<PAGE>
As filed with the Securities and Exchange Commission on March 29, 2000
Registration Nos. 2-92665; 811-4088
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-1A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 [X]
Post-Effective Amendment No. 37 [X]
and
REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY
ACT OF 1940 [X]
Amendment No. 39 [X]
Excelsior Funds, Inc.
(Exact Name of Registrant as Specified in Charter)
73 Tremont Street
Boston, Massachusetts 02108-3913
(Address of Principal Executive Offices)
Registrant's Telephone Number: (800) 446-1012
W. Bruce McConnel, III
Drinker Biddle & Reath LLP
One Logan Square
18/th/ and Cherry Streets
Philadelphia, Pennsylvania 19103-6996
(Name and Address of Agent for Service)
It is proposed that this post-effective amendment will become effective (check
appropriate box)
[ ] Immediately upon filing pursuant to paragraph (b)
[X] on March 31, 2000 pursuant to paragraph (b)
[_] 60 days after filing pursuant to paragraph (a)(1)
[_] on (date) pursuant to paragraph (a)(1)
[_] 75 days after filing pursuant to paragraph (a)(2)
- ---
[_] on (date) pursuant to paragraph (a)(2) of rule 485.
If appropriate, check the following box:
[_] this post-effective amendment designates a new effective date for a
previously filed post-effective amendment.
__________________________
Title of Securities Being Registered: Shares of Common Stock
<PAGE>
EXCELSIOR FUNDS, INC.
FORM N-1A
---------
PART C. OTHER INFORMATION
Item 23. Exhibits
(a) (1) Articles of Incorporation of Registrant dated
August 1, 1984 (4).
(2) Articles Supplementary of Registrant dated
October 29, 1985 (4).
(3) Articles Supplementary of Registrant dated
September 30, 1986 (4).
(4) Articles Supplementary of Registrant dated
April 10, 1987 (4).
(5) Articles Supplementary of Registrant dated
April 27, 1990 (4).
(6) Articles Supplementary of Registrant dated
October 26, 1990 (4).
(7) Articles Supplementary of Registrant dated
January 29, 1991 (4).
(8) Articles Supplementary of Registrant dated
December 23, 1992 (4).
(9) Articles Supplementary of Registrant dated
August 31, 1995 (1).
(10) Articles Supplementary of Registrant dated
December 28, 1995 (1).
(11) Articles Supplementary of Registrant dated
September 11, 1997 (3).
(12) Articles Supplementary of Registrant dated
December 22, 1997 (4).
<PAGE>
(13) Articles Supplementary of Registrant dated
November 13, 1998 (5).
(14) Articles of Amendment of Registrant dated July 1,
1999 (8).
(15) Articles Supplementary of Registrant dated January
3,2000 (8).
(16) Form of Articles Supplementary of Registrant (9).
(b) (1) Amended and Restated By-Laws of Registrant dated
February 2, 1995 (3).
(2) Amendment No. 1 to Amended and Restated By-Laws of
Registrant dated May 16, 1997 (3).
(c) (1) Articles VI, VII, VIII and X of Registrant's Articles
of Incorporation dated August 1, 1984 (4).
(2) Articles I, II, IV and VI of Registrant's Amended and
Restated By-Laws dated February 2, 1995 (3).
(d) (1) Investment Advisory Agreement among Registrant, U.S.
Trust Company of Connecticut and United States Trust Company
of New York dated May 16, 1997 with respect to the Money
Fund, Government Money Fund, Blended Equity Fund, Small Cap
Fund, Long-Term Supply of Energy Fund, Productivity
Enhancers Fund, Environmentally-Related Products and
Services Fund, Aging of America Fund, Communication and
Entertainment Fund, Value and Restructuring Fund, Global
Competitors Fund, Latin America Fund, Pacific/Asia Fund, Pan
European Fund, Short-Term Government Securities Fund and
Intermediate-Term Managed Income Fund (2).
(2) Amendment No. 1 dated July 25, 1997 to the Investment
Advisory Agreement among Registrant, U.S. Trust Company of
Connecticut and United States Trust Company of New York dated May
16, 1997 (adding the Large Cap Growth and Real Estate Funds) (3).
(3) Amendment No. 2 dated November 14, 1997 to the Investment
Advisory Agreement among Registrant, U.S.
-2-
<PAGE>
Trust Company of Connecticut and United States Trust Company of
New York dated May 16, 1997 (adding the Emerging Markets Fund)
(4).
(4) Form of Amendment No. 3 to the Investment Advisory Agreement
among Registrant, U.S. Trust Company and United States Trust
Company of New York (to become effective on the date of
commencement of operations of the Technology Fund) (9).
(5) Form of Investment Advisory Agreement among Registrant (on
behalf of the Technology Fund), U.S. Trust Company and United
States Trust Company of New York (to become effective on the date
of merger of The Charles Schwab Corporation with U.S. Trust
Corporation (parent company of the investment adviser)) (10).
(6) Investment Advisory Agreement among Registrant, U.S. Trust
Company of Connecticut and United States Trust Company of New
York dated May 16, 1997 with respect to the Managed Income Fund
(2).
(7) Investment Advisory Agreement among Registrant, U.S. Trust
Company of Connecticut and United States Trust Company of New
York dated May 16, 1997 with respect to the Income and Growth
Fund (2).
(8) Investment Advisory Agreement among Registrant, U.S. Trust
Company of Connecticut and United States Trust Company of New
York dated May 16, 1997 with respect to the International Fund
(2).
(9) Investment Advisory Agreement among Registrant, U.S. Trust
Company of Connecticut and United States Trust Company of New
York dated May 16, 1997 with respect to the Treasury Money Fund
(2).
(e) (1) Amended and Restated Distribution Contract dated July
31, 1998 between the Registrant and Edgewood Services, Inc.
(5).
(2) Form of Exhibit A to the Amended and Restated
Distribution Contract (adding the Technology Fund) (9).
(f) None.
(g) (1) Custody Agreement between the Registrant and The Chase
Manhattan Bank dated September 1, 1995 (as amended and restated
on August 1, 1997) (3).
-3-
<PAGE>
(2) Amendment No. 1 dated May 22, 1998 to the Custody Agreement
dated September 1, 1995 (as amended and restated on August 1,
1997) between the Registrant and The Chase Manhattan Bank (5).
(3) Amendment No. 2 dated May 22, 1998 to the Custody Agreement
dated September 1, 1995 (as amended and restated on August 1,
1997, between the Registrant and The Chase Manhattan Bank (5).
