution. c. The Acquiring Fund shall have filed the Registration Statement with the Commission. Each of the Acquired Fund and the Acquiring Fund shall cooperate with the other, and each will furnish to the other the information relating to itself required by the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder to be set forth in the Registration Statement. 8. Conditions to the Acquiring Fund's Obligations. The obligations of the Acquiring Fund hereunder shall be subject to the following conditions: a. That the Acquired Fund shall have furnished to the Acquiring Fund a statement of the Acquired Fund's assets and liabilities, with values determined as provided in Section 4 of this Agreement, together with a list of Investments with their respective tax costs, all as of the Valuation Time, certified on the Acquired Fund's behalf by the President (or any Vice President) and Treasurer (or any Assistant Treasurer) of the Existing Trust, and a certificate of both such officers, dated the Exchange Date, that there has been no material adverse change in the financial position of the Acquired Fund since June 30, 2007, other than changes in the Investments and other assets and properties since that date or changes in the market value of the Investments and other assets of the -11- Acquired Fund, or changes due to dividends paid, and a certificate of both such officers representing and warranting that there are no known liabilities, contingent or otherwise, of the Acquired Fund required to be reflected on a balance sheet (including notes thereto) in accordance with generally accepted accounting principles as of June 30, 2007 or in the Acquired Fund's statement of assets and liabilities as of the Valuation Time that are not so reflected. b. That the Acquired Fund shall have furnished to the Acquiring Fund a statement, dated the Exchange Date, signed by the President (or any Vice President) and Treasurer (or any Assistant Treasurer) of the Existing Trust certifying that as of the Exchange Date all representations and warranties of the Acquired Fund made in this Agreement are true and correct in all material respects as if made at and as of such date and each of the Existing Trust and the Acquired Fund has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date. c. That there shall not be any material litigation pending with respect to the matters contemplated by this Agreement. d. That the Acquiring Fund shall have received an opinion of Thompson Hine LLP, counsel to the Acquired Fund, dated the Exchange Date, to the effect that (i) the Existing Trust is an Ohio business trust duly formed and validly existing under the laws of the State of Ohio, and the Acquired Fund is a separate series thereof duly constituted in accordance with the applicable provisions of the Agreement and Declaration of Trust and By-Laws of the Existing Trust; (ii) this Agreement has been duly authorized, executed and delivered by the Existing Trust on behalf of the Acquired Fund and, assuming that the Registration Statement, the Acquired Fund Prospectus and the Acquired Fund Proxy Statement comply with the 1933 Act, the 1934 Act and the 1940 Act and assuming due authorization, execution and delivery of this Agreement by the New Trust on behalf of the Acquiring Fund, is a valid and binding obligation of the Existing Trust enforceable against the Acquired Fund in accordance with its terms, except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws of general applicability relating to or affecting creditors' rights generally and other equitable principles; (iii) the Existing Trust, on behalf of the Acquired Fund, has power to sell, assign, convey, transfer and deliver the assets contemplated hereby; (iv) the execution and delivery of this Agreement did not, and the consummation of the transactions contemplated hereby will not, to the knowledge of such counsel, violate the Agreement and Declaration of Trust or By-Laws of the Existing Trust, or, to the knowledge of such counsel without having made any investigation, any provision of any material agreement known to such counsel to which the Existing Trust or the Acquired Fund is a party or by which it is bound or, to the knowledge of such counsel without having made any investigation, result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment or decree to which the Existing Trust or the Acquired Fund is party or by which either of them is bound; (v) to the knowledge of such counsel without having made any investigation, no consent, approval, authorization or order of any court or governmental authority is required for the consummation by the Trust on behalf of the Acquired Fund -12- of the transactions contemplated hereby, except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act and such as may be required under state securities or "Blue Sky" laws; (vi) the Existing Trust is registered with the Commission as an investment company under the 1940 Act and the Acquired Fund is duly constituted as a series thereof and, to the knowledge of such counsel, such registration is in full force and effect; and (vii) to the knowledge of such counsel, without having made any investigation, no litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to the Existing Trust or the Acquired Fund or any of their properties or assets that challenges or seeks to prohibit, restrain or enjoin the transactions contemplated by this Agreement. Such opinion may state that such counsel does not express any opinion or belief as to the financial statements or other financial data, or as to the information relating to the Acquiring Fund, contained in the Acquired Fund Proxy Statement or the Registration Statement, and that such opinion is solely for the benefit of the Acquiring Fund, its Trustees and its officers. In connection with the foregoing, it is understood that counsel may rely upon the representations contained in this Agreement as well as certificates of an officer of the Existing Trust. e. That the Acquiring Fund shall have received an opinion of Ropes & Gray LLP, counsel to the Acquiring Fund, dated the Exchange Date (which opinion would be based upon certain factual representations and subject to certain qualifications), to the effect that, on the basis of the existing provisions of the Code, current administrative rules and court decisions, for federal income tax purposes: (i) the transactions contemplated by this Agreement will constitute a reorganization within the meaning of Section 368(a) of the Code, and the Acquiring Fund and the Acquired Fund will each be "a party to the reorganization" within the meaning of Section 368(b) of the Code; (ii) under Section 1032 of the Code, no gain or loss will be recognized by the Acquiring Fund upon receipt of the Investments transferred to the Acquiring Fund pursuant to this Agreement in exchange for the Merger Shares and the assumption by the Acquiring Fund of the liabilities of the Acquired Fund as contemplated in Section 3 hereof; (iii) under Section 362(b) of the Code, the basis to the Acquiring Fund of the Investments will be the same as the basis of the Investments in the hands of the Acquired Fund immediately prior to such exchange; (iv) under Section 1223(2) of the Code, the Acquiring Fund's holding periods with respect to the Investments will include the respective periods for which the Investments were held by the Acquired Fund; (v) the Acquiring Fund will succeed to and take into account the items of the Acquired Fund described in Section 381(c) of the Code, subject to the conditions and limitations specified in Sections 381, 382, 383 and 384 of the Code and the regulations thereunder; and (vi) such other matters as the Acquiring Fund may deem necessary or desirable. f. That the assets of the Acquired Fund to be acquired by the Acquiring Fund will include no assets which the Acquiring Fund, by reason of limitations in the New Trust Declaration of Trust and By-Laws or of investment restrictions disclosed in the Acquiring Fund Prospectus or the Registration Statement as in effect on the Exchange Date, may not properly acquire. -13- g. That the Existing Trust shall have received from the Commission and any relevant state securities administrators such order or orders, if any, as are reasonably necessary or desirable under the 1933 Act, the 1934 Act, the 1940 Act and any applicable state securities or "Blue Sky" laws in connection with the transactions contemplated hereby, and that all such orders shall be in full force and effect. h. That all actions taken by the Existing Trust on behalf of the Acquired Fund in connection with the transactions contemplated by this Agreement and all documents incidental thereto shall be satisfactory in form and substance to the Acquiring Fund and Ropes & Gray LLP. i. That the Acquired Fund shall have furnished to the Acquiring Fund a certificate, signed by the President (or any Vice President) and the Treasurer (or any Assistant Treasurer) of the Existing Trust, as to the tax cost to the Acquired Fund of the Investments delivered to the Acquiring Fund pursuant to this Agreement, together with any such other evidence as to such tax cost as the Acquiring Fund may reasonably request. j. That the Acquired Fund's custodian shall have delivered to the Acquiring Fund a certificate identifying all of the assets of the Acquired Fund held or maintained by such custodian as of the Valuation Time. k. That the Acquired Fund's transfer agent shall have provided to the Acquiring Fund (i) the originals or true copies of all of the records of the Existing Trust attributable to the Acquired Fund in the possession of such transfer agent as of the Exchange Date, (ii) a certificate setting forth the number of shares of the Acquired Fund outstanding as of the Valuation Time, and (iii) the name and address of each holder of record of any shares of the Acquired Fund and the number of shares held of record by each such shareholder. l. That all of the issued and outstanding shares of beneficial interest of the Acquired Fund shall have been offered for sale and sold in conformity with all applicable state securities or "Blue Sky" laws (including any applicable exemptions therefrom) and, to the extent that any examination of the records of the Acquired Fund or its transfer agent by the Acquiring Fund or its agents shall have revealed otherwise, the Acquired Fund shall have taken all actions that in the opinion of the Acquiring Fund or Ropes & Gray LLP are necessary to remedy any prior failure on the part of the Acquired Fund to have offered for sale and sold such shares in conformity with such laws. m. That this Agreement shall have been adopted and the transactions contemplated hereby shall have been approved by the requisite votes of the holders of the outstanding shares of beneficial interest of the Acquired Fund entitled to vote. n. The Acquired Fund shall have timely filed all required federal and state income tax returns for the tax year ended December 31, 2006. o. That the Registration Statement shall have become effective under the 1933 Act, and no stop order suspending such effectiveness shall have been instituted or, to the knowledge of the New Trust or the Acquiring Fund, threatened by the Commission. -14- 9. Conditions to the Acquired Fund's Obligations. The obligations of the Acquired Fund hereunder shall be subject to the following conditions: a. That the Acquiring Fund shall have furnished to the Acquired Fund a statement of the Acquiring Fund's net assets, together with a list of portfolio holdings with values determined as provided in Section 4, all as of the Valuation Time, certified on the Acquiring Fund's behalf by the President (or any Vice President) and Treasurer (or any Assistant Treasurer) of the New Trust, and a certificate of both such