Exhibit 77Q(g):
Agreement and Plan of Reorganization with Credit Suisse Strategic Value
Fund, Inc.
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as
of this 7th day of March, 2003, between and among Credit Suisse Capital
Funds, a Massachusetts business trust (the "Trust"), for and on behalf
of its series, Credit Suisse Large Cap Value Fund (the "Acquiring Fund"),
and Credit Suisse Strategic Value Fund, Inc., a Maryland corporation
(the "Acquired Fund"), and, solely for purposes of Sections 4.3, 5.9
and 9.2 hereof, Credit Suisse Asset Management, LLC, a limited liability
company organized under the laws of the State of Delaware ("CSAM").
This Agreement is intended to be and is adopted as a plan of
reorganization within the meaning of Section 368(a) of the United
States Internal Revenue Code of 1986, as amended (the "Code"). The
reorganization of the Acquired Fund (collectively, the "Reorganization")
will consist of the transfer of all of the assets of the Acquired Fund
in exchange solely for shares of beneficial interest of the applicable
class or classes (collectively, the "Shares") of the Acquiring Fund, and
the assumption by the Acquiring Fund of liabilities of the Acquired Fund,
and the distribution, on or after the Closing Date hereinafter referred
to, of Shares of the Acquiring Fund ("Acquiring Fund Shares") to the
shareholders of the Acquired Fund in liquidation of the Acquired Fund as
provided herein, all upon the terms and conditions hereinafter set forth
in this Agreement.
As the Acquiring Fund is a series of the Trust, all parties to this
Agreement acknowledge and accept that the Acquiring Fund does not have a
Board of Trustees or officers separate from the other series of the Trust.
Accordingly, all representations, warranties, covenants and/or other
obligations of any kind made by the Acquiring Fund in this Agreement are
expressly understood by all parties to this Agreement as being made by
the Trustees or officers of the Trust, as applicable, in their respective
capacities as Trustees or officers (and not in their individual
capacities) for, and on behalf of, the Acquiring Fund.
WHEREAS, the Board of Directors of the Acquired Fund has determined that
the exchange of all of the assets of the Acquired Fund for Acquiring Fund
Shares and the assumption of the liabilities of the Acquired Fund by the
Acquiring Fund is in the best interests of the Acquired Fund and that the
interests of the existing shareholders of the Acquired Fund would not be
diluted as a result of this transaction; and
WHEREAS, the Board of Trustees of the Acquiring Fund has determined that
the exchange of all of the assets of the Acquired Fund for Acquiring Fund
Shares is in the best interests of the Acquiring Fund's shareholders and
that the interests of the existing shareholders of the Acquiring Fund
would not be diluted as a result of this transaction.
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter set forth, the parties hereto covenant and agree
as follows:
1. Transfer of Assets of the Acquired Fund in Exchange for Acquiring
Fund Shares and Assumption of the Acquired Fund's Liabilities and
Liquidation of the Acquired Fund.
1.1. Subject to the terms and conditions herein set forth and on the
basis of the representations and warranties contained herein, the Acquired
Fund agrees to transfer its assets as set forth in paragraph 1.2 to the
Acquiring Fund, and the Acquiring Fund agrees in exchange therefor:
(i) to deliver to the Acquired Fund the number of each class of the
Acquiring Fund Shares, including fractional Acquiring Fund Shares, of each
class of the Acquired Fund determined by dividing the value of the
Acquired Fund's net assets attributable to each such class of shares,
computed in the manner and as of the time and date set forth in
paragraph 2.1, by the net asset value of one Acquiring Fund Share of
the applicable class; and
(ii) to assume the liabilities of the Acquired Fund, as set forth in
paragraph 1.3. Such transactions shall take place at the closing provided
for in paragraph 3.1 (the "Closing").
1.2. (a) The assets of the Acquired Fund to be acquired by the Acquiring
Fund shall consist of all property including, without limitation, all cash,
securities and dividend or interest receivables that are owned by or owed
to the Acquired Fund and any deferred or prepaid expenses shown as an asset
on the books of the Acquired Fund on the Closing date provided in
paragraph 3.1 (the "Closing Date").