(4) Amendment No. 3 dated July 31, 1998 to the Custody Agreement
dated September 1, 1995 (as amended and restated on August 1,
1997) between the Registrant and The Chase Manhattan Bank (5).
(5) Amended Exhibit A dated November 28, 1997 to the Custody
Agreement dated September 1, 1995 (as amended and restated on
August 1, 1997) (4).
(6) Form of Amended Exhibit A to the Custody Agreement dated
September 1, 1995 (as amended and restated on August 1, 1997)
(adding the Technology Fund) (9).
(h) (1) Amended and Restated Administration Agreement dated July 31,
1998 among the Registrant, Chase Global Funds Services Company,
Federated Administrative Services and U.S. Trust Company of
Connecticut (5).
(2) Form of Exhibit A to the Amended and Restated Administration
Agreement dated July 31, 1998 among the Registrant, Chase Global
Funds Services Company, Federated Administrative Services and
U.S. Trust Company (adding the Technology Fund) (9).
(3) Form of Exhibit B to the Amended and Restated Administration
Agreement dated July 31, 1998 among the Registrant, Chase Global
Funds Services Company, Federated Administrative Services and
U.S. Trust Company (adding the Technology Fund) (9).
(4) Amended and Restated Mutual Funds Transfer Agency Agreement
dated as of July 31, 1998 between the Registrant and United
States Trust Company of New York (5).
-4-
<PAGE>
(5) Letter Agreement dated September 11, 1997 with
respect to the Mutual Funds Transfer Agency Agreement
dated September 1, 1995 (4).
(6) Letter Agreement dated November 14, 1997 with
respect to the Mutual Funds Transfer Agency Agreement
dated September 1, 1995 (4).
(7) Form of Letter Agreement with respect to the
Amended and Restated Mutual Funds Transfer Agency
Agreement dated July 31, 1998 (9).
(8) Amended and Restated Mutual Funds Sub-Transfer
Agency Agreement dated as of July 31, 1998 between
United States Trust Company of New York and Chase
Global Funds Services Company (5).
(9) Letter Agreement dated September 11, 1997 with
respect to the Mutual Funds Sub-Transfer Agency
Agreement dated September 1, 1995 (4).
(10) Letter Agreement dated November 14, 1997 with
respect to the Mutual Funds Sub-Transfer Agency
Agreement dated September 1, 1995 (4).
(11) Form of Letter Agreement with respect to the
Mutual Funds Sub-Transfer Agency Agreement dated July
31, 1998 (9).
(12) Amended and Restated Administrative Services Plan
and Related Form of Shareholder Servicing Agreement
(3).
(13) Administrative Services Plan and Related Form of
Servicing Agreement with Respect to the Institutional
Shares of the Money Fund (7).
(14) Administrative Services Plan and Related Form of
Servicing Agreement with Respect to the Advisor Shares
-5-
<PAGE>
Class of the Value and Restructuring, Large Cap Growth,
Blended Equity and Intermediate-Term Managed Income Funds
(8).
(15) Revised Appendix A to the Shareholder Servicing
Agreement (adding the Technology Fund) (9).
(16) Form of Waiver and Reimbursement Agreement among
Registrant, United States Trust Company of New York and
U.S. Trust Company (8).
(17) Credit Agreement dated December 27, 1999 by and among
Registrant, Excelsior Tax-Exempt Funds, Inc., Excelsior
Institutional Trust, The Chase Manhattan Bank and the
other lenders thereunder (8).
(i) Opinion of counsel (9).
(j) (1) Consent of Counsel (included in Exhibit (i)).
(j) (2) None.
(k) None.
(l) (1) Purchase Agreement between Registrant and Shearson
Lehman Brothers Inc. dated February 6, 1985 (4).
(2) Purchase Agreement between Registrant and UST
Distributors, Inc. dated December 29, 1992 (4).
(3) Purchase Agreement between Registrant and Edgewood
Services, Inc. dated November 17, 1995 (1).
(4) Purchase Agreement between Registrant and Edgewood
Services, Inc. dated September 25, 1997 (3).
(5) Purchase Agreement between Registrant and Edgewood
Services, Inc. dated December 30, 1997 (4).
(6) Form of Purchase Agreement between Registrant and
Edgewood Services, Inc. (8)
(7) Form of Purchase Agreement between Registrant and
Edgewood Services, Inc. (9).
-6-
<PAGE>
(m) Distribution Plan and Related Form of Distribution Agreement
relating to Advisor Shares of the Value and Restructuring,
Blended Equity, Large Cap Growth and Intermediate-Term Managed
Income Funds (8).
(n) Amended and Restated Plan Pursuant to Rule 18f-3 for
Operation of a Multi-Class System (8).
(p) Code of Ethics of Registrant (8).
Notes:
- -----
(1) Incorporated herein by reference to Registrant's Post-Effective Amendment
No. 23 to its Registration Statement on Form N-1A filed July 31, 1996.
(2) Incorporated herein by reference to Registrant's Post-Effective Amendment
No. 29 to its Registration Statement on Form N-1A filed July 31, 1997.
(3) Incorporated herein by reference to Registrant's Post-Effective Amendment
No. 30 to its Registration Statement on Form N-1A filed October 8, 1997.
(4) Incorporated herein by reference to Registrant's Post-Effective Amendment
No. 31 to its Registration Statement on Form N-1A filed March 13, 1998.
(5) Incorporated herein by reference to Registrant's Registration Statement on
Form N-14 filed April 5, 1999.
(6) Incorporated herein by reference to Registrant's Post-Effective Amendment
No. 33 to its Registration Statement on Form N-1A filed May 28, 1999.
(7) Incorporated herein by reference to Registrant's Post-Effective Amendment
No. 34 to its Registration Statement on Form N-1A filed July 29, 1999.
(8) Incorporated herein by reference to Registrant's Post-Effective Amendment
No. 35 to its Registration Statement on Form N-1A filed January 4, 2000.
(9) Incorporated herein by reference to Registrant's Post-Effective Amendment
No. 36 to its Registration Statement on Form N-1A filed February 8, 2000.
(10) Filed herewith.
-7-
<PAGE>
Item 24. Persons Controlled By or Under
Common Control with Registrant
------------------------------
Registrant is controlled by its Board of Directors.