officers, dated the Exchange Date, to the effect that as of the Valuation Time and as of the Exchange Date there has been no material adverse change in the financial position of the Acquiring Fund since the date hereof. b. That the New Trust, on behalf of the Acquiring Fund, shall have executed and delivered to the Acquired Fund a document dated as of the Exchange Date, pursuant to which the Acquiring Fund will, in connection with the transactions contemplated by this Agreement, assume all of the known and unknown liabilities of the Acquired Fund existing as of the Valuation Time. c. That the Acquiring Fund shall have furnished to the Acquired Fund a statement, dated the Exchange Date, signed by the President (or any Vice President) and Treasurer (or any Assistant Treasurer) of the New Trust certifying that as of the Exchange Date all representations and warranties of the Acquiring Fund made in this Agreement are true and correct in all material respects as if made at and as of such date, and that each of the New Trust and the Acquiring Fund has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied at or prior to such date. d. That there shall not be any material litigation pending or threatened with respect to the matters contemplated by this Agreement. e. That the Acquired Fund shall have received an opinion of Ropes & Gray LLP, counsel to the Acquiring Fund, dated the Exchange Date, to the effect that (i) the New Trust is an unincorporated voluntary association with transferable shares duly formed and validly existing under the laws of the Commonwealth of Massachusetts (commonly known as a Massachusetts business trust), and the Acquiring Fund is a separate series thereof duly constituted in accordance with the applicable provisions of the 1940 Act and the Agreement and Declaration of Trust and By-Laws of the New Trust; (ii) this Agreement has been duly authorized, executed and delivered by the New Trust on behalf of the Acquiring Fund and, assuming that the Acquiring Fund Prospectus, the Registration Statement and the Acquired Fund Proxy Statement comply with the 1933 Act, the 1934 Act and the 1940 Act and assuming due authorization, execution and delivery of this Agreement by the Existing Trust on behalf of the Acquired Fund, is a valid and binding obligation of the New Trust, enforceable against the Acquiring Fund in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, -15- fraudulent transfer, reorganization, moratorium or other similar laws of general applicability relating to or affecting creditors' rights generally and other equitable principles; (iii) the Merger Shares to be delivered to the Acquired Fund as provided for by this Agreement are duly authorized and upon such delivery will be validly issued and will be fully paid and, except as set forth below, nonassessable by New Trust and the Acquiring Fund and no shareholder of the Acquiring Fund has any preemptive right to subscription or purchase in respect thereof; (iv) the Registration Statement and all post-effective amendments filed with the Commission on or before the Closing Date, if any, has become effective under the 1933 Act, and based upon oral inquiries to the Commission staff on such date, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for any such purpose is pending or threatened by the Commission; (v) the execution and delivery of this Agreement did not, and the consummation of the transactions contemplated hereby will not, to the knowledge of such counsel, violate the Agreement and Declaration of Trust or By-Laws of the New Trust, or, to the knowledge of such counsel without having made any investigation, any provision of any material agreement known to such counsel to which the New Trust or the Acquiring Fund is a party or by which it is bound or, to the knowledge of such counsel without having made any investigation, result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment or decree to which the New Trust or the Acquiring Fund is party or by which either of them is bound, it being understood that with respect to investment restrictions as contained in the Agreement and Declaration of Trust, By-Laws or then-current prospectuses or statement of additional information of the New Trust, such counsel may rely upon a certificate of an officer of the New Trust; (vi) to the knowledge of such counsel without having made any investigation, no consent, approval, authorization or order of any court or governmental authority is required for the consummation by the New Trust on behalf of the Acquiring Fund of the transactions contemplated herein, except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act and such as may be required under state securities or "Blue Sky" laws; (vii) the New Trust is registered with the Commission as an investment company under the 1940 Act and, to the knowledge of such counsel, the Commission has not issued to the Acquiring Fund notice of any hearing or other proceeding to consider suspension or revocation of such registration; and (viii) to the knowledge of such counsel, without having made any investigation, no litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to the New Trust or the Acquiring Fund or any of their properties or assets that challenges or seeks to prohibit, restrain or enjoin the transactions contemplated by this Agreement. Such opinion may also state that such counsel does not express any opinion or belief as to the financial statements or other financial data, or as to the information relating to the Acquired Fund, contained in the Acquired Fund Proxy Statement or the Registration Statement, and that such opinion is solely for the benefit of the Acquired Fund, its Trustees and its officers. In connection with the foregoing, it is understood that counsel may rely upon the representations contained in this Agreement as well as certificates of an officer of the New Trust, including certificates with respect to investment restrictions contained in the New Trust's Declaration of Trust or By-Laws or then-current prospectus or statement of additional information. -16- Such opinion may also include a statement to the following effect: The Acquiring Trust is an entity of the type commonly known as a "Massachusetts business trust." Under Massachusetts law, shareholders could, under certain circumstances, be held personally liable for the obligations of the Acquiring Trust. However, the Agreement and Declaration of Trust of the Acquiring Trust disclaims shareholder liability for acts or obligations of the Acquiring Trust and requires that a notice of such disclaimer be given in each note, bond, contract, instrument, certificate or undertaking made or issued by or on behalf of the Acquiring Trust's trustees, officers or otherwise. The Agreement and Declaration of Trust of the Acquiring trust provides that in case any shareholder or former shareholder shall be held to be personally liable solely by reason of his or her being or having been a shareholder of the Acquiring Trust or of a particular series or class and not because of his or her acts or omissions or for some other reason, the shareholder or former shareholder (or his or her heirs, executors, administrators or other legal representatives or, in the case of a corporation or other entity, its corporate or other general successor) shall be entitled out of the assets of the series (or attributable to the class) of which he or she is or was a shareholder to be held harmless from and indemnified against all loss and expense arising from such liability. Thus, the risk of a shareholder's incurring financial loss on account of shareholder liability is limited to circumstances in which the particular series of which he or she is or was a shareholder would be unable to meet its obligations. f. That the Acquired Fund shall have received an opinion of Ropes & Gray LLP, dated the Exchange Date (which opinion would be based upon certain factual representations and subject to certain qualifications), in form satisfactory to the Acquired Fund to the effect that, on the basis of the existing provisions of the Code, current administrative rules and court decisions, for federal income tax purposes: (i) the transactions contemplated by this Agreement will constitute a reorganization within the meaning of Section 368(a) of the Code, and the Acquiring Fund and the Acquired Fund will each be "a party to the reorganization" within the meaning of Section 368(b) of the Code; (ii) under Section 361 of the Code, no gain or loss will be recognized by the Acquired Fund (x) upon the transfer of its assets to the Acquiring Fund in exchange for the Merger Shares and the assumption by the Acquiring Fund of the liabilities of the Acquired Fund as contemplated in Section 3 hereof or (y) upon the distribution of the Merger Shares to the shareholders of the Acquired Fund as contemplated in Section 3 hereof; (iii) under Section 354 of the Code, no gain or loss will be recognized by shareholders of the Acquired Fund on the distribution of Merger Shares to them in exchange for their shares of the Acquired Fund; (iv) under Section 358 of the Code, the aggregate tax basis of the Merger Shares that the Acquired Fund's shareholders receive in place of their Acquired Fund shares will be the same as the aggregate tax basis of the Acquired Fund shares surrendered in exchange therefor; and (v) under Section 1223(1) of the Code, an Acquired Fund's shareholder's holding period for the Merger Shares received pursuant to the Agreement will be determined by including the holding period for the Acquired Fund shares exchanged for the Merger Shares, provided that the shareholder held the Acquired Fund shares as a capital asset. g. That all actions taken by the New Trust on behalf of the Acquiring Fund in connection with the transactions contemplated by this Agreement and all documents incidental thereto shall be satisfactory in form and substance to the Acquired Fund and Thompson Hine LLP. -17- h. That the New Trust shall have received from the Commission and any relevant state securities administrator such order or orders as are reasonably necessary or desirable under the 1933 Act, the 1934 Act, the 1940 Act and any applicable state securities or "Blue Sky" laws in connection with the transactions contemplated hereby, and that all such orders shall be in full force and effect. i. That this Agreement shall have been adopted and the transactions contemplated hereby shall have been approved by the requisite votes of the holders of the outstanding shares of beneficial interest of the Acquired Fund entitled to vote. j. That the Registration Statement on Form N-1A of the New Trust, with respect to the Acquiring Fund, shall have become effective under the 1933 Act, and no stop order suspending such effectiveness shall have been instituted or, to the knowledge of the New Trust or the Acquiring Fund, threatened by the Commission. k. That the New Trust shall have included in its Declaration of Trust or By-Laws provisions that indemnify, solely out of assets of the Acquiring Fund and no other assets, the trustees and officers of the Existing Trust on the Exchange Date, and all prior trustees and officers of the Existing Trust, against claims that may be made against such trustees and officers of the Existing Trust in their capacity as such trustees or officers, with such provisions to be substantially similar in form and substance to the provisions under which the trustees and officers of the New Trust are indemnified. l. That there shall have been (i) obtained on behalf of the Acquiring Fund "tail" liability insurance with the aggregate coverage amount of $10,000,000 and a retention amount of $150,000 per claim ($0 for the trustees) covering claims that may be made against the trustees and the officers of the Existing Trust in their capacity as such trustees or officers for a period of six years following the Exchange Date and (ii) obtained on behalf of the Acquiring Fund "tail" liability insurance with an aggregate coverage amount of $5,000,000 covering claims that may be made against the independent trustees of the Existing Trust in their capacity as such independent trustees for a period of six years following the Exchange Date. By countersigning this Agreement, IXIS Anchor Acquisition, LLC (to be renamed Gateway Investment Advisers, LLC as of 4:01 p.m. on February 15, 2008) agrees that it, and not the New Trust, will pay or cause to be paid the premiums incurred in connection with the "tail" insurance referred to in clauses (i) and (ii) above. 