(b) The Acquired Fund has provided the Acquiring Fund with a list of
all of the Acquired Fund's assets as of the date of execution of this
Agreement. The Acquired Fund reserves the right to sell any of these
securities but will not, without the prior approval of the Acquiring Fund,
acquire any additional securities other than securities of the type in which
the Acquiring Fund is permitted to invest. The Acquired Fund will, within a
reasonable time prior to the Closing Date, furnish the Acquiring Fund with a
list of the securities, if any, on the Acquired Fund's list referred to in
the first sentence of this paragraph which do not conform to the Acquiring
Fund's investment objective, policies and restrictions. In the event that
the Acquired Fund holds any investments which the Acquiring Fund may not hold,
the Acquired Fund will dispose of such securities prior to the Closing Date.
In addition, if it is determined that the portfolios of the Acquired Fund and
the Acquiring Fund, when aggregated, would contain investments exceeding
certain percentage limitations imposed upon the Acquiring Fund with respect
to such investments, the Acquired Fund, if requested by the Acquiring Fund,
will dispose of and/or reinvest a sufficient amount of such investments as
may be necessary to avoid violating such limitations as of the Closing Date.
1.3. The Acquired Fund will endeavor to discharge all of the known
liabilities and obligations of the Acquired Fund prior to the Closing Date,
other than those liabilities and obligations which would otherwise be
discharged at a later date in the ordinary course of business.
The Acquiring Fund shall assume all liabilities, expenses, costs, charges
and reserves, including those liabilities reflected on unaudited statements
of assets and liabilities of the Acquired Fund and the Acquiring Fund prepared
by State Street Bank and Trust Company ("State Street"), the accounting agent
of each Fund, as of the Valuation Date (as defined in paragraph 2.1), in
accordance with generally accepted accounting principles consistently applied
from the prior audited period. The Acquiring Fund shall also assume any
liabilities, expenses, costs or charges incurred by or on behalf of the
Acquired Fund specifically arising from or relating to the operations and/or
transactions of the Acquired Fund prior to and including the Closing Date but
which are not reflected on the above-mentioned statement of assets and
liabilities, including any liabilities, expenses, costs or charges arising
under paragraph 5.7 hereof.
1.4. As soon on or after the Closing Date as is conveniently practicable
(the "Liquidation Date"), the Acquired Fund will liquidate and distribute
pro rata to the Acquired Fund's shareholders of record determined as of the
close of business on the Closing Date (the "Fund Shareholders") the Acquiring
Fund Shares it receives pursuant to paragraph 1.1. Such liquidation and
distribution will be accomplished by the transfer of the Acquiring Fund Shares
then credited to the account of the Acquired Fund on the books of the Acquiring
Fund to open accounts on the share records of the Acquiring Fund in the name
of the Acquired Fund's shareholders representing the respective pro rata number
of the Acquiring Fund Shares due such shareholders. All issued and outstanding
shares of the Acquired Fund will simultaneously be canceled on the books of the
Acquired Fund, although share certificates representing interests in the
Acquired Fund will represent a number of Acquiring Fund Shares after the
Closing Date as determined in accordance with Section 2.2. The Acquiring Fund
shall not issue certificates representing the Acquiring Fund Shares in
connection with such exchange.
1.5. Ownership of Acquiring Fund Shares will be shown on the books of the
Acquiring Fund's transfer agent. Shares of the Acquiring Fund will be issued
in the manner described in the Acquiring Fund's current prospectuses and
statement of additional information.
1.6. Any transfer taxes payable upon issuance of the Acquiring Fund Shares
in a name other than the registered holder of the Acquired Fund Shares on the
books of the Acquired Fund as of that time shall, as a condition of such
issuance and transfer, be paid by the person to whom such Acquiring Fund Shares
are to be issued and transferred.
1.7. Any reporting responsibility of the Acquired Fund is and shall remain
the responsibility of the Acquired Fund up to and including the Closing Date
and such later date on which the Acquired Fund is terminated.
2. Valuation
2.1. The value of the Acquired Fund's assets to be acquired hereunder shall
be the value of such assets computed as of the close of regular trading on The
New York Stock Exchange, Inc. (the "NYSE") on the Closing Date (such time and
date being hereinafter called the "Valuation Date"), using the valuation
procedures set forth in the Acquired Fund's then current prospectuses or
statement of additional information.