Item 25. Indemnification
---------------
Article VII, Section 3 of Registrant's Articles of Incorporation,
incorporated herein by reference to Exhibit (a)(1) hereto, and Article VI,
Section 2 of Registrant's Amended and Restated Bylaws, incorporated herein by
reference to Exhibit (b)(1) hereto, provide for the indemnification of
Registrant's directors and officers. Indemnification of Registrant's principal
underwriter, custodian, transfer agent and co-administrators is provided for,
respectively, in Section 1.11 of the Amended and Restated Distribution Contract
incorporated herein by reference to Exhibit (e) hereto, Section 12 of the
Custody Agreement incorporated herein by reference to Exhibit (g)(1) hereto,
Section 7 of the Amended and Restated Mutual Funds Transfer Agency Agreement
incorporated herein by reference to Exhibit (h)(2) hereto, and Section 6 of the
Amended and Restated Administration Agreement incorporated herein by reference
to Exhibit (h)(1) hereto. Registrant has obtained from a major insurance carrier
a directors' and officers' liability policy covering certain types of errors and
omissions. In no event will Registrant indemnify any of its directors, officers,
employees, or agents against any liability to which such person would otherwise
be subject by reason of his willful misfeasance, bad faith, gross negligence in
the performance of his duties, or by reason of his reckless disregard of the
duties involved in the conduct of his office or arising under his agreement with
Registrant. Registrant will comply with Rule 484 under the Securities Act of
1933 and Release No. 11330 under the Investment Company Act of 1940 in
connection with any indemnification.
Insofar as indemnification for liability arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
Registrant pursuant to the foregoing provisions, or otherwise, Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by Registrant of expenses incurred or
paid by a director, officer, or controlling person of Registrant in the
successful defense of any action, suit, or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, 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 Act and will be governed by the final adjudication of
such issue .
Item 26. Business and Other Connections of the Investment Adviser
--------------------------------------------------------
(a) U.S. Trust Company:
-8-
<PAGE>
U.S. Trust Company ("U.S. Trust") is a Connecticut state bank and
trust company located in Stamford, Connecticut. Set forth below are the names
and principal businesses of the directors and certain senior executive officers
of U.S. Trust CT, including those who are engaged in any other business,
profession, vocation or employment of a substantial nature.
-9-
<PAGE>
<TABLE>
<CAPTION>
Position
with U.S. Principal Type of
Trust CT Name Occupation Business
- -------- ---- ---------- --------
<S> <C> <C> <C>
Director John N. Irwin Lawyer
1133 Avenue of the
Americas
New York, NY 10036
Director June Noble Larkin Foundation Not-for-Profit
Edward John Noble Director Organization
Foundation, Inc.
32 East 57th Street
New York, NY 10022
Director Tucker H. Warner Co-Founder, Consulting Firm
The Nutmeg Financial Partner &
Group, LLC Director
1157 Highland Avenue
West Cheshire, CT 06903
Director Thomas C. Clark Managing Director, Asset Management,
United States Trust United States Trust Investment and
Company of New York Company of New York Fiduciary Services
11 West 54th Street
New York, NY 10019
Director Maribeth S. Rahe Vice Chairman, Asset Management,
United States Trust United States Trust Investment and
Company of New York Company of New York Fiduciary Services
114 West 47th Street
New York, NY 10036
Director Frederick B. Taylor Vice Chairman, Asset Management,
United States Trust United States Trust Investment and
Company of New York Company of New York Fiduciary Services
114 West 47th Street
New York, NY 10036
Director Kenneth G. Walsh Executive Vice Asset Management,
United States Trust President, Investment and
Company of New York United States Fiduciary Services
114 West 47th Street Trust Company of
New York, NY 10036 New York
</TABLE>
-10-
<PAGE>
<TABLE>
<CAPTION>
Position
with U.S. Principal Type of
Trust CT Name Occupation Business
- -------- ---- ---------- --------
<S> <C> <C> <C>
Director William V. Ferdinad Managing Director Asset Management
Managing U.S. Trust Company CIO Fiduciary Services
Director & 225 High Ridge Road & Private Banking
CIO Stamford, CT 06905
Director, W. Michael Funck President & CEO Asset Management,
President & U.S. Trust Company Fiduciary Services
CEO 225 High Ridge Road & Private Banking
Stamford, CT 06905
Vice Presi- Neil M. McDonnell Vice President & Asset Management,
dent & U.S. Trust Company Treasurer Fiduciary Services
Treasurer 225 High Ridge Road & Private Banking
Stamford, CT 06905
Vice Presi- Alberto Rodriguez Vice President & Asset Management,
dent & U.S. Trust Company Secretary Fiduciary Services
Secretary 225 High Ridge Road & Private Banking
Stamford, CT 06905
</TABLE>
-11-
<PAGE>
(b) United States Trust Company of New York:
United States Trust Company of New York ("U.S. Trust NY") is a full-
service state-chartered bank located in New York, New York. Set forth below are
the names and principal businesses of the trustees and certain senior executive
officers of U.S. Trust NY, including those who are engaged in any other
business, profession, vocation, or employment of a substantial nature.