10. Existing Trust Trustee and Officer Indemnification and Insurance. The New Trust agrees to (i) take such steps as are necessary to ensure that the provisions in its Declaration and Trust and By-Laws referred to in clause (i) of Section 9(k) hereof remain in full force and effect, to the maximum extent permitted by applicable law, and (ii) for a period of six years after the Exchange Date, maintain the "tail" insurance referred to in clause (ii) of Section 9(l) hereof. -18- 11. Certain Tax Returns. The Existing Trust and the New Trust hereby agree that the federal tax returns for the tax year ended December 31, 2008, consistent with a reorganization pursuant to Section 368(a)(1)(F) of the Code, will be a single return based on the operations of the Acquired Fund from January 1, 2008 through the Exchange Date and the operations of the Acquiring Fund from the Exchange Date through December 31, 2008. 12. Indemnification. a. The Acquired Fund shall indemnify and hold harmless, out of the assets of the Acquired Fund but no other assets, the New Trust and the Trustees and officers of the New Trust (for purposes of this Section 12(a), the "New Trust Indemnified Parties") against any and all expenses, losses, claims, damages and liabilities at any time imposed upon or reasonably incurred by any one or more of the New Trust Indemnified Parties in connection with, arising out of or resulting from any claim, action, suit or proceeding in which any one or more of the New Trust Indemnified Parties may be involved or with which any one or more of the New Trust Indemnified Parties may be threatened by reason of any breach of any representation or warranty of the Acquired Fund contained in this Agreement or untrue statement or alleged untrue statement of a material fact contained in the Acquired Fund Prospectus, or, to the extent based on or derived from the Acquired Fund Prospectus or other documents provided by the Acquired Fund, contained in the Registration Statement or the Acquired Fund Proxy Statement or any amendment or supplement to any of the foregoing, or arising out of or based upon the omission or alleged omission to state in any of the foregoing a material fact relating to the Existing Trust or the Acquired Fund required to be stated therein or necessary to make the statements relating to the Existing Trust or the Acquired Fund therein not misleading, including, without limitation, any amounts paid by any one or more of the New Trust Indemnified Parties in a reasonable compromise or settlement of any such claim, action, suit or proceeding, or threatened claim, action, suit or proceeding made with the consent of the Existing Trust or the Acquired Fund. The New Trust Indemnified Parties will notify the Existing Trust and the Acquired Fund in writing within ten days after the receipt by any one or more of the New Trust Indemnified Parties of any notice of legal process or any suit brought against or claim made against such New Trust Indemnified Party as to any matters covered by this Section 12(a). The Acquired Fund shall be entitled to participate at its own expense in the defense of any claim, action, suit or proceeding covered by this Section 12(a), or, if it so elects, to assume at its expense by counsel satisfactory to the New Trust Indemnified Parties the defense of any such claim, action, suit or proceeding, and if the Acquired Fund elects to assume such defense, the New Trust Indemnified Parties shall be entitled to participate in the defense of any such claim, action, suit or proceeding at their expense. The Acquired Fund's obligation under this Section 12(a) to indemnify and hold harmless the New Trust Indemnified Parties shall constitute a guarantee of payment so that the Acquired Fund will pay in the first instance any expenses, losses, claims, damages and liabilities required to be paid by it under this Section 12(a) without the necessity of the New Trust Indemnified Parties' first paying the same. -19- b. The Acquiring Fund shall indemnify and hold harmless, out of the assets of the Acquiring Fund but no other assets, the Existing Trust and the Trustees and officers of the Existing Trust (for purposes of this Section 12(b), the "Existing Trust Indemnified Parties") against any and all expenses, losses, claims, damages and liabilities at any time imposed upon or reasonably incurred by any one or more of the Existing Trust Indemnified Parties in connection with, arising out of, or resulting from any claim, action, suit or proceeding in which any one or more of the Existing Trust Indemnified Parties may be involved or with which any one or more of the Existing Trust Indemnified Parties may be threatened by reason of any breach of any representation or warranty of the Acquiring Fund contained in this Agreement or untrue statement or alleged untrue statement of a material fact (except to the extent based on or derived from the Acquired Fund Prospectus or other documents provided by the Acquired Fund) contained in the Registration Statement, the Acquiring Fund Prospectus or the Acquired Fund Proxy Statement or any amendment or supplement to any thereof, or arising out of, or based upon, the omission or alleged omission to state in any of the foregoing a material fact required to be stated therein or necessary to make the statements therein not misleading, including, without limitation, any amounts paid by any one or more of the Trust Indemnified Parties in a reasonable compromise or settlement of any such claim, action, suit or proceeding, or threatened claim, action, suit or proceeding made with the consent of the New Trust or the Acquiring Fund. The Existing Trust Indemnified Parties will notify the New Trust and the Acquiring Fund in writing within ten days after the receipt by any one or more of the Existing Trust Indemnified Parties of any notice of legal process or any suit brought against or claim made against such Trust Indemnified Party as to any matters covered by this Section 12(b). The Acquiring Fund shall be entitled to participate at its own expense in the defense of any claim, action, suit or proceeding covered by this Section 12(b), or, if it so elects, to assume at its expense by counsel satisfactory to the Existing Trust Indemnified Parties the defense of any such claim, action, suit or proceeding, and, if the Acquiring Fund elects to assume such defense, the Existing Trust Indemnified Parties shall be entitled to participate in the defense of any such claim, action, suit or proceeding at their own expense. The Acquiring Fund's obligation under this Section 12(b) to indemnify and hold harmless the Trust Indemnified Parties shall constitute a guarantee of payment so that the Acquiring Fund will pay in the first instance any expenses, losses, claims, damages and liabilities required to be paid by it under this Section 12(b) without the necessity of the Trust Indemnified Parties' first paying the same. 13. No Broker, etc. Each of the Acquired Fund and the Acquiring Fund represents that there is no person who has dealt with it or the Existing Trust or the New Trust, respectively, who, by reason of such dealings, is entitled to any broker's or finder's or other similar fee or commission payable by either the Existing Trust or the New Trust arising out of the transactions contemplated by this Agreement. 14. Termination. The Acquired Fund and the Acquiring Fund may, by mutual consent of a majority of the trustees of Existing Trust and a majority of the trustees of New Trust terminate this Agreement, and the Acquired Fund or the Acquiring Fund, after consultation with counsel and by consent of its Trustees or an officer authorized by such Trustees, may waive any condition to its respective obligations hereunder. If the transactions contemplated by this Agreement have not been substantially completed by March 31, 2008, this Agreement shall automatically terminate on that date unless a later date is agreed to by the Acquired Fund and the Acquiring Fund. -20- 15. Covenants, etc. Deemed Material. All covenants, agreements, representations and warranties made under this Agreement and any certificates delivered pursuant to this Agreement shall be deemed to have been material and relied upon by each of the parties, notwithstanding any investigation made by them or on their behalf. 16. Rule 145. Pursuant to Rule 145 under the 1933 Act, the Acquiring Fund will, in connection with the issuance of any Merger Shares to any person who at the time of the transaction contemplated hereby is deemed to be an affiliate of a party to the transaction pursuant to Rule 145(c), cause to be affixed upon the certificates issued to such person (if any) such legends as may be reasonably believed by counsel to the Acquiring Fund to be required by law and, further, the Acquiring Fund will issue stop transfer instructions to the Acquiring Fund's transfer agent with respect to such shares. The Acquired Fund will provide the Acquiring Fund on the Exchange Date with the name of any Acquired Fund shareholder who is to the knowledge of the Acquired Fund an affiliate of the Acquired Fund on such date. 17. Sole Agreement; Amendments; Governing Law. This Agreement supersedes all previous correspondence and oral communications between the parties regarding the subject matter hereof, constitutes the only understanding with respect to such subject matter, may not be changed except by a letter of agreement signed by each party hereto (except that amendments to provisions other than those in Section 5 hereof shall not require the signature of Gateway Investment Advisers, L.P.), and shall be construed in accordance with and governed by the laws of the Commonwealth of Massachusetts. 18. Waiver. At any time on or prior to the Exchange Date, the Acquired Fund or the Acquiring Fund, after consultation with counsel and by consent of its trustees or an officer authorized by such trustees, may waive any condition to its respective obligations hereunder. 19. Assignment. This Agreement shall be binding upon 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 either 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 other than the parties hereto and their respective successors and assigns any rights or remedies under or by reason of this Agreement. 20. 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 facsimile, courier or certified mail addressed to the Existing Trust at Rookwood Tower, Suite 600, 3805 Edwards Road, Cincinnati, Ohio 45209 (fax: 513-719-1199) and to the New Trust at 399 Boylston Street, 6th Floor, Boston, Massachusetts 02116 (fax: 617-449-2880). 21. Recourse. All persons dealing with the Acquiring Fund or the Acquired Fund must look solely to the property of such Fund for the enforcement of any claims against such Fund, as neither the trustees, directors, officers, agents nor shareholders of the Funds or other series of the respective Trusts assume any liability for obligations entered into on behalf of any of the Funds. -21- 22. Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. 23. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original. 24. Plan of Reorganization. The parties hereby agree that the Plan of Reorganization for the transactions contemplated hereby is as set forth on the first page of this agreement. 25. Declaration of Trust. a. A copy of the Agreement and Declaration of Trust of the New Trust is on file with the Secretary of the Commonwealth of Massachusetts, and notice is hereby given that this instrument is executed on behalf of the Trustees of the New Trust on behalf of the Acquiring Fund as trustees and not individually, and that the obligations of this instrument are not binding upon any of the trustees, officers or shareholders of the New Trust individually but are binding only upon the assets and property of the Acquiring Fund. b. It is expressly agreed that the obligations of the Acquired Fund hereunder shall not be binding upon any of the Trustees, shareholders, nominees, officers, agents or employees of the Existing Trust personally, but shall bind only the trust property of the Acquired Fund, as provided in the Agreement and Declaration of Trust of the Acquired Fund. The execution and delivery of this Agreement has been authorized by the Trustees of the Gateway Trust on behalf of the Acquired Fund and signed by an authorized officer of the Existing Trust, acting as such. Such authorization by such Trustees and such execution and delivery by such officer shall not been deemed to have been made by any of them individually or to impose any liability on any of them personally, but shall bind only the trust property of the Acquired Fund as provided in the Existing Trust's Agreement and Declaration of Trust. * * * * -22- IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed as a sealed instrument as of the day and year first above written. THE GATEWAY TRUST, on behalf of its Gateway Fund By: /s/ Walter G. Sall ------------------------------ Name: Walter G. Sall Title: Chairman GATEWAY TRUST, on behalf of its Gateway Fund By: /s/ John T. Hailer ------------------------------ Name: John T. Hailer Title: President Agreed and accepted as to Sections 5 and 9(l) only IXIS ANCHOR ACQUISITION, LLC, to be renamed GATEWAY INVESTMENT ADVISERS, LLC as of 4:01 p.m. on February 15, 2008 By: /s/ Eric N. Ward ------------------------------ Name: Eric N. Ward Title: Authorized Person [SIGNATURE PAGE TO AGREEMENT AND PLAN OF REORGANIZATION] -23- EX-99.(6)(A) 4 dex996a.txt ADVISORY AGREEMENT BETWEEN REGISTRANT AND GATEWAY INVESTMENT ADVISORS Exhibit (6)(a) GATEWAY FUND Advisory Agreement AGREEMENT made the 16th day of February, 2008, by and between THE GATEWAY TRUST, a Massachusetts business trust (the "Fund"), with respect to its Gateway Fund series (the "Series"), and Gateway Investment Advisers, LLC, a Delaware limited liability company (the "Manager"). WITNESSETH: WHEREAS, the Fund and the Manager wish to enter into an agreement setting forth the terms upon which the Manager (or certain other parties acting pursuant to delegation from the Manager) will perform certain services for the Series; NOW, THEREFORE, in consideration of the premises and covenants hereinafter contained, the parties agree as follows: 1. (a) The Fund hereby employs the Manager to furnish the Fund with Portfolio Management Services (as defined in Section 2 hereof) and Administrative Services (as defined in Section 3 hereof), subject to the authority of the Manager to delegate any or all of its responsibilities hereunder to other parties as provided in Sections 1(b) and (c) hereof. The Manager hereby accepts such employment and agrees, at its own expense, to furnish such services (either directly or pursuant to delegation to other parties as permitted by Sections 1(b) and (c) hereof) and to assume the obligations herein set forth, for the compensation herein provided; provided, however, that the Manager shall have no obligation to pay the fees of any Sub-Adviser (as defined in Section 1(b) hereof), to the extent that the Fund has agreed, under any contract to which the Fund and the Sub-Adviser are parties (a "Sub-Advisory Agreement") to pay such fees. The Manager shall, unless otherwise expressly provided or authorized, have no authority to act for or represent the Fund in any way or otherwise be deemed an agent of the Fund. (b) The Manager may delegate any or all of its responsibilities hereunder with respect to the provision of Portfolio Management Services (and assumption of related expenses) to one or more other parties (each such party, a "Sub-Adviser"), pursuant in each case to a written agreement with such Sub-Adviser that meets the requirements of Section 15 of the Investment Company Act of 1940 and the rules thereunder (the "1940 Act") applicable to contracts for service as investment adviser of a registered investment company (including without limitation the requirements for approval by the trustees of the Fund and the shareholders of the Series), subject, however, to such exemptions as may be granted by the Securities and Exchange Commission. Any Sub-Adviser may (but need not) be affiliated with the Manager. If different Sub-Advisers are engaged to provide Portfolio Management Services with respect to different segments of the portfolio of the Series, the Manager shall determine, in the manner described in the prospectus of the Series from time to time in effect, what portion of the assets belonging to the Series shall be managed by each Sub-Adviser. (c) The Manager may delegate any or all of its responsibilities hereunder with respect to the provision of Administrative Services to one or more other parties (each such party, an "Administrator") selected by the Manager. Any Administrator may (but need not) be affiliated with the Manager. 2. As used in this Agreement, "Portfolio Management Services" means management of the investment and reinvestment of the assets belonging to the Series, consisting specifically of the following: (a) obtaining and evaluating such economic, statistical and financial data and information and undertaking such additional investment research as shall be necessary or advisable for the management of the investment and reinvestment of the assets belonging to the Series in accordance with the Series' investment objectives and policies; (b) taking such steps as are necessary to implement the investment policies of the Series by purchasing and selling of securities, including the placing of orders for such purchase and sale; and (c) regularly reporting to the Board of Trustees of the Fund with respect to the implementation of the investment policies of the Series. 3. As used in this Agreement, "Administrative Services" means the provision to the Fund, by or at the expense of the Manager, of the following: (a) office space in such place or places as may be agreed upon from time to time by the Fund and the Manager, and all necessary office supplies, facilities and equipment; (b) necessary executive and other personnel for managing the affairs of the Series (exclusive of those related to and to be performed under contract for custodial, transfer, dividend and plan agency services by the entity or entities selected to perform such services and exclusive of any managerial functions described in Section 4); (c) compensation, if any, of trustees of the Fund who are directors, officers or employees of the Manager, any Sub-Adviser or any Administrator or of any affiliated person (other than a registered investment company) of the Manager, any Sub-Adviser or any Administrator; and (d) if the Manager has delegated to one or more Sub-Advisers any or all of its responsibilities hereunder with respect to the provision of Portfolio Management Services, the Manager shall continue to be responsible for the supervision and oversight of the Portfolio Management Services provided by each Sub-Adviser, and oversight of all matters relating to compliance by the Fund with applicable laws and with the Series' investment policies, restrictions and guidelines. 2 4. Nothing in section 3 hereof shall require the Manager to bear, or to reimburse the Fund for: (a) any of the costs of printing and mailing the items referred to in sub-section (n) of this section 4; (b) any of the costs of preparing, printing and distributing sales literature; (c) compensation of trustees of the Fund who are not directors, officers or employees of the Manager, any Sub-Adviser or any Administrator or of any affiliated person (other than a registered investment company) of the Manager, any Sub-Adviser or any Administrator; (d) registration, filing and other fees in connection with requirements of regulatory authorities; (e) the charges and expenses of any entity appointed by the Fund for custodial, paying agent, shareholder servicing and plan agent services; (f) charges and expenses of independent accountants retained by the Fund; (g) charges and expenses of any transfer agents and registrars appointed by the Fund; (h) brokers' commissions and issue and transfer taxes chargeable to the Fund in connection with securities transactions to which the Fund is a party; (i) taxes and fees payable by the Fund to federal, state or other governmental agencies; (j) any cost of certificates representing shares of the Fund; (k) legal fees and expenses in connection with the affairs of the Fund, including registering and qualifying its shares with Federal and State regulatory authorities; (l) expenses of meetings of shareholders and trustees of the Fund; (m) interest, including interest on borrowings by the Fund; 3 (n) the costs of services, including services of counsel, required in connection with the preparation of the Fund's registration statements and prospectuses, including amendments and revisions thereto, annual, semiannual and other periodic reports of the Fund, and notices and proxy solicitation material furnished to shareholders of the Fund or regulatory authorities; and (o) the Fund's expenses of bookkeeping, accounting, auditing and financial reporting, including related clerical expenses. 5. All activities undertaken by the Manager or any Sub-Adviser or Administrator pursuant to this Agreement shall at all times be subject to the supervision and control of the Board of Trustees of the Fund, any duly constituted committee thereof or any officer of the Fund acting pursuant to like authority. 6. The services to be provided by the Manager and any Sub-Adviser or Administrator hereunder are not to be deemed exclusive and the Manager and any Sub-Adviser or Administrator shall be free to render similar services to others, so long as its services hereunder are not impaired thereby. 7. As full compensation for all services rendered, facilities furnished and expenses borne by the Manager hereunder, the Fund shall pay the Manager compensation in an amount equal to (x) the annual rate of 0.65% of the first $5 billion and 0.60% of amounts in excess of $5 billion (or such lesser amount as the Manager may from time to time agree to receive) minus (y) any fees payable by the Fund, with respect to the period in question, to any one or more Sub-Advisers pursuant to any Sub-Advisory Agreements in effect with respect to such period. Such compensation shall be payable monthly in arrears or at such other intervals, not less frequently than quarterly, as the Board of Trustees of the Fund may from time to time determine and specify in writing to the Manager. The Manager hereby acknowledges that the Fund's obligation to pay such compensation is binding only on the assets and property belonging to the Series. 