2.2. The number of Class A, Class B, Class C, Class A and Advisor Class
Shares of the Acquiring Fund to be issued (including fractional shares, if
any) in exchange for Class A, Class B, Class C, Common Class and Advisor Class
shares, respectively, of the Acquired Fund shall be determined by dividing the
value of the net assets of the Acquired Fund attributable to its respective
Class A, Class B, Class C, Common Class and Advisor Class shares determined
using the same valuation procedures referred to in paragraph 2.1 by the net
asset value per Share of the Class A, Class B, Class C, Class A or Advisor
Class shares, respectively, of the Acquiring Fund computed as of the close
of regular trading on the NYSE on the Closing Date, using the valuation
procedures set forth in the Acquiring Fund's then current prospectuses or
statement of additional information.
2.3. All computations of value with respect to the Acquiring Fund and the
Acquired Fund shall be made by State Street in accordance with its regular
practice as pricing agent for the Acquiring Fund.
3. Closing and Closing Date
3.1. The Closing Date for the Reorganization shall be April 17, 2003,
or such other date as the parties to such Reorganization may agree to in
writing. All acts taking place at the Closing shall be deemed to take place
simultaneously as of the close of trading on the NYSE on the Closing Date
unless otherwise provided. The Closing shall be held as of 10:00 a.m., at the
offices of Xxxxxxx Xxxx & Xxxxxxxxx or at such other time and/or place as the
parties may agree.
3.2. State Street Bank and Trust Company, the custodian for the Acquiring
Fund (the "Custodian"), shall deliver as soon as practicable after the
Closing a certificate of an authorized officer stating that: (a) the Acquired
Fund's portfolio securities, cash and any other assets have been delivered in
proper form to the Acquiring Fund on the Closing Date and (b) all necessary
taxes, including all applicable federal and state stock transfer stamps, if
any, have been paid, or provision for payment has been made, in conjunction
with the delivery of portfolio securities.
3.3. In the event that on the Valuation Date (a) the NYSE or another
primary trading market for portfolio securities of the Acquiring Fund or the
Acquired Fund shall be closed to trading or trading thereon shall be
restricted or (b) trading or the reporting of trading on the NYSE or elsewhere
shall be disrupted so that accurate appraisal of the value of the net assets
of the Acquiring Fund or the Acquired Fund is impracticable, the applicable
Closing Date shall be postponed until the first business day after the day
when trading shall have been fully resumed and reporting shall have been
restored.
3.4. The Acquired Fund shall deliver at the Closing a list of the names
and addresses of the Acquired Fund's shareholders and the number and class
of outstanding Shares owned by each such shareholder immediately prior to
the Closing or provide evidence that such information has been provided to
the Acquiring Fund's transfer agent. The Acquiring Fund shall issue and
deliver a confirmation evidencing the Acquiring Fund Shares to be credited
to the Acquired Fund's account on the Closing Date to the Secretary of the
Acquired Fund or provide evidence satisfactory to the Acquired Fund that such
Acquiring Fund Shares have been credited to the Acquired Fund's account on
the books of the Acquiring Fund. At the Closing, each party shall deliver to
the relevant other parties such bills of sale, checks, assignments, share
certificates, if any, receipts or other documents as such other party or its
counsel may reasonably request.
4. Representations and Warranties
4.1. The Acquired Fund represents and warrants to the Acquiring Fund
as follows:
(a) The Acquired Fund is a duly organized, validly existing corporation
in good standing under the laws of the State of Maryland;
(b) The Acquired Fund is a registered investment company classified as a
management company of the open-end type and its registration with the
Securities and Exchange Commission (the "Commission") as an investment company
under the Investment Company Act of 1940, as amended (the "1940 Act"), is in
full force and effect;
(c) The Acquired Fund is not, and the execution, delivery and performance
of this Agreement by the Acquired Fund will not result, in a violation of its
Articles of Incorporation or ByLaws or any material agreement, indenture,
instrument, contract, lease or other undertaking to which the Acquired Fund
is a party or by which the Acquired Fund or its property is bound or affected;
(d) There are no contracts or other commitments (other than this Agreement)
of the Acquired Fund which will be terminated with liability to the Acquired
Fund prior to the Closing Date;
(e) Except as previously disclosed in writing to and accepted by the
Acquiring Fund, no litigation or administrative proceeding or investigation
of or before any court or governmental body is presently pending or to its
knowledge threatened against the Acquired Fund or any of its properties or
assets which, if adversely determined, would materially and adversely affect
its financial condition or the conduct of its business. Except as previously
disclosed in writing to and accepted by the Acquiring Fund, the Acquired Fund
knows of no facts which might form the basis for the institution of such
proceedings and is not 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 the business of the Acquired Fund or its
ability to consummate the transactions herein contemplated;
(f) The Statements of Assets and Liabilities of the Acquired Fund as of
October 31, 2002, including the Schedule of Investments and the related
Statement of Operations for the year then ended, the Statement of Changes in
Net Assets for each of the two years in the period then ended and the
Financial Highlights for each of the five years in the period then ended,
have been audited by PricewaterhouseCoopers LLP (or one of its legacy firms),