<TABLE>
<CAPTION>
Position
with U.S. Principal Type of
Trust NY Name Occupation Business
- ------- --------------------- ---------- --------
<S> <C> <C> <C>
Director Eleanor Baum Dean of School Academic
The Cooper Union for of Engineering
the Advancement
of Science & Art
4 Arleigh Road
Great Neck, NY 11021
Director Samuel C. Butler Partner in Cravath, Law Firm
Cravath, Swaine Swaine & Moore
& Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Director Peter O. Crisp Retired Chairman of Venture
103 Horseshoe Road Venrock, Inc. Capital
Mill Neck, NY 11765 Retired
Director Antonia M. Grumbach Partner in Patter- Law Firm
Patterson, Belknap, son, Belknap, Webb
Webb & Tyler LLP & Tyler
1133 Avenue of the
Americas
New York, NY 10036
Director, H. Marshall Schwarz Chairman of the Asset Management,
Chairman United States Trust Board & Chief Exe- Investment and
of the Board Company of New York cutive Officer of Fiduciary Services
and Chief 114 West 47th Street U.S. Trust Corp. and
Executive New York, NY 10036 U.S. Trust Company of
Officer New York
</TABLE>
-12-
<PAGE>
<TABLE>
<CAPTION>
Position
with U.S. Principal Type of
Trust NY Name Occupation Business
- ------- --------------------- ---------- --------
<S> <C> <C> <C>
Director Philippe de Montebello Director of the Art Museum
The Metropolitan Museum Metropolitan
of Art Museum of Art
1000 Fifth Avenue
New York, NY 10028-0198
Director John H. Stookey Chairman of Petrochemicals and
Box 455 Suburban Propane Pts. Propane
Sheffield, MA 01257
Director Robert N. Wilson Vice Chairman of Health Care
Johnson & Johnson the Board of Johnson Products
One Johnson & & Johnson
Johnson Plaza
New Brunswick, NJ 08933
Director Peter L. Malkin Chairman of Law Firm
Wein & Malkin LLP Wein & Malkin LLP
Lincoln Building
60 East 42nd Street
New York, NY 10165
Director David A. Olsen Retired Chairman of Risk & Insurance
1120 Park Avenue Johnson & Higgins Services
New York, NY 10128
Director Ruth A. Wooden President, Not for Profit
60 Gramercy Park North National Parenting
Apt. 2H Association
New York, NY 10010
Executive Paul K. Napoli Executive Asset Management,
Vice United States Trust Vice President of Investment and
President Company of New York U.S. Trust Corporation Fiduciary Services;
114 West 47th Street and United States Trust Private Banking
New York, NY 10036 Company of New York
</TABLE>
-13-
<PAGE>
<TABLE>
<CAPTION>
Position
with U.S. Principal Type of
Trust NY Name Occupation Business
- -------- ---- ---------- --------
<S> <C> <C> <C>
Director and Maribeth S. Rahe Vice Chairman Asset Management,
Vice Chair- United States Trust of U.S. Trust Corporation Investment and
man Company of New York and United States Trust Fiduciary Services
114 West 47th Street Company of New York
New York, NY 10036
Director, Frederick B. Taylor Vice Chairman and Asset Management,
Vice Chair- United States Trust Chief Investment Of- Investment and
man and Company of New York ficer of U.S. Trust Fiduciary Services
Chief Invest- 114 West 47th Street Corporation and United
ment Officer New York, NY 10036 States Trust Company
of New York
Director, Jeffrey S. Maurer President and Asset Management,
President, United States Trust Chief Operating Investment and
and Chief Company of New York Officer of U.S. Trust Fiduciary Services
Operating 114 West 47th Street Corporation and United
Officer New York, NY 10036 States Trust Company of
New York
Executive John L. Kirby Executive Asset Management,
Vice United States Trust Vice President; Investment and
President Company of New York Chief Financial Fiduciary Services
114 West 47th Street Officer of U.S. Trust
New York, NY 10030 Corporation and United
States Trust Company of
New York
Executive Kenneth G. Walsh Executive Asset Management,
Vice United States Trust Vice President of Investment and
President Company of New York U.S. Trust Corporation Fiduciary Services
114 West 47th Street and United States Trust
New York, NY 10030 Company of New York
Director Philip L. Smith Corporate Director and
P.O. Box 386 Trustee
Ponte Verde Beach, FL 32004
</TABLE>
-14-
<PAGE>
<TABLE>
<CAPTION>
Position
with U.S. Principal Type of
Trust NY Name Occupation Business
- -------- ---- ---------- --------
<S> <C> <C> <C>
Director Robert E. Denham Partner in Munger, Tolles Law Firm
Munger, Tolles & & Olson
Olson LLP
355 South Grand Avenue
35/th/ Floor
Los Angeles, CA 90071-1560
Director Carl H. Pforzheimer, III Managing Partner in Broker-Dealer,
Carl H. Pforzheimer & Co. Carl H. Pforzheimer & investment
650 Madison Avenue Co. advisor
23/rd/ Floor
New York, NY 10022
Executive John M. Deignan Executive Investment
Vice United States Trust Vice President Management and
President Company of New York Fiduciary Services;
114 West 47th Street Private Banking
New York, NY 10030
</TABLE>
-15-
<PAGE>
<TABLE>
<CAPTION>
(b) Names and Principal Positions and Offices with Offices with
Business Addresses the Distributor Registrant
------------------ --------------------- ----------
<S> <C> <C>
Lawrence Caracciolo Director and President, --
5800 Corporate Drive Edgewood Services, Inc.
Pittsburgh, PA 15237-7002
Arthur L. Cherry Director, --
5800 Corporate Drive Edgewood Services, Inc.
Pittsburgh, PA 15237-7002
J. Christopher Donahue Director, --
5800 Corporate Drive Edgewood Services, Inc.
Pittsburgh, PA 15237-7002
Thomas P. Sholes Vice President, --
5800 Corporate Drive Edgewood Services, Inc.
Pittsburgh, PA 15237-7002
Ernest L. Linane Vice President, --
5800 Corporate Drive Edgewood Services, Inc.
Pittsburgh, PA 15237-7002
Christine T. Johnson Vice President, --
5800 Corporate Drive Edgewood Services, Inc.
Pittsburgh, PA 15237-7002
Dennis McAuley, III Assistant Treasurer, --
5800 Corporate Drive Edgewood Services, Inc.
Pittsburgh, PA 15237-7002
Thomas R. Donahue Treasurer, --
5800 Corporate Drive Edgewood Services, Inc.
Pittsburgh, PA 15237-7002
Robert M. Rossi Assistant Vice President, --
5800 Corporate Drive Edgewood Services, Inc.
Pittsburgh, PA 15237-7002
Timothy S. Johnson Secretary,
5800 Corporate Drive Edgewood Services, Inc.
Pittsburgh, PA 15237-7002
</TABLE>
-16-
<PAGE>
<TABLE>
<CAPTION>
(b) Names and Principal Positions and Offices with Offices with
Business Addresses the Distributor Registrant
------------------ --------------- ----------
<S> <C> <C>
Victor R. Siclari Assistant Secretary,
5800 Corporate Drive Edgewood Services, Inc.
Pittsburgh, PA 15237-7002
</TABLE>
(c) Not Applicable.
Item 28. Location of Accounts and Records
--------------------------------
1. United States Trust Company of New York, 114 W. 47th Street, New
York, NY 10036 (records relating to its functions as investment adviser and
transfer agent).
2. U.S. Trust Company, 225 High Ridge Road, East Building, Stamford,
Connecticut 06905 (records relating to its function as investment adviser and
co-administrator).
3. Edgewood Services, Inc., Clearing Operations, 5800 Corporate
Drive, Pittsburgh, PA 15237-5829 (records relating to its function as
distributor).
4. Chase Global Funds Services Company, 73 Tremont Street, Boston,
Massachusetts 02108-3913 (records relating to its function as co-administrator
and sub-transfer agent).
5. Federated Administrative Services, Federated Investors Tower,
Pittsburgh, PA 15222-3799 (records relating to its function as co-
administrator).
6. The Chase Manhattan Bank, 3 Chase MetroTech Center, 8th Floor,
Brooklyn, NY 11245 (records relating to its function as custodian).
7. Drinker Biddle & Reath LLP, One Logan Square, 18th and Cherry
Streets, Philadelphia, Pennsylvania 19103-6996 (Registrant's Articles of
Incorporation, Bylaws, and Minute Books).
Item 29. Management Services
-------------------
Not Applicable.