8. It is understood that any of the shareholders, trustees, officers, employees and agents of the Fund may be a shareholder, director, officer, employee or agent of, or be otherwise interested in, the Manager, any affiliated person of the Manager, any organization in which the Manager may have an interest or any organization which may have an interest in the Manager; that the Manager, any such affiliated person or any such organization may have an interest in the Fund; and that the existence of any such dual interest shall not affect the validity hereof or of any transactions hereunder except as otherwise provided in the Agreement and Declaration of Trust of the Fund, the partnership agreement of the Manager or specific provisions of applicable law. 9. This Agreement shall become effective as of the date of its execution, and (a) unless otherwise terminated, this Agreement shall continue in effect for two years from the date of execution, and from year to year thereafter so long as such continuance is specifically approved at least annually (i) by the Board of Trustees of the Fund or by vote of a majority of the outstanding voting securities of the Series, and (ii) by vote of a majority of the trustees of the Fund who are not interested persons of the Fund or the Manager, cast in person at a meeting called for the purpose of voting on, such approval; 4 (b) this Agreement may at any time be terminated on sixty days' written notice to the Manager either by vote of the Board of Trustees of the Fund or by vote of a majority of the outstanding voting securities of the Series; (c) this Agreement shall automatically terminate in the event of its assignment; (d) this Agreement may be terminated by the Manager on ninety days' written notice to the Fund; Termination of this Agreement pursuant to this Section 10 shall be without the payment of any penalty. 10. This Agreement may be amended at any time by mutual consent of the parties, provided that such consent on the part of the Fund shall have been approved by vote of a majority of the trustees of the Fund who are not interested persons of the Fund or the Manager, cast in person at a meeting called for the purpose of voting on such approval, and, to the extent required by law, by vote of a majority of the outstanding voting securities of the Series. 11. For the purpose of this Agreement, the terms "vote of a majority of the outstanding voting securities," "interested person," "affiliated person" and "assignment" shall have their respective meanings defined in the 1940 Act, subject, however, to such exemptions as may be granted by the Securities and Exchange Commission under the 1940 Act. References in this Agreement to any assets, property or liabilities "belonging to" the Series shall have the meaning defined in the Fund's Agreement and Declaration of Trust as amended from time to time. 12. In the absence of willful misfeasance, bad faith or gross negligence on the part of the Manager, or reckless disregard of its obligations and duties hereunder, the Manager shall not be subject to any liability to the Fund, to any shareholder of the Fund or to any other person, firm or organization, for any act or omission in the course of, or connected with, rendering services hereunder. 13. In accordance with Regulation S-P, if non-public personal information regarding either party's customers or consumers is disclosed to the other party in connection with this Agreement, the party receiving such information will not disclose or use that information other than as necessary to carry out the purposes of this Agreement. 5 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. THE GATEWAY TRUST on behalf of its Gateway Fund series By: /s/ Coleen Downs Dinneen ------------------------------------ Name: Coleen Downs Dinneen Title: Secretary, Clerk and Chief Legal Officer GATEWAY INVESTMENT ADVISERS, LLC By: /s/ J. Patrick Rogers ------------------------------------ Name: J. Patrick Rogers Title: President 6 NOTICE A copy of the Agreement and Declaration of Trust establishing The Gateway Trust (the "Fund") is on file with the Secretary of The Commonwealth of Massachusetts, and notice is hereby given that this Agreement is executed with respect to the Fund's Gateway Fund series (the "Series") on behalf of the Fund by officers of the Fund as officers and not individually and that the obligations of or arising out of this Agreement are not binding upon any of the trustees, officers or shareholders individually but are binding only upon the assets and property belonging to the Series. EX-99.(7)(A) 5 dex997a.txt DISTRIBUTION AGREEMENT BETWEEN THE REGISTRANT AND NATIXIS DISTRIBUTORS Exhibit (7)(a) Gateway Trust Distribution Agreement AGREEMENT made this 19/th/ day of February by and between GATEWAY TRUST, a Massachusetts business trust (the "Trust"), on behalf of GATEWAY FUND (the "Fund") and NATIXIS DISTRIBUTORS, L.P., a Delaware limited partnership (the "Distributor"). W I T N E S S E T H: NOW, THEREFORE, in consideration of the premises and covenants hereinafter contained, the Trust and the Distributor agree as follows: 1. Distributor. The Trust hereby appoints the Distributor as general distributor of shares of beneficial interest of the Fund ("Fund shares") during the term of this Agreement. The Trust reserves the right, however, to refuse at any time or times to sell any Fund shares hereunder for any reason deemed adequate by the Board of Trustees of the Trust. 2. Sale and Payment. Under this agreement, the following provisions shall apply with respect to the sale of and payment for Fund shares: (a) The Distributor shall have the right, as principal, to purchase Fund shares from the Trust at their net asset value and to sell such shares to the public against orders therefor at the applicable public offering price, as defined in Section 3 hereof. The Distributor shall also have the right, as principal, to sell shares to dealers against orders therefor at the public offering price less a concession determined by the Distributor. (b) Prior to the time of delivery of any shares by the Trust to, or on the order of, the Distributor, the Distributor shall pay or cause to be paid to the Trust or to its order an amount in Boston or New York clearing house funds equal to the applicable net asset value of such shares. The Distributor shall retain so much of any sales charge or underwriting discount as is not allowed by it as a concession to dealers. 3. Public Offering Price. The public offering price shall be the net asset value of Fund shares, plus any applicable sales charge, all as set forth in the current prospectus and statement of additional information ("prospectus") of the Trust relating to the Fund shares. In no event shall the public offering price exceed 1000/935 of such net asset value, and in no event shall any applicable sales charge or underwriting discount exceed 6.5% of the public offering price. The net asset value of Fund shares shall be determined in accordance with the provisions of the agreement and declaration of trust and by-laws of the Trust and the current prospectus of the Trust relating to the Fund shares. 4. Trust Issuance of Fund Shares. The delivery of Fund shares shall be made promptly by a credit to a shareholder's open account for the Fund or by delivery of a share certificate. The Trust reserves the right (a) to issue Fund shares at any time directly to the shareholders of the Fund as a stock dividend or stock split, (b) to issue to such shareholders shares of the Fund, or rights to subscribe to shares of the Fund, as all or part of any dividend that may be distributed to shareholders of the Fund or as all or part of any optional or alternative dividend that may be distributed to shareholders of the Fund, and (c) to sell Fund shares in accordance with the current applicable prospectus of the Trust relating to the Fund shares. 5. Redemption or Repurchase. The Distributor shall act as agent for the Trust in connection with the redemption or repurchase of Fund shares by the Trust to the extent and upon the terms and conditions set forth in the current applicable prospectus of the Trust relating to the Fund shares, and the Trust agrees to reimburse the Distributor, from time to time upon demand, for any reasonable expenses incurred in connection with such redemptions or repurchases. 6. Undertaking Regarding Sales. The Distributor shall use reasonable efforts to sell Fund shares but does not agree hereby to sell any specific number of Fund shares and shall be free to act as distributor of the shares of other investment companies. Fund shares will be sold by the Distributor only against orders therefor. The Distributor shall not purchase Fund shares from anyone except in accordance with Sections 2 and 5 and shall not take "long" or "short" positions in Fund shares contrary to the agreement and declaration of trust or by-laws of the Trust. 7. Compliance. The Distributor shall conform to the Conduct Rules of the Financial Industry Regulatory Authority ("FINRA") and the sale of securities laws of any jurisdiction in which it sells, directly or indirectly, any Fund shares. The Distributor agrees to make timely filings, with the Securities and Exchange Commission in Washington, D.C. (the "SEC"), the FINRA and such other regulatory authorities as may be required, of any sales literature relating to the Fund and intended for distribution to prospective investors. The Distributor also agrees to furnish to the Trust sufficient copies of any agreements or plans it intends to use in connection with any sales of Fund shares in adequate time for the Trust to file and clear them with the proper authorities before they are put in use (which the Trust agrees to use its best efforts to do as expeditiously as reasonably possible), and not to use them until so filed and cleared. 8. Registration and Qualification of Fund Shares. The Trust agrees to execute such papers and to do such acts and things as shall from time to time be reasonably requested by the Distributor for the purpose of qualifying and maintaining qualification of the Fund shares for sale under the so-called Blue Sky Laws of any state or for maintaining the registration of the Trust and of the Fund shares under the federal Securities Act of 1933 and the federal Investment Company Act of 1940 (the "1940 Act"), to the end that there will be available for sale from time to time such number of Fund shares as the Distributor may reasonably be expected to sell. The Trust shall advise the Distributor promptly of (a) any action of the SEC or any authorities of any state or territory, of which it may be advised, affecting registration or qualification of the Trust or the Fund shares, or rights to offer Fund shares for sale, and (b) the happening of any event which makes untrue any statement or which requires the making of any change in the Trust's registration statement or its prospectus relating to the Fund shares in order to make the statements therein not misleading. 9. Distributor Independent Contractor. The Distributor shall be an independent contractor and neither the Distributor nor any of its officers or employees as such is or shall be an employee of the Trust. The Distributor is responsible for its own conduct and the employment, control and conduct of its agents and employees and for injury to such agents or employees or to others through its agents or employees. The Distributor assumes full responsibility for its agents and employees under applicable statutes and agrees to pay all employer taxes thereunder. 