independent accountants, and are in accordance with generally accepted
accounting principles consistently applied, and such statements (copies of
which have been furnished to the Acquiring Fund) fairly reflect the financial
condition of the Acquired Fund as of such dates, and there are no known
contingent liabilities of the Acquired Fund as of October 31, 2002 not
disclosed therein;
(g) Since October 31, 2002, 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 maturing more than
one year from the date such indebtedness was incurred except as otherwise
disclosed to and accepted in writing by the Acquiring Fund. For purposes
of this subsection (g), a decline in net asset value per share of the
Acquired Fund due to declines in market values of securities in the Acquired
Fund's portfolio, the discharge of Fund liabilities, or the redemption of the
Acquired Fund shares by Fund shareholders shall not constitute a material
adverse change;
(h) At the date hereof and the Closing Date, all federal and other tax
returns and reports, including extensions, of the Acquired Fund required by
law to have been filed by such dates shall have been filed, and all federal
and other taxes shall have been paid so far as due, or provision shall have
been made for the payment thereof and, to the best of the Acquired Fund's
knowledge, no such return is currently under audit and no assessment has been
asserted with respect to such returns;
(i) For each taxable year of its operation (including the taxable year
ending on the Closing Date), the Acquired Fund has met the requirements of
Subchapter M of the Code for qualification and treatment as a regulated
investment company; all of the Acquired Fund's issued and outstanding shares
have been offered and sold in compliance in all material respects with
applicable federal and state securities laws;
(j) All issued and outstanding shares of each class of the Acquired Fund
are, and at the Closing Date will be, duly and validly issued and outstanding,
fully paid and non-assessable. All of the issued and outstanding shares of
the Acquired Fund will, at the time of Closing, be held by the persons and in
the amounts set forth in the records of the transfer agent as provided in
paragraph 3.4. The Acquired Fund does not have outstanding any options,
warrants or other rights to subscribe for or purchase any of the Acquired
Fund's shares, nor is there outstanding any security convertible into any of
the Acquired Fund's shares;
(k) At the Closing Date, the Acquired Fund will have good and marketable
title to the Acquired Fund's assets to be transferred to the Acquiring Fund
pursuant to paragraph 1.2 and full right, power and authority to sell, assign,
transfer and deliver such assets hereunder and, upon delivery and payment for
such assets, the Acquiring Fund will acquire good and marketable title
thereto, subject to no restrictions on the full transfer thereof, except
such restrictions as might arise under the Securities Act of 1933, as
amended (the "1933 Act"), and the 1940 Act with respect to privately placed
or otherwise restricted securities that the Acquired Fund may have acquired
in the ordinary course of business and of which the Acquiring Fund has
received notice and necessary documentation at or prior to the Closing;
(l) The execution, delivery and performance of this Agreement has been
duly authorized by all necessary actions on the part of the Acquired Fund's
Board of Directors, and subject to the approval of the Acquired Fund's
shareholders, this Agreement will constitute a valid and binding obligation
of the Acquired Fund enforceable in accordance with its terms, subject to
the effect of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other laws relating to or affecting creditors' rights and to
general equity principles;
(m) The information to be furnished by the Acquired Fund for use in
applications for orders, registration statements or proxy materials or for
use in any other document filed or to be filed with any federal, state or
local regulatory authority (including the NASD, Inc.), which may be
necessary in connection with the transactions contemplated hereby, shall be
accurate and complete in all material respects and shall comply in all
material respects with federal securities and other laws and regulations
applicable thereto;
(n) The current prospectuses and statements of additional information
of the Acquired Fund conform in all material respects to the applicable
requirements of the 1933 Act and the 1940 Act and the rules and regulations
of the Commission thereunder and do not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not materially misleading; and
(o) Insofar as the following relate to the Acquired Fund, the
registration statement filed by the Acquiring Fund on Form N-14 relating
to Acquiring Fund Shares that will be registered with the Commission
pursuant to this Agreement, which, without limitation, shall include a
proxy statement of the Acquired Fund (the "Proxy Statement") and the
prospectuses of the Acquiring Fund with respect to the transactions
contemplated by this Agreement, and any supplement or amendment thereto,
and the documents contained or incorporated therein by reference
(the "N-14 Registration Statement"), on the effective date of the N-14
Registration Statement, at the time of any shareholders' meeting referred
to herein, on the Valuation Date and on the Closing Date:
(i) shall comply in all material respects with the provisions of the 1933
Act, the Securities Exchange Act of 1934 (the "1934 Act") and the 1940 Act
and the rules and regulations under those Acts, and (ii) shall 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 the representations and warranties
in this section shall not apply to statements in or omissions from the
Proxy Statement and the N-14 Registration Statement made in reliance upon
and in conformity with information that was furnished or should have been
furnished by the Acquiring Fund for use therein.