Item 30. Undertakings
------------
Not Applicable.
-17-
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933 (the "1933
Act") and the Investment Company Act of 1940, Excelsior Funds, Inc. certifies
that it meets all of the requirements for effectiveness of this registration
statement under Rule 485(b) under the 1933 Act and has duly caused this
Registration Statement Post-Effective Amendment No. 37 to its Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Philadelphia and the State of Pennsylvania on the
29th day of March, 2000.
EXCELSIOR FUNDS, INC.
Registrant
* Frederick S. Wonham
--------------------------------------------
Frederick S. Wonham, President and Treasurer
(Signature and Title)
Pursuant to the requirements of the 1933 Act, this Post-Effective
Amendment No. 37 to Excelsior Funds, Inc.'s Registration Statement on Form N-1A
has been signed below by the following persons in the capacities and on the
dates indicated.
Signature Title Date
- --------- ----- ----
* Frederick S. Wonham Chairman of the Board, March 29, 2000
- ----------------------- President and Treasurer
Frederick S. Wonham
* Joseph H. Dugan Director March 29, 2000
- -----------------
Joseph H. Dugan
* Donald L. Campbell Director March 29, 2000
- --------------------
Donald L. Campbell
* Wolfe J. Frankl Director March 29, 2000
- -----------------
Wolfe J. Frankl
* Robert A. Robinson Director March 29, 2000
- --------------------
Robert A. Robinson
* Alfred Tannachion Director March 29, 2000
- -------------------
Alfred Tannachion
* Jonathan Piel Director March 29, 2000
- ---------------
Jonathan Piel
*Rodman L. Drake Director March 29, 2000
- ----------------
Rodman L. Drake
*By: /s/ W. Bruce McConnel, III
--------------------------
W. Bruce McConnel, III, Attorney-in-Fact
<PAGE>
EXCELSIOR FUNDS, INC.
EXCELSIOR TAX-EXEMPT FUNDS, INC.
EXCELSIOR INSTITUTIONAL TRUST
POWER OF ATTORNEY
-----------------
KNOWN ALL MEN BY THESE PRESENTS, that the undersigned hereby appoints
Frederick S. Wonham and W. Bruce McConnel, III, and either of them, his true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in his capacity as
director/trustee or officer, or both, to execute amendments to Excelsior Funds,
Inc.'s, Excelsior Tax-Exempt Funds, Inc.'s and Excelsior Institutional Trust's
(collectively, the "Companies") respective Registration Statements on Form N-1A
pursuant to the Investment Company Act of 1940, as amended, and the Securities
Act of 1933, as amended (the "Acts") and all instruments necessary or incidental
in connection therewith pursuant to said Acts and any rules, regulations, or
requirements of the Securities and Exchange Commission in respect thereof, and
to file the same with the Securities and Exchange Commission, and said attorney
shall have full power and authority, to do and perform in the name and on behalf
of the undersigned in any and all capacities, every act whatsoever requisite or
necessary to be done, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorney may
lawfully do or cause to be done by virtue hereof.
Dated: May 21, 1999 /s/ Alfred C. Tannachion
------------------------
Alfred C. Tannachion
<PAGE>
EXCELSIOR FUNDS, INC.
EXCELSIOR TAX-EXEMPT FUNDS, INC.
EXCELSIOR INSTITUTIONAL TRUST
POWER OF ATTORNEY
-----------------
KNOWN ALL MEN BY THESE PRESENTS, that the undersigned hereby appoints
Frederick S. Wonham and W. Bruce McConnel, III, and either of them, his true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in his capacity as
director/trustee or officer, or both, to execute amendments to Excelsior Funds,
Inc.'s, Excelsior Tax-Exempt Funds, Inc.'s and Excelsior Institutional Trust's
(collectively, the "Companies") respective Registration Statements on Form N-1A
pursuant to the Investment Company Act of 1940, as amended, and the Securities
Act of 1933, as amended (the "Acts") and all instruments necessary or incidental
in connection therewith pursuant to said Acts and any rules, regulations, or
requirements of the Securities and Exchange Commission in respect thereof, and
to file the same with the Securities and Exchange Commission, and either of said
attorneys shall have full power and authority, to do and perform in the name and
on behalf of the undersigned in any and all capacities, every act whatsoever
requisite or necessary to be done, as fully and to all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that either
of said attorneys may lawfully do or cause to be done by virtue hereof.
Dated: May 21, 1999 /s/ Donald L. Campbell
----------------------
Donald L. Campbell
<PAGE>
EXCELSIOR FUNDS, INC.
EXCELSIOR TAX-EXEMPT FUNDS, INC.
EXCELSIOR INSTITUTIONAL TRUST
POWER OF ATTORNEY
-----------------
KNOWN ALL MEN BY THESE PRESENTS, that the undersigned hereby appoints
Frederick S. Wonham and W. Bruce McConnel, III, and either of them, his true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in his capacity as
director/trustee or officer, or both, to execute amendments to Excelsior Funds,
Inc.'s, Excelsior Tax-Exempt Funds, Inc.'s and Excelsior Institutional Trust's
(collectively, the "Companies") respective Registration Statements on Form N-1A
pursuant to the Investment Company Act of 1940, as amended, and the Securities
Act of 1933, as amended (the "Acts") and all instruments necessary or incidental
in connection therewith pursuant to said Acts and any rules, regulations, or
requirements of the Securities and Exchange Commission in respect thereof, and
to file the same with the Securities and Exchange Commission, and either of said
attorneys shall have full power and authority, to do and perform in the name and
on behalf of the undersigned in any and all capacities, every act whatsoever
requisite or necessary to be done, as fully and to all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that either
of said attorneys may lawfully do or cause to be done by virtue hereof.
Dated: May 21, 1999 /s/ Joseph H. Dugan
-------------------
Joseph H. Dugan
<PAGE>
EXCELSIOR FUNDS, INC.
EXCELSIOR TAX-EXEMPT FUNDS, INC.
EXCELSIOR INSTITUTIONAL TRUST
POWER OF ATTORNEY
-----------------
KNOWN ALL MEN BY THESE PRESENTS, that the undersigned hereby appoints
Frederick S. Wonham and W. Bruce McConnel, III, and either of them, his true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in his capacity as
director/trustee or officer, or both, to execute amendments to Excelsior Funds,
Inc.'s, Excelsior Tax-Exempt Funds, Inc.'s and Excelsior Institutional Trust's
(collectively, the "Companies") respective Registration Statements on Form N-1A
pursuant to the Investment Company Act of 1940, as amended, and the Securities
Act of 1933, as amended (the "Acts") and all instruments necessary or incidental
in connection therewith pursuant to said Acts and any rules, regulations, or
requirements of the Securities and Exchange Commission in respect thereof, and
to file the same with the Securities and Exchange Commission, and either of said
attorneys shall have full power and authority, to do and perform in the name and
on behalf of the undersigned in any and all capacities, every act whatsoever
requisite or necessary to be done, as fully and to all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that either
of said attorneys may lawfully do or cause to be done by virtue hereof.