10.Expenses Paid by Distributor. While the Distributor continues to act as agent of the Trust to obtain subscriptions for and to sell Fund shares, the Distributor shall pay the following: (a) all expenses of printing (exclusive of typesetting) and distributing any prospectus for use in offering Fund shares for sale, and all other copies of any such prospectus used by the Distributor, and (b) all other expenses of advertising and of preparing, printing and distributing all other literature or material for use in connection with offering Fund shares for sale. 11.Interests in and of Distributor. It is understood that any of the shareholders, trustees, officers, employees and agents of the Trust may be a shareholder, director, officer, employee or agent of, or be otherwise interested in, the Distributor, any affiliated person of the Distributor, any organization in which the Distributor may have an interest or any organization which may have an interest in the Distributor; that the Distributor, any such affiliated person or any such organization may have an interest in the Trust; and that the existence of any such dual interest shall not affect the validity hereof or of any transaction hereunder except as otherwise provided in the agreement and declaration of trust or by-laws of the Trust, in the limited partnership agreement of the Distributor or by specific provision of applicable law. -2- 12.Effective Date and Termination. This Agreement shall become effective as of the date of its execution, and (a) Unless otherwise terminated, this Agreement shall continue in effect with respect to the shares of the Fund so long as such continuation is specifically approved at least annually (i) by the Board of Trustees of the Trust or by the vote of a majority of the votes which may be cast by shareholders of the Fund and (ii) by a vote of a majority of the Board of Trustees of the Trust who are not interested persons of the Distributor or the Trust, cast in person at a meeting called for the purpose of voting on such approval. (b) This Agreement may at any time be terminated on sixty days' notice to the Distributor either by vote of a majority of the Trust's Board of Trustees then in office or by the vote of a majority of the votes which may be cast by shareholders of the Fund. (c) This Agreement shall automatically terminate in the event of its assignment. (d) This Agreement may be terminated by the Distributor on ninety days' written notice to the Trust. Termination of this Agreement pursuant to this section shall be without payment of any penalty. 13.Definitions. For purposes of this Agreement, the following definitions shall apply: (a) The "vote of a majority of the votes which may be cast by shareholders of the Fund" means (1) 67% or more of the votes of the Fund present (in person or by proxy) and entitled to vote at such meeting, if the holders of more than 50% of the outstanding shares of the Fund entitled to vote at such meeting are present; or (2) the vote of the holders of more than 50% of the outstanding shares of the Fund entitled to vote at such meeting, whichever is less. (b) The terms "affiliated person," "interested person" and "assignment" shall have their respective meanings as defined in the 1940 Act subject, however, to such exemptions as may be granted by the SEC under the 1940 Act. 14.Amendment. This Agreement may be amended at any time by mutual consent of the parties, provided that such consent on the part of the Fund shall be approved (i) by the Board of Trustees of the Trust or by vote of a majority of the votes which may be cast by shareholders of the Fund and (ii) by a vote of a majority of the Board of Trustees of the Trust who are not interested persons of the Distributor or the Trust cast in person at a meeting called for the purpose of voting on such approval. 15.Applicable Law and Liabilities. This Agreement shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts. All sales hereunder are to be made, and title to the Fund shares shall pass, in Boston, Massachusetts. 16.Limited Recourse. The Distributor hereby acknowledges that the Trust's obligations hereunder with respect to the shares of the Fund are binding only on the assets and property belonging to the Fund. 17.Privacy. In accordance with Regulation S-P, if non-public personal information regarding either party's customers or consumers is disclosed to the other party in connection with this Agreement, the party receiving such information will not disclose or use that information other than as necessary to carry out the purposes of this Agreement. -3- 18.Anti-Money Laundering. Each party to this agreement hereby agrees to abide by and comply with all relevant anti-money laundering laws and regulations, including without limitation the Bank Secrecy Act, as amended, and the USA Patriot Act of 2001. Each party represents that it has established an Anti-Money Laundering Program that complies with all material aspects of the USA Patriot Act of 2001 and other applicable anti-money laundering laws and regulations. Each party also hereby agrees to comply with any new or additional anti-money laundering laws or regulations. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. GATEWAY TRUST, on behalf of GATEWAY FUND By: /s/ John T. Hailer ------------------------------------ Name: John T. Hailer Title: President and Chief Executive Officer NATIXIS DISTRIBUTORS, L.P. By: Natixis Distribution Corporation, its general partner By: /s/ John T. Hailer ------------------------------------ Name: John T. Hailer Title: President and Chief Executive Officer -4- A copy of the Agreement and Declaration of Trust establishing Gateway Trust (the "Trust") is on file with the Secretary of The Commonwealth of Massachusetts, and notice is hereby given that this Agreement is executed with respect to the Fund on behalf of the Trust by officers of the Trust as officers and not individually and that the obligations of or arising out of this Agreement are not binding upon any of the trustees, officers or shareholders of the Trust individually but are binding only upon the assets and property of the Fund. -5- EX-99.(9)(C) 6 dex999c.txt LETTER AGREEMENT AMENDING THE MASTER CUSTODIAN AGREEMENT Exhibit (9)(c) February 15, 2008 State Street Bank and Trust Company Lafayette Corporate Center 2 Avenue de Lafayette Boston, MA 02111 Attention: Jeffrey Mihalchik, Vice President Re:Gateway Trust (the "Fund") Ladies and Gentlemen: Please be advised that the undersigned Fund has been incorporated and registered as a management investment company under the Investment Company Act of 1940, as amended. In accordance with Section 18.6, the Additional Funds provision, of the Master Custodian Agreement dated as of September 1, 2005 by and among each management investment company party thereto and State Street Bank and Trust Company (the "Agreement"), the undersigned Fund hereby requests that your bank act as Custodian for the Fund under the terms of the Agreement. In addition, in accordance with Section 18.7, the Additional Portfolios provision, of the Agreement, the undersigned Fund hereby requests that your bank act as Custodian with respect to a series of shares established by the Fund and known as the Gateway Fund, under the terms of the Agreement. In connection with such requests, the undersigned Fund hereby confirms to you, as of the date hereof, its representations and warranties set forth in Section 18.4 of the Agreement. Kindly indicate your acceptance of the foregoing by executing two copies of this letter agreement, returning one to the Fund and retaining one for your records. Sincerely, GATEWAY TRUST on behalf of itself and: GATEWAY FUND By: /s/ Michael Kardok ------------------------------------ Name: Michael Kardok Title: Treasurer Duly Authorized Agreed and Accepted: STATE STREET BANK AND TRUSTCOMPANY By: /s/ Joseph L. Hooley ------------------------------------ Name: Joseph L. Hooley Title: Vice Chairman Effective Date: February 15, 2008 EX-99.(12) 7 dex9912.txt OPINION AND CONSENT OF ROPES &GRAY LLP Exhibit (12) [LOGO] ROPES & GRAY LLP ONE INTERNATIONAL PLACE BOSTON, MA 02110-2624 617-951-7000 F 617-951-7050 BOSTON NEW YORK PALO ALTO SAN FRANCISCO WASHINGTON, DC www.ropesgray.com
February 15, 2008 Gateway Fund The Gateway Trust Rookwood Tower, Suite 600, 3805 Edwards Road, Cincinnati, Ohio 45209 Gateway Fund Gateway Trust 399 Boylston Street Boston, Massachusetts 02116 Ladies and Gentlemen: We have acted as counsel in connection with the Agreement and Plan of Reorganization (the "Agreement") dated February 13, 2008 between Gateway Fund (the "Fund"), a series of The Gateway Trust, an Ohio business trust (the "Trust") and Gateway Fund (the "New Fund"), a series of Gateway Trust, a Massachusetts business trust (the "New Trust"). The Agreement describes a proposed transaction (the "Transaction") to occur as of the date of this letter (the "Closing Date"), pursuant to which New Fund will acquire substantially all of the assets of Fund in exchange for shares of beneficial interest in New Fund (the "New Fund Shares") and the assumption by New Fund of all of the liabilities of Fund following which the New Fund Shares received by Fund will be distributed by Fund to its shareholders in liquidation and termination of Fund. This opinion as to certain U.S. federal income tax consequences of the Transaction is furnished to you pursuant to Sections 8(e) and 9(f) of the Agreement. Capitalized terms not defined herein are used herein as defined in the Agreement. Fund is a series of Trust, which is registered under the Investment Company Act of 1940, as amended (the "1940 Act"), as an open-end management investment company. Shares of Fund are redeemable at net asset value at each shareholder's option. Fund has elected to be a regulated investment company for federal income tax purposes under Section 851 of the Internal Revenue Code of 1986, as amended (the "Code"). New Fund is a series of the New Trust, which is registered under the 1940 Act as an open-end management investment company. Shares of New Fund are redeemable at net asset value at each shareholder's option. Gateway Fund February 15, 2008 For purposes of this opinion, we have considered the Agreement, the Combined Prospectus/Proxy Statement filed pursuant to Rule 497 under the Securities Act of 1933, as amended, on November 30, 2007, and such other items as we have deemed necessary to render this opinion. In addition, you have provided us with letters dated as of the date hereof, representing as to certain facts, occurrences and information upon which you have indicated that we may rely in rendering this opinion (whether or not contained or reflected in the documents and items referred to above). Based on the foregoing representations and assumption and our review of the documents and items referred to above, we are of the opinion that generally, subject to the final paragraph hereof, for U.S. federal income tax purposes: (i) The Transaction will constitute a reorganization within the meaning of Section 368(a) of the Code, and New Fund and Fund each will be a "party to a reorganization" within the meaning of Section 368(b) of the Code; (ii) Under Section 1032 of the Code, no gain or loss will be recognized by New Fund upon the receipt of the assets of Fund in exchange for New Fund Shares and the assumption by New Fund of the liabilities of Fund; (iii) Under Section 362(b) of the Code, the basis in the hands of New Fund of the assets of Fund transferred to New Fund in the Transaction will be the same as the basis of such assets in the hands of Fund immediately prior to the transfer; (iv) Under Section 1223(2) of the Code, the holding periods of the assets of Fund in the hands of New Fund will include the respective periods during which such assets were held by Fund; (v) Under Section 361 of the Code, no gain or loss will be recognized by Fund upon the transfer of Fund's assets to New Fund in exchange for New Fund Shares and the assumption by New Fund of the liabilities of Fund, or upon the distribution of New Fund Shares by Fund to its shareholders in liquidation; (vi) Under Section 354 of the Code, no gain or loss will be recognized by Fund shareholders upon the exchange of their Fund shares for New Fund Shares; (vii) Under Section 358 of the Code, the aggregate tax basis of New Fund Shares a Fund shareholder receives in connection with the Transaction will be the same as the aggregate tax basis of his or her Fund shares exchanged therefor; (viii) Under Section 1223(1) of the Code, a Fund shareholder's holding period for his or her New Fund Shares will be determined by including the period for which he or she held the Fund shares exchanged therefor, provided that he or she held such Fund shares as capital assets; and (ix) New Fund will succeed to and take into account the items of 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. [Rest of page intentionally left blank.] Gateway Fund February 15, 2008 Our opinion is based on the Internal Revenue Code of 1986, as amended, Treasury Regulations, Internal Revenue Service rulings, judicial decisions, and other applicable authority, all as in effect on the date of this opinion. The legal authorities on which this opinion is based may be changed at any time. Any such changes may be retroactively applied and could modify the opinions expressed above. Very truly yours, /s/ Ropes & Gray LLP Ropes & Gray LLP 3 EX-99.