4.2. The Acquiring Fund represents and warrants to the Acquired Fund
as follows:
(a) The Acquiring Fund is a duly established series of the Trust;
the Trust is a Massachusetts business trust duly organized and validly
existing under the laws of The Commonwealth of Massachusetts;
(b) The Trust is a registered investment company classified as a
management company of the open-end type and its registration with the
Commission as an investment company under the 1940 Act is in full force
and effect;
(c) The current prospectuses and statements of additional information
filed as part of the Acquiring Fund registration statement on Form N-1A
(the "Acquiring Fund Registration Statement") conform in all material
respects to the applicable requirements of the 1933 Act and the 1940 Act
and the rules and regulations of the Commission under those Acts and do
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not materially misleading;
(d) At the Closing Date, the Acquiring Fund will have good and
marketable title to its assets;
(e) The Acquiring Fund is not, and the execution, delivery and
performance of this Agreement will not result, in a violation of its
Amended and Restated Agreement and Declaration of Trust or By-Laws or
any material agreement, indenture, instrument, contract, lease or other
undertaking to which the Acquiring Fund is a party or by which the
Acquiring Fund or its property is bound;
(f) Except as previously disclosed in writing to and accepted by
the Acquired Fund, no litigation or administrative proceeding or
investigation of or before any court or governmental body is presently
pending or to its knowledge threatened against the Acquiring Fund or
any of its properties or assets which, if adversely determined, would
materially and adversely affect its financial condition or the conduct
of its business. The Acquiring 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 contemplated
herein;
(g) Since October 31, 2002, there has not been any material adverse
change in the Acquiring Fund's financial condition, assets, liabilities or
business other than changes occurring in the ordinary course of business,
or any incurrence by the Acquiring Fund of indebtedness maturing more than
one year from the date such indebtedness was incurred except as otherwise
disclosed to and accepted in writing by the Acquired Fund. For purposes
of this subsection (g), a decline in net asset value per share of the
Acquiring Fund due to declines in market values of securities in the
Acquiring Fund's portfolio, the discharge of Acquiring Fund liabilities,
or the redemption of Acquiring Fund Shares by Acquiring Fund Shareholders
shall not constitute a material adverse change;
(h) At the Closing Date, all federal and other tax returns and reports,
including extensions, of the Acquiring Fund required by law then to be
filed shall have been filed, and all federal and other taxes shown as due
on said returns and reports shall have been paid or provision shall have
been made for the payment thereof;
(i) For each taxable year of its operation (including the taxable year
which includes the Closing Date), the Acquiring Fund has met the
requirements of Subchapter M of the Code for qualification as a regulated
investment company and has elected to be treated as such, has been
eligible to and has computed its federal income tax under Section 852
of the Code;
(j) At the date hereof, all issued and outstanding Acquiring Fund
Shares of each class are, and at the Closing Date will be, duly and
validly issued and outstanding, fully paid and, except as set forth in
the Trust's Amended and Restated Agreement and Declaration of Trust,
non-assessable, by the Acquiring Fund. The Acquiring Fund does not have
outstanding any options, warrants or other rights to subscribe for or
purchase any Acquiring Fund Shares, nor is there outstanding any security
convertible into any Acquiring Fund Shares;
(k) The execution, delivery and performance of this Agreement has
been duly authorized by all necessary actions on the part of the Acquiring
Fund's Board of Trustees, and this Agreement will constitute a valid and