Dated: May 21, 1999 /s/ Robert A. Robinson
----------------------
Robert A. Robinson
<PAGE>
EXCELSIOR FUNDS, INC.
EXCELSIOR TAX-EXEMPT FUNDS, INC.
EXCELSIOR INSTITUTIONAL TRUST
POWER OF ATTORNEY
-----------------
KNOWN ALL MEN BY THESE PRESENTS, that the undersigned hereby appoints
Frederick S. Wonham and W. Bruce McConnel, III, and either of them, his true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in his capacity as
director/trustee or officer, or both, to execute amendments to Excelsior Funds,
Inc.'s, Excelsior Tax-Exempt Funds, Inc.'s and Excelsior Institutional Trust's
(collectively, the "Companies") respective Registration Statements on Form N-1A
pursuant to the Investment Company Act of 1940, as amended, and the Securities
Act of 1933, as amended (the "Acts") and all instruments necessary or incidental
in connection therewith pursuant to said Acts and any rules, regulations, or
requirements of the Securities and Exchange Commission in respect thereof, and
to file the same with the Securities and Exchange Commission, and either of said
attorneys shall have full power and authority, to do and perform in the name and
on behalf of the undersigned in any and all capacities, every act whatsoever
requisite or necessary to be done, as fully and to all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that either
of said attorneys may lawfully do or cause to be done by virtue hereof.
Dated: May 21, 1999 /s/ Wolfe J. Frankl
-------------------
Wolfe J. Frankl
<PAGE>
EXCELSIOR FUNDS, INC.
EXCELSIOR TAX-EXEMPT FUNDS, INC.
EXCELSIOR INSTITUTIONAL TRUST
EXCELSIOR FUNDS
POWER OF ATTORNEY
-----------------
KNOWN ALL MEN BY THESE PRESENTS, that the undersigned hereby appoints
W. Bruce McConnel, III his true and lawful attorney-in-fact and agent with full
power of substitution and resubstitution, for him and in his name, place and
stead, in his capacity as director/trustee or officer, or both, to execute
amendments to Excelsior Funds, Inc.'s, Excelsior Tax-Exempt Funds, Inc.'s,
Excelsior Institutional Trust's and Excelsior Funds' (collectively, the
"Companies") respective Registration Statements on Form N-1A pursuant to the
Investment Company Act of 1940, as amended, and the Securities Act of 1933, as
amended (the "Acts") and all instruments necessary or incidental in connection
therewith pursuant to said Acts and any rules, regulations, or requirements of
the Securities and Exchange Commission in respect thereof, and to file the same
with the Securities and Exchange Commission, and said attorney shall have full
power and authority, to do and perform in the name and on behalf of the
undersigned in any and all capacities, every act whatsoever requisite or
necessary to be done, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorney may
lawfully do or cause to be done by virtue hereof.
Dated: May 21, 1999 /s/ Frederick S. Wonham
------------------------
Frederick S. Wonham
<PAGE>
EXCELSIOR FUNDS, INC.
EXCELSIOR TAX-EXEMPT FUNDS, INC.
EXCELSIOR INSTITUTIONAL TRUST
EXCELSIOR FUNDS
POWER OF ATTORNEY
-----------------
KNOWN ALL MEN BY THESE PRESENTS, that the undersigned hereby appoints
Frederick S. Wonham and W. Bruce McConnel, III, and either of them, his true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in his capacity as
director/trustee or officer, or both, to execute amendments to Excelsior Funds,
Inc.'s, Excelsior Tax-Exempt Funds, Inc.'s, Excelsior Institutional Trust's and
Excelsior Funds' (collectively, the "Companies") respective Registration
Statements on Form N-1A pursuant to the Investment Company Act of 1940, as
amended, and the Securities Act of 1933, as amended (the "Acts") and all
instruments necessary or incidental in connection therewith pursuant to said
Acts and any rules, regulations, or requirements of the Securities and Exchange
Commission in respect thereof, and to file the same with the Securities and
Exchange Commission, and either of said attorneys shall have full power and
authority, to do and perform in the name and on behalf of the undersigned in any
and all capacities, every act whatsoever requisite or necessary to be done, as
fully and to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that either of said attorneys may lawfully do or
cause to be done by virtue hereof.
Dated: May 21, 1999 /s/ Rodman L. Drake
-------------------
Rodman L. Drake
<PAGE>
EXCELSIOR FUNDS, INC.
EXCELSIOR TAX-EXEMPT FUNDS, INC.
EXCELSIOR INSTITUTIONAL TRUST
EXCELSIOR FUNDS
POWER OF ATTORNEY
-----------------
KNOWN ALL MEN BY THESE PRESENTS, that the undersigned hereby appoints
Frederick S. Wonham and W. Bruce McConnel, III, and either of them, his true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in his capacity as
director/trustee or officer, or both, to execute amendments to Excelsior Funds,
Inc.'s, Excelsior Tax-Exempt Funds, Inc.'s, Excelsior Institutional Trust's and
Excelsior Funds' (collectively, the "Companies") respective Registration
Statements on Form N-1A pursuant to the Investment Company Act of 1940, as
amended, and the Securities Act of 1933, as amended (the "Acts") and all
instruments necessary or incidental in connection therewith pursuant to said
Acts and any rules, regulations, or requirements of the Securities and Exchange
Commission in respect thereof, and to file the same with the Securities and
Exchange Commission, and either of said attorneys shall have full power and
authority, to do and perform in the name and on behalf of the undersigned in any
and all capacities, every act whatsoever requisite or necessary to be done, as
fully and to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that either of said attorneys may lawfully do or
cause to be done by virtue hereof.
Dated: May 21, 1999 /s/ Jonathan Piel
-----------------
Jonathan Piel
<PAGE>
EXCELSIOR FUNDS, INC.