(13)(C) 8 dex9913c.txt GATEWAY INVESTMENT ADVISORS,LLC FEE WAIVER/EXPENSE REIMBURSEMENT AGREEMENT Exhibit (13)(c) February 18, 2008 The Gateway Trust 399 Boylston Street Boston, MA 02116 Re:Fee Waiver/Expense Reimbursement Ladies and Gentlemen: Gateway Investment Advisers, LLC ("Gateway") notifies you that it will reduce its management fee and if necessary, bear certain expenses of the Gateway Fund (the "Fund") through April 30, 2010 to the extent that the total annual fund operating expenses of each class of the Fund, exclusive of brokerage, interest, taxes and extraordinary expenses (such as litigation and indemnification, expenses), would exceed the following annual rate: Name of Fund Expense Cap ------------ ------------------------ Gateway Fund 0.94% for Class A shares 1.70% for Class C shares 0.70% for Class Y shares With respect to the Fund, subject to applicable legal requirements, Gateway shall be permitted to recover, on a class by class basis, management fees reduced and/or any expenses, except operating expenses that have been waived by Natixis Asset Management Advisors, L.P. under the Administrative Services Fee Waiver, it has borne subsequent to the effective date of this Letter Agreement in later periods to the extent that a class' total annual fund operating expenses fall below the annual rates set forth above; provided, however, that Gateway is not entitled to recover any such reduced fees and expenses with respect to a class more than one year after the end of the fiscal year in which the fee/expense was incurred. For purposes of determining any such waiver or expense reimbursement, expenses of the class of the Fund shall not reflect the application of balance credits made available by the Fund's custodian or arrangements under which broker-dealers that execute portfolio transactions for the Fund agree to bear some portion of Fund expenses. We understand and intend that you will rely on this undertaking in preparing and filing the Registration Statement on Form N-1A for the Fund with the Securities and Exchange Commission, in accruing the Fund's expenses for purposes of calculating its net asset value per share, and for other purposes permitted under Form N-1A and/or the Investment Company Act of 1940, as amended, and expressly permit you to do so. Gateway Investment Advisers, LLC By: /s/ J. Patrick Rogers ------------------------------ Name: J. Patrick Rogers Title: President 1 EX-99.(13)(I) 9 dex9913i.txt FIFTH AMENDMENT TO ADMINISTRATIVE SERVICES AGREEMENT Exhibit (13)(i) FIFTH AMENDMENT TO ADMINISTRATIVE SERVICES AGREEMENT This Amendment made as of February 1, 2008, by and between Natixis Asset Management Advisors, L.P. ("Natixis Advisors") (formerly, IXIS Asset Management Advisors, L.P.), Natixis Funds Trust I, Natixis Funds Trust II , Natixis Funds Trust III, Natixis Funds Trust IV, Natixis Cash Management Trust, Loomis Sayles Funds I, Loomis Sayles Funds II and Hansberger International Series (collectively, the "Trusts"). WHEREAS, Natixis Advisors and the Trusts are parties to an Administrative Services Agreement dated January 3, 2005, (the "Agreement"), governing the terms and conditions under which Natixis Advisors provides certain administrative services to the series of the Trusts; and WHEREAS, Natixis Advisors and the Trusts desire to amend Schedule A of the Agreement to reflect changes in Trust Portfolios; NOW THEREFORE, in consideration of the premises and covenants contained herein, Natixis Advisors and the Trusts hereby agree as follows: 1. Schedule A of the Agreement is deleted in its entirety and replaced with Schedule A attached hereto. 2. Except as specifically superseded or modified herein, the terms and provisions of the Agreement shall continue to apply with full force and effect. 3. This Amendment may be executed in one or more counter parts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] 1 IN WITNESS WHEREOF, each of the parties has caused this instrument to be executed as a sealed instrument in its name and behalf by its duly authorized representative as of the date first above written. NATIXIS ASSET MANAGEMENT ADVISORS, L.P. By Natixis Distribution Corporation, its general partner By: /s/ John T. Hailer ----------------------------------------------------- John T. Hailer, President and Chief Executive Officer NATIXIS FUNDS TRUST I NATIXIS FUNDS TRUST II NATIXIS FUNDS TRUST III NATIXIS FUNDS TRUST IV NATIXIS CASH MANAGEMENT TRUST LOOMIS SAYLES FUNDS II HANSBERGER INTERNATIONAL SERIES By: /s/ John T. Hailer -------------------------- John T. Hailer, President LOOMIS SAYLES FUNDS I By: /s/ John T. Hailer -------------------------- John T. Hailer, Executive Vice President 2 Schedule A Trust Portfolios As of: February 1, 2008 Natixis Funds Trust I CGM Advisor Targeted Equity Fund Hansberger International Fund Natixis Income Diversified Portfolio Natixis U.S. Diversified Portfolio Loomis Sayles Core Plus Bond Fund Vaughan Nelson Small Cap Value Fund Westpeak 130/30 Growth Fund Natixis Funds Trust II Harris Associates Large Cap Value Fund Loomis Sayles Massachusetts Tax Free Income Fund Natixis Funds Trust III Harris Associates Focused Value Fund Natixis Moderate Diversified Portfolio Natixis Funds Trust IV AEW Real Estate Fund Natixis Cash Management Trust Natixis Cash Management Trust - Money Market Series Loomis Sayles Funds I Loomis Sayles Bond Fund Loomis Sayles Fixed Income Fund Loomis Sayles Global Bond Fund Loomis Sayles High Income Opportunities Fund* Loomis Sayles Inflation Protected Securities Fund Loomis Sayles Institutional High Income Fund Loomis Sayles Intermediate Duration Fixed Income Fund Loomis Sayles Investment Grade Fixed Income Fund Loomis Sayles Securitized Asset Fund* Loomis Sayles Small Cap Value Fund * With respect to these Funds only, paragraph 3 of the Agreement is revised to provide that Natixis Advisors shall be entitled to reasonable compensation for its services and expenses as Administrator, but Loomis, Sayles & Company, L.P. ("Loomis Sayles), the adviser to the Funds, and not Loomis Sayles Funds I, shall be responsible for payment of such compensation and expenses relating to the Funds, as agreed upon by Loomis Sayles in separate Letter Agreements dated January 3, 2005 and July 1, 2005, respectively. 3 Loomis Sayles Funds II Loomis Sayles Mid Cap Growth Fund Loomis Sayles Growth Fund Loomis Sayles High Income Fund Loomis Sayles Investment Grade Bond Fund Loomis Sayles International Bond Fund Loomis Sayles Limited Term Government and Agency Fund Loomis Sayles Municipal Income Fund Loomis Sayles Research Fund Loomis Sayles Small Cap Growth Fund Loomis Sayles Strategic Income Fund Loomis Sayles Tax-Managed Equity Fund Loomis Sayles Value Fund Loomis Sayles Global Markets Fund Hansberger International Series Hansberger Emerging Markets Fund Hansberger International Value Fund Hansberger International Growth Fund Hansberger International Core Fund Hansberger All Countries Fund (not operational) 4 EX-99.(13)(J) 10 dex9913j.txt SIXTH AMENDMENT TO ADMINISTRATIVE SERVICES AGREEMENT Exhibit (13)(j) SIXTH AMENDMENT TO ADMINISTRATIVE SERVICES AGREEMENT This Amendment made as of February 19, 2008, by and between Natixis Asset Management Advisors, L.P. ("Natixis Advisors") (formerly IXIS Asset Management Advisors, L.P.) and Gateway Trust, a Massachusetts business trust (the "Gateway Trust"). WHEREAS, Natixis Advisors and Natixis Funds Trust I, Natixis Funds Trust II, Natixis Funds Trust III, Natixis Funds Trust IV, Natixis Cash Management Trust, Loomis Sayles Funds I, Loomis Sayles Funds II and Hansberger International Series (collectively, the "Trusts") are parties to an Administrative Services Agreement dated January 3, 2005, as amended November 1, 2005, January 1, 2006, July 1, 2007, September 17, 2007 and February 1, 2008 (together with the amendments, the "Agreement"), governing the terms and conditions under which Natixis Advisors provides certain administrative services to the series of the Trusts; and WHEREAS, the Gateway Trust is registered as an open-end management investment company under the Investment Company Act of 1940, as amended (the "1940 Act"); and WHEREAS, the Gateway Trust desires to employ Natixis Advisors to provide certain administrative services to the Gateway Trust in the manner and on the terms set forth in the Agreement and Natixis Advisors wishes to perform such services; and WHEREAS, Natixis Advisors and the Gateway Trust desire to amend Schedule A of the Agreement to reflect the addition of the Gateway Trust; NOW THEREFORE, in consideration of the premises and covenants contained herein, Natixis Advisors and the Gateway Trust hereby agree as follows: 1. Schedule A of the Agreement is deleted in its entirety and replaced with Schedule A attached hereto. 2. Except as specifically superseded or modified herein, the terms and provisions of the Agreement shall continue to apply with full force and effect. 3. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] 1 IN WITNESS WHEREOF, each of the parties has caused this instrument to be executed as a sealed instrument in its name and behalf by its duly authorized representative as of the date first above written. NATIXIS ASSET MANAGEMENT ADVISORS,L.P. By Natixis Distribution Corporation, its generalpartner By: /s/ John T. Hailer ------------------------------------ John T. Hailer, President and Chief Executive Officer GATEWAY TRUST By: /s/ John T. Hailer ------------------------------------ John T. Hailer, President 2 Schedule A Trust Portfolios As of: February 19, 2008 Natixis Funds Trust I CGM Advisor Targeted Equity Fund Hansberger International Fund Natixis Income Diversified Portfolio Natixis U.S. Diversified Portfolio Loomis Sayles Core Plus Bond Fund Vaughan Nelson Small Cap Value Fund Westpeak 130/30 Growth Fund Natixis Funds Trust II Harris Associates Large Cap Value Fund Loomis Sayles Massachusetts Tax Free Income Fund Natixis Funds Trust III Harris Associates Focused Value Fund Natixis Moderate Diversified Portfolio Natixis Funds Trust IV AEW Real Estate Fund Natixis Cash Management Trust Natixis Cash Management Trust - Money Market Series Loomis Sayles Funds I Loomis Sayles Bond Fund Loomis Sayles Fixed Income Fund Loomis Sayles Global Bond Fund Loomis Sayles High Income Opportunities Fund* Loomis Sayles Inflation Protected Securities Fund Loomis Sayles Institutional High Income Fund Loomis Sayles Intermediate Duration Fixed Income Fund Loomis Sayles Investment Grade Fixed Income Fund Loomis Sayles Securitized Asset Fund* Loomis Sayles Small Cap Value Fund * With respect to these Funds only, paragraph 3 of the Agreement is revised to provide that Natixis Advisors shall be entitled to reasonable compensation for its services and expenses as Administrator, but Loomis, Sayles & Company, L.P. ("Loomis Sayles), the adviser to the Funds, and not Loomis Sayles Funds I, shall be responsible for payment of such compensation and expenses relating to the Funds, as agreed upon by Loomis Sayles in separate Letter Agreements dated January 3, 2005 and July 1, 2005, respectively. 