binding obligation of the Acquiring Fund enforceable in accordance with
its terms, subject to the effect of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other laws relating to or
affecting creditors' rights and to general equity principles;
(l) The Acquiring Fund Shares to be issued and delivered to the
Acquired Fund, for the account of the Acquired Fund's shareholders,
pursuant to the terms of this Agreement, will at the Closing Date have
been duly authorized and when so issued and delivered, will be duly and
validly issued Acquiring Fund Shares, and will be fully paid and, except
as set forth in the Trust's Amended and Restated Agreement and
Declaration of Trust, non-assessable, by the Acquiring Fund;
(m) Insofar as the following relate to the Acquiring Fund, the N-14
Registration Statement, on the effective date of the N-14 Registration
Statement, at the time of any shareholders' meeting referred to herein,
on the Valuation Date and on the Closing Date:
(i) shall comply in all material respects with the provisions of the 1933
Act, the 1934 Act and the 1940 Act and the rules and regulations under
those Acts, and (ii) shall 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 the representations and warranties in this section shall
not apply to statements in or omissions from the Proxy Statement and
the N-14 Registration Statement made in reliance upon and in conformity
with information that was furnished or should have been furnished by
the Acquired Fund for use therein; and
(n) The Acquiring Fund agrees to use all reasonable efforts to
obtain the approvals and authorizations required by the 1933 Act, the
1940 Act and such of the state Blue Sky or securities laws as it may deem
appropriate in order to continue its operations after the Closing Date.
4.3. CSAM represents and warrants to the Acquiring Fund as follows:
To the knowledge of CSAM (i) there are no claims, actions, suits or
proceedings pending against the Acquired Fund, and (ii) there are no
claims, actions, suits or proceedings threatened, or circumstances that
have been identified by the Management Committee of CSAM and the
Secretary thereof as reasonably likely to give rise to any claims,
actions, suits or proceedings, against the Acquired Fund that would
materially adversely affect the Acquired Fund or its assets or business
other than those disclosed in writing to and accepted by the Acquiring
Fund.
5. Covenants of the Acquired Fund and the Acquiring Fund
5.1. The Acquiring Fund and the Acquired Fund will operate their
respective businesses in the ordinary course between the date hereof
and the Closing Date. It is understood that such ordinary course of
business will include the declaration and payment of customary dividends
and distributions.
5.2. The Acquired Fund will call a meeting of the shareholders of the
Acquired Fund to consider and act upon this Agreement and to take all
other actions necessary to obtain approval of the transactions
contemplated herein.
5.3. The Acquired Fund covenants that the Acquiring Fund Shares to be
issued hereunder are not being acquired for the purpose of making any
distribution thereof other than in accordance with the terms of this
Agreement.
5.4. The Acquired Fund will assist the Acquiring Fund in obtaining
such information as the Acquiring Fund reasonably requests concerning
the beneficial ownership of the Acquired Fund's Shares.
5.5. Subject to the provisions of this Agreement, the Acquiring Fund
and the Acquired Fund will each take, or cause to be taken, all action,
and do or cause to be done, all things reasonably necessary, proper or
advisable to consummate and make effective the transactions contemplated
by this Agreement.
5.6. The Acquired Fund will provide the Acquiring Fund with
information reasonably necessary for the preparation of a prospectus
(the "Prospectus") which will include the Proxy Statement referred to in
paragraph 4.1(o), all to be included in the N-14 Registration Statement,
in compliance with the 1933 Act, the 1934 Act and the 1940 Act in
connection with the meeting of the Acquired Fund's shareholders to
consider approval of this Agreement and the transactions contemplated
herein.