Certificate of Secretary
The following resolution was duly adopted by the Board of Directors of
Excelsior Funds, Inc. on November 19, 1999 and remains in effect on the date
hereof:
FURTHER RESOLVED, that the directors and officers of Excelsior Funds,
Inc. who may be required to execute such Registration Statement on
Form N-1A (and any amendments thereto), and each of them, hereby appoint
Frederick S. Wonham and W. Bruce McConnel, III, and each of them, their
true and lawful attorney, or attorneys, to execute in their name, place and
stead, in their capacity as director or officer, or both, of Excelsior
Funds, Inc., the Registration Statement on Form N-1A, any amendments
thereto, and all instruments necessary or incidental in connection
therewith, and to file the same with the SEC, and either of said attorneys
shall have power to act with or without the other of said attorneys and
shall have full power of substitution and re-substitution; and either of
said attorneys shall have full power and authority to do and perform in the
name and on behalf of each of said directors or officers, or any or all of
them, in any and all capacities, every act whatsoever requisite or
necessary to be done in the premises, as fully and to all intents and
purposes as each of said directors or officers, or any or all of them,
being hereby ratified and approved; and
FURTHER RESOLVED, that such Post-Effective Amendment shall be in such
form as the officer or officers executing the same, on the advice of
counsel to Excelsior Funds, Inc., may approve as necessary or desirable,
such approval to be conclusively evidenced by his, her or their execution
thereof.
EXCELSIOR FUNDS, INC.
By: /s/ W. Bruce McConnel, III
--------------------------
W. Bruce McConnel, III
Secretary
Dated: March 29, 2000
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
(d)(5) Form of Investment Advsiory Agreement among Registrant (on
behalf of the Technology Fund), U.S. Trust Company and
United States Trust Company of New York (to become effective
on the date of merger of The Charles Schwab Corporation with
U.S Trust Corporation (parent company of the investment
adviser)).
<PAGE>
EXHIBIT (d)(5)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made as of ___________, 2000 by and among EXCELSIOR FUNDS, INC.,
a Maryland corporation (herein called the "Company"), U.S. TRUST COMPANY
("UST"), a Connecticut state bank and trust company, and UNITED STATES TRUST
COMPANY OF NEW YORK ("USTNY"), a New York state-chartered bank and trust company
(together with UST, the "Investment Adviser").
WHEREAS, the Company is registered as an open-end, diversified, management
investment company under the Investment Company Act of 1940 (the "1940 Act");
WHEREAS, the Company desires to retain the Investment Adviser to render
investment advisory and other services to the Company for its Technology Fund
portfolio (the "Fund"), and the Investment Adviser is willing to so render such
services;
NOW, THEREFORE, this Agreement
WITNESSETH:
In consideration of the premises and mutual covenants herein contained, it
is agreed between the parties hereto as follows:
1. Appointment. The Company hereby appoints the Investment Adviser
-----------
to act as investment adviser to the Company for the Fund for the period and on
the terms set forth in this Agreement. The Investment Adviser accepts such
appointment and agrees to render the services herein set forth for the
compensation herein provided. The Investment Adviser may, in its discretion,
provide such services through its own employees or the employees of one or more
affiliated companies that are qualified to act as investment adviser to the
Company under applicable law provided (i) that all persons, when providing
services hereunder, are functioning as part of an organized group of persons,
(ii) the use of an affiliate's employees does not result in a change of actual
control or management of the Investment Adviser under the 1940 Act; and (iii)
the use of an affiliate's employees has been approved by the Board of Directors
of the Company.
2. Delivery of Documents. The Company has furnished the Investment
---------------------
Adviser with copies properly certified or authenticated of each of the
following:
(a) Articles of Incorporation of the Company;
(b) By-Laws of the Company;
(c) Resolutions of the Board of Directors of the Company authorizing
the appointment of the Investment Adviser and the execution and delivery of this
Agreement;
(d) Registration Statement under the Securities Act of 1933, as
amended, and the Investment Company Act of 1940, as amended, on Form N-1A (No.
2-92665) relating to shares ("Shares") of the Fund covered by this Agreement,
and all amendments thereto:
<PAGE>
(e) Notification of Registration of the Company under the Investment
Company Act of 1940, as amended, on Form N-8A as filed with the Securities and
Exchange Commission on August 8, 1984, and all amendments thereto; and
(f) Prospectuses of the Company relating to the Shares in effect under
the Securities Act of 1933 (such prospectuses and supplements thereto, as
presently in effect and as from time to time amended and supplemented, herein
called the "Prospectus").
The Company will furnish the Investment Adviser from time to time with
copies of all amendments of or supplements to the foregoing, if any.
3. Management. Subject to the supervision of the Board of Directors
----------
of the Company, the Investment Adviser will provide a continuous investment
program for the Fund, including investment research and management with respect
to all securities, investments, cash and cash equivalents in the Fund. The
Investment Adviser will determine from time to time what securities and other
investments will be purchased, retained or sold by the Company for the Fund. The
Investment Adviser will provide the services rendered by it hereunder in
accordance with the Fund's investment objective and policies as stated in the
Prospectus. The Investment Adviser further agrees that it:
(a) will conform with all applicable Rules and Regulations of the
Securities and Exchange Commission (herein called the "Rules"), and will in
addition conduct its activities under this Agreement in accordance with
applicable law, including but not limited to applicable banking law;
(b) will not make loans for the purpose of purchasing or carrying
Shares, or make loans to the Company;
(c) will place orders pursuant to its investment determinations for
the Fund either directly with the issuer or with any broker or dealer selected
by it. In placing orders with brokers and dealers, the Investment Adviser will
use its reasonable best efforts to obtain the best net price and the most
favorable execution of its orders, after taking into account all factors it
deems relevant, including the breadth of the market in the security, the price
of the security, the financial condition and execution capability of the broker
or dealer, and the reasonableness of the commission, if any, both for the
specific transaction and on a continuing basis. Consistent with this obligation,
the Investment Adviser may, to the extent permitted by law, purchase and sell
portfolio securities to and from brokers and dealers who provide brokerage and
research services (within the meaning of Section 28(e) of the Securities
Exchange Act of 1934) to or for the benefit of the Fund and/or other accounts
over which the Investment Adviser or any of its affiliates exercises investment
discretion. Subject to the review of the Company's Board of Directors from time
to time with respect to the extent and continuation of the policy, the
Investment Adviser is authorized to pay to a broker or dealer who provides such
brokerage and research services a commission for effecting a securities
transaction for any Fund which is in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction if the
Investment Adviser determines in good faith that such commission was reasonable
in relation to the value of the brokerage and research services provided by such
broker or dealer, viewed in terms of either that particular transaction or the
overall responsibilities of the
-2-
<PAGE>
Investment Adviser with respect to the accounts as to which it exercises
investment discretion. In no instance will portfolio securities be purchased
from or sold to the Fund's principal underwriter, the Investment Adviser or any
affiliated person thereof except as permitted by the Securities and Exchange
Commission;
(d) will maintain books and records with respect to the Fund's
securities transactions and will render to the Company's Board of Directors such
periodic and special reports as the Board may request;
(e) will maintain a policy and practice of conducting its Asset
Management Group independently of its Banking Group. When the Investment Adviser
makes investment recommendations for the Fund, its Asset Management Group
personnel will not inquire or take into consideration whether the issuer of
securities proposed for purchase or sale for the Fund's account are customers of
the Banking Group. In dealing with commercial customers, the Banking Group will
not inquire or take into consideration whether securities of those customers are
held by the Fund;
(f) will treat confidentially and as proprietary information of the
Company all records and other information relative to the Fund and prior,
present or potential shareholders, and will not use such records and information
for any purpose other than performance of its responsibilities and duties
hereunder, except after prior notification to and approval in writing by the
Company, which approval shall not be unreasonably withheld and may not be
withheld where the Investment Adviser may be exposed to civil or criminal
contempt proceedings for failure to comply, when requested to divulge such
information by duly constituted authorities, or when so requested by the
Company. Nothing contained herein, however, shall prohibit the Investment
Adviser from advertising or soliciting the public generally with respect to
other products or services, regardless of whether such advertisement or
solicitation may include prior, present or potential shareholders of the
Company.