3 Loomis Sayles Funds II Loomis Sayles Mid Cap Growth Fund Loomis Sayles Growth Fund Loomis Sayles High Income Fund Loomis Sayles Investment Grade Bond Fund Loomis Sayles International Bond Fund Loomis Sayles Limited Term Government and Agency Fund Loomis Sayles Municipal Income Fund Loomis Sayles Research Fund Loomis Sayles Small Cap Growth Fund Loomis Sayles Strategic Income Fund Loomis Sayles Tax-Managed Equity Fund Loomis Sayles Value Fund Loomis Sayles Global Markets Fund Hansberger International Series Hansberger Emerging Markets Fund Hansberger International Value Fund Hansberger International Growth Fund Hansberger International Core Fund Hansberger All Countries Fund (not operational) Gateway Trust Gateway Fund 4 EX-99.(13)(K) 11 dex9913k.txt NATIXIS ADMINISTRATIVE SERVICES FEE WAIVER DATED OCTOBER 1, 2007 Exhibit (13)(k) October 1, 2007 Natixis Funds Trust I Natixis Funds Trust II Natixis Funds Trust III Natixis Funds Trust IV Natixis Cash Management Trust Loomis Sayles Funds I Loomis Sayles Funds II Hansberger International Series Gateway Trust/1/ (collectively, the "Funds") 399 Boylston Street Boston, MA 02116 Re: Administrative Services Fee Waiver Ladies and Gentlemen: Natixis Asset Management Advisors, L.P. ("Natixis Advisors") notifies you that it will waive its administrative services fees to be received from the Funds through June 30, 2008, by the amount of the cost savings achieved by Natixis Advisors in implementing a revised fee schedule for sub-administration services. Specifically, Natixis Advisors will waive administrative services fees each month through June 30, 2008 equivalent to the difference for such month, in dollars, between (a) the fees Natixis Advisors would have paid State Street Bank and Trust ("State Street") for sub-administrative services under the fee schedule to the Sub-Administration Agreement dated September 1, 2005, as amended January 1, 2006, and (b) the fees Natixis Advisors will pay State Street for sub-administrative services under the fee schedule to the Sub-Administration Agreement dated October 1, 2007. We understand that we will not have the ability in later periods to recover fees waived pursuant to this arrangement. During the period covered by this Letter Agreement, the fee waiver arrangement set forth above for the Funds may only be modified by a majority vote of the "non-interested" Trustees of the Funds. We understand and intend that you will rely on this undertaking in preparing and filing the Registration Statements on Form N-1A for the Funds with the Securities and Exchange Commission, in accruing each Fund's expenses for purposes of calculating the net asset value per share of each Fund's series, and for other purposes permitted under Form N-1A and/or the Investment Company Act of 1940, as amended, and expressly permit you to do so. - -------- /1/ For purposes of the Gateway Trust, this waiver shall be effective upon commencement of operations (expected to be February 19, 2008) through June 30, 2008. Natixis Asset Management Advisors, L.P. By:Natixis Distribution Corporation, its generalpartner By: John T. Hailer ------------------------------ Name: John T. Hailer Title: President and Chief Executive Officer 1 EX-99.(13)(L) 12 dex9913l.txt NATIXIS ADMINISTRATIVE SERVICES FEE WAIVER DATED FEBRUARY 18, 2008 Exhibit (13)(l) [LOGO ] February 18, 2008 Gateway Trust 399 Boylston Street Boston, MA 02116 Re:Administrative Services Fee Waiver Ladies and Gentlemen: Natixis Asset Management Advisors, L.P. ("Natixis") notifies you that it will waive its administrative services fees to be received from the Gateway Fund (the "Fund") for two years following the closing date of the reorganization of the Gateway Fund, a series of Gateway Trust, an Ohio business trust, with and into the Fund, a series of the Gateway Trust, a Massachusetts business trust, to the extent that the annual administrative services fees of the Fund exceed $300,000 plus any sub-administration expense attributable to the Fund. During the period covered by this Letter Agreement, the expense cap arrangement set forth above for the Fund may only be modified by a majority vote of the "non-interested" Trustees of the Fund's Trust. We understand and intend that you will rely on this undertaking in preparing and filing the Registration Statement on Form N-1A for the Fund with the Securities and Exchange Commission, in accruing the Fund's expenses for purposes of calculating its net asset value per share, and for other purposes permitted under Form N-1A and/or the Investment Company Act of 1940, as amended, and expressly permit you to do so. Natixis Asset Management Advisors, L.P. By Natixis Distribution Corporation, its generalpartner By: /s/ Coleen Downs Dinneen ------------------------------ Coleen Downs Dinneen Title: Senior Vice President, General Counsel, Secretary & Clerk 1 EX-99.(13)(M) 13 dex9913m.txt DELEGATION AGREEMENT BETWEEN GATEWAY AND NATIXIS Exhibit (13)(m) GATEWAY FUND DELEGATION AGREEMENT AGREEMENT made the 16th day of February, 2008, by and between Gateway Investment Advisers, LLC, a Delaware limited liability company (the "Manager"), and Natixis Asset Management Advisors, L.P., a Delaware limited partnership (the "Administrator"). WITNESSETH: WHEREAS, Gateway Investment Advisers, LLC (the "Manager") has entered into an Advisory Agreement dated February 16, 2008 (the "Advisory Agreement") with the Gateway Trust, a Massachusetts business trust (the "Fund"), relating to the provision of portfolio management services to the Gateway Fund (the "Series"); WHEREAS, pursuant to the Advisory Agreement the Manager may delegate any or all of its responsibilities thereunder with respect to the provision of Administrative Services (as defined in the Advisory Agreement); and WHEREAS, the Manager desires to retain the Administrator to render such Administrative Services in the manner and on the terms set forth in this Agreement. NOW, THEREFORE, in consideration of the premises and covenants hereinafter contained, the parties agree as follows: (1) Administrative Services. The Administrator shall provide the Series the following services: (a) office space in such place or places as may be agreed upon from time to time by the Fund and the Manager, and all necessary office supplies, facilities and equipment; (b) necessary executive and other personnel for managing the affairs of the Series (exclusive of those related to and to be performed under contract for custodial, transfer, dividend and plan agency services by the entity or entities selected to perform such services and exclusive of any managerial functions described in the Advisory Agreement); and (c) compensation, if any, of trustees of the Fund who are directors, officers or employees of the Manager, any sub-adviser or any administrator or of any affiliated person (other than a registered investment company) of the Manager, any Sub-Adviser or any administrator. (2) Expenses. Except for expenses specifically assumed or agreed to be paid by the Administrator pursuant hereto, the Administrator shall not be liable for any organizational, operational or business expenses of the Fund including, without limitation, (a) interest and taxes, (b) brokerage commissions and other costs in connection 1 with the purchase or sale of securities or other investment instruments with respect to the Series, and (c) custodian fees and expenses. The Administrator will pay its own expenses incurred in furnishing the services to be provided by it pursuant to this Agreement. Neither the Administrator nor any affiliated person thereof shall be entitled to any compensation from the Fund with respect to service by any affiliated person of the Administrator as an officer or trustee of the Fund. (3) Compensation of the Administrator. The parties acknowledge that the Administrator shall receive no compensation for the services rendered, facilities furnished and expenses borne by the Administrator hereunder; provided, however, the parties acknoweldge that the Administrator shall be compensated under the Administrative Services Agreement, dated as of January 3, 2005, as from time to time amended, by and between the Administrator (formerly IXIS Asset Management Advisors, L.P.) and Natixis Funds Trust I, Natixis Funds Trust II, Natixis Funds Trust III, Natixis Funds Trust IV, Natixis Cash Management Trust, Loomis Sayles Funds I, Loomis Sayles Funds II, Hansberger International Series, and the Fund. (4) Non-Exclusivity. The Manager agrees that the services of the Administrator are not to be deemed exclusive and that the Administrator and its affiliates are free to provide similar services and other services to others, so long as its services hereunder are not impaired thereby. (5) Liability. In the absence of willful misfeasance, bad faith or gross negligence on the part of the Administrator, or reckless disregard of its obligations and duties hereunder, the Administrator shall not be subject to any liability to the Manager, the Fund, the Series, to any shareholder of the Series or to any other person, firm or organization, for any act or omission in the course of, or connected with, rendering services hereunder. (6) Effective Date and Termination. This Agreement shall become effective as of the date of its execution, and (a) unless otherwise terminated, this Agreement shall become effective as of the date first above written and shall continue in effect for two years from the date of execution, and from year to year thereafter so long as such continuance is specifically approved at least annually by the Board of Trustees of the Fund; (b) this Agreement may be terminated at any time without the payment of any penalty by either party on not less than sixty (60) days' written notice to the other party; (c) this Agreement shall automatically terminate in the event of its assignment; and (d) this Agreement shall automatically terminate upon any termination of the Advisory Agreement. Termination of this Agreement pursuant to this Section 6 shall be without the payment of any penalty. 2 (7)General. (a)The Administrator may perform its services through any employee, officer or agent of the Administrator or its affiliates. (b)If any term or provision of this Agreement or the application thereof to any person or circumstances is held to be invalid or unenforceable to any extent, the remainder of this Agreement or the application of such provision to other persons or circumstances shall not be affected thereby and shall be enforced to the fullest extent permitted by law. (c)In accordance with Regulation S-P, if non-public personal information regarding either party's customers or consumers is disclosed to the other party in connection with this Agreement, the party receiving such information will not disclose or use that information other than as necessary to carry out the purposes of this Agreement. (d)This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts. NATIXIS ASSET MANAGEMENT ADVISORS,L.P. By: Natixis Distribution Corporation, its generalpartner By: /s/ Coleen Downs Dinneen ------------------------------------ Name: Coleen Downs Dinneen Title: Senior Vice President, General Counsel, Secretary and Clerk GATEWAY INVESTMENT ADVISERS, LLC By: /s/ J. Patrick Rogers ------------------------------------ Name: J. Patrick Rogers Title: President 3 -----END PRIVACY-ENHANCED MESSAGE-----