4. Services Not Exclusive. The investment management services
----------------------
rendered by the Investment Adviser hereunder are not to be deemed exclusive, and
the Investment Adviser shall be free to render similar services to others so
long as its services under this Agreement are not impaired thereby.
5. Books and Records. In compliance with the requirements of Rule
-----------------
31a-3 of the Rules under the Investment Company Act of 1940, the Investment
Adviser hereby agrees that all records which it maintains for the Fund are the
property of the Company and further agrees to surrender promptly to the Company
any of such records upon the Company's request. The Investment Adviser further
agrees to preserve for the periods prescribed by Rule 31a-2 the records required
to be maintained by Rule 31a-1 of the Rules.
6. Expenses. During the term of this Agreement, the Investment
--------
Adviser will pay all expenses incurred by it in connection with its activities
under this Agreement other than the cost of securities (including brokerage
commissions, if any) purchased for the Funds.
In addition, if the expenses borne by the Fund in any fiscal year exceed the
applicable expense limitations imposed by the securities regulations of any
state in which the
-3-
<PAGE>
Shares are registered or qualified for sale to the public, the Investment
Adviser shall reimburse the Fund for a portion of any such excess in an amount
equal to the proportion that the fees otherwise payable to the Investment
Adviser bear to the total amount of investment advisory and administration fees
otherwise payable by the Fund up to the amount of the fees payable to the
Investment Adviser during such fiscal year pursuant to paragraph 7 hereof;
provided, however, that notwithstanding the foregoing, the Investment Adviser
shall reimburse the Fund for a portion of such excess expenses in an amount
equal to the proportion that the fees otherwise payable to the Investment
Adviser bear to the total amount of investment advisory and administration fees
otherwise payable by the Fund regardless of the amount of fees paid to the
Investment Adviser during such fiscal year to the extent that the securities
regulations of any state in which the Shares are registered or qualified for
sale so require.
7. Compensation. For the services provided and the expenses assumed
------------
pursuant to this Agreement, the Company will pay the Investment Adviser and the
Investment Adviser will accept as full compensation therefor a fee, computed
daily and payable monthly, at the following annual rate: 1.00% of the average
daily net assets of the Technology Fund.
8. Limitation of Liability of the Investment Adviser. The Investment
-------------------------------------------------
Adviser shall not be liable for any error of judgment or mistake of law or for
any loss suffered by the Company in connection with the matters to which this
Agreement relates, except the Investment Adviser shall be jointly, but not
severally, liable for a loss resulting from a breach of fiduciary duty with
respect to the receipt of compensation for services or a loss resulting from
willful misfeasance, bad faith or gross negligence on the part of the Investment
Adviser in the performance of its duties or from reckless disregard by it of its
obligations and duties under this Agreement.
9. Duration and Termination. This Agreement shall be effective as of
------------------------
the date hereof and unless sooner terminated as provided herein, shall continue
until July 31, 2001. Thereafter, if not terminated, this Agreement shall
continue in effect as to a particular Fund for successive periods of 12 months
each, provided such continuance is specifically approved at least annually (a)
by the vote of a majority of those members of the Board of Directors of the
Company who are not parties to this Agreement or interested persons of any such
party, cast in person at a meeting called for the purpose of voting on such
approval, and (b) by the Board of Directors of the Company or, with respect to
the Fund, by vote of a majority of the outstanding voting securities of the
Fund; provided, however, that this Agreement may be terminated by the Company as
to the Fund at any time, without the payment of any penalty, by the Board of
Directors of the Company or, with respect to the Fund, by vote of a majority of
the outstanding voting securities of such Fund on 60 days' written notice to the
Investment Adviser, or by the Investment Adviser as to the Fund at any time,
without payment of any penalty, on 90 days' written notice to the Company. This
Agreement will immediately terminate in the event of its assignment. (As used in
this Agreement, the terms "majority of the outstanding voting securities,"
"interested person" and "assignment" shall have the same meanings as such terms
have in the Investment Company Act of 1940.) An affiliate of the Investment
Adviser may assume the Investment Adviser's obligations under this Agreement
provided that (i) the affiliate is qualified to act as an investment adviser to
the Company under applicable law; (ii) the assumption will not result in a
change of actual control or management of the Investment
-4-
<PAGE>
Adviser; and (iii) the assumption of the Investment Adviser's obligations by the
affiliate is approved by the Board of Directors of the Company.
10. Amendment of this Agreement. No provision of this Agreement may
---------------------------
be changed, waived, discharged or terminated orally, but only by an instrument
in writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought, and no amendment of this Agreement shall be
effective with respect to the Fund until approved by vote of a majority of the
Fund's outstanding voting securities, if such vote is required by the 1940 Act,
or by the vote of a majority of the Board of Directors of the Company who are
not parties to this Agreement or interested persons of any such party, cast in
person at a meeting called for the purpose of voting on such amendment.
11. Miscellaneous. The captions in this Agreement are included for
-------------
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and shall be
governed by New York law.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
above written.
EXCELSIOR FUNDS, INC.
Attest:
By:
- -------------------------- -----------------------------
Secretary President
Attest: U.S. TRUST COMPANY
By:
- -------------------------- -----------------------------
UNITED STATES TRUST COMPANY
Attest: OF NEW YORK
By:
- -------------------------- -----------------------------
-5-