5.7. The Acquiring Fund agrees to indemnify and advance expenses to
each person who at the time of the execution of this Agreement serves as
a Director or Officer ("Indemnified Person") of the Acquired Fund, against
money damages actually and reasonably incurred by such Indemnified Person
in connection with any claim that is asserted against such Indemnified
Person arising out of such person's service as a Director or officer of
the Acquired Fund with respect to matters specifically relating to the
Reorganization, provided that such indemnification and advancement of
expenses shall be permitted to the fullest extent that is available under
applicable law. This paragraph 5.7 shall not protect any such Indemnified
Person against any liability to the Acquired Fund, the Acquiring Fund or
their shareholders to which he would otherwise be subject by reason of
willful misfeasance, bad faith, gross negligence or from reckless
disregard of the duties involved in the conduct of his office. An
Indemnified Person seeking indemnification shall be entitled to advances
from the Acquiring Fund for payment of the reasonable expenses incurred
by him in connection with the matter as to which he is seeking
indemnification in the manner and to the fullest extent permissible
under applicable law. Such Indemnified Person shall provide to the
Acquiring Fund a written affirmation of his good faith belief that the
standard of conduct necessary for indemnification by the Acquiring Fund
under this paragraph has been met and a written undertaking to repay any
advance if it should ultimately be determined that the standard of conduct
has not been met. In addition, at least one of the following additional
conditions shall be met: (a) the Indemnified Person shall provide security
in form and amount acceptable to the Acquiring Fund for its undertaking;
(b) the Acquiring Fund is insured against losses arising by reason of the
advance; or (c) either a majority of a quorum of disinterested non-party
trustees of the Acquiring Fund (collectively, the "Disinterested
Trustees"), or independent legal counsel experienced in mutual fund
matters, selected by the Indemnified Person, in a written opinion, shall
have determined, based on a review of facts readily available to the
Acquiring Fund at the time the advance is proposed to be made, that
there is reason to believe that the Indemnified Person will ultimately
be found to be entitled to indemnification.
5.8. The Acquiring Fund agrees to take no action that would adversely
affect the qualification of the Reorganization as a reorganization under
Section 368(a) of the Code. In this regard, the Acquiring Fund covenants
that, following the Reorganization, it (a) will (i) continue the historic
business of the Acquired Fund or (ii) use a significant portion of the
Acquired Fund's historic business assets, and (b) will not sell or
otherwise dispose of any of the assets of the Acquired Fund, except for
dispositions in the ordinary course of business or transfers to a
corporation (or other entity classified for federal income tax purposes
as an association taxable as a corporation) that is "controlled" by the
Acquiring Fund within the meaning of Section 368(c) of the Code.
5.9. CSAM agrees that the Trust will succeed to all rights that the
Acquired Fund has, or would have but for the Reorganization, against CSAM
or its affiliates by reason of any act or failure to act by CSAM or any
of its affiliates prior to the Closing Date.
6. Conditions Precedent to Obligations of the Acquired Fund
The obligations of the Acquired Fund to consummate the transactions
provided for herein shall be subject, at its election, to the performance
by the Acquiring Fund of all of the obligations to be performed by it
hereunder on or before the Closing Date and, in addition thereto, the
following further conditions:
6.1. All representations and warranties of the Acquiring Fund
contained in this Agreement shall be true and correct in all material
respects as of the date hereof and, except as they may be affected by
the actions contemplated by this Agreement, as of the Closing Date with
the same force and effect as if made on and as of the Closing Date;
6.2. The Acquiring Fund shall have delivered to the Acquired Fund a
certificate executed in its name by its Chairman, Vice President,
Secretary, Treasurer or Assistant Treasurer, in a form reasonably
satisfactory to the Acquired Fund and dated as of the Closing Date, to
the effect that the representations and warranties of the Acquiring Fund
made in this Agreement are true and correct at and as of the Closing
Date, except as they may be affected by the transactions contemplated by
this Agreement and as to such other matters as the Acquired Fund shall
reasonably request; and
6.3. The Acquired Fund shall have received on the Closing Date a
favorable opinion from Xxxxxxx Xxxx & Xxxxxxxxx, counsel to the Acquiring
Fund, dated as of the Closing Date, in a form reasonably satisfactory to
the Acquired Fund, covering the following points:
That (a) the Trust is a validly existing business trust under the laws
of The Commonwealth of Massachusetts, and has the trust power to own all
of its properties and assets and to carry on its business as a registered
investment company; (b) the Agreement has been duly authorized, executed
and delivered by the Trust and the Acquiring Fund is a duly established
series of the Trust and, assuming due authorization, execution and
delivery of the Agreement by the other parties hereto, is a valid and
binding obligation of the Trust enforceable against the Acquiring Fund
in accordance with its terms, subject to the effect of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles; (c) the Acquiring Fund Shares to be
issued to the Acquired Fund's shareholders as provided by this Agreement
are duly authorized and upon such delivery will be validly issued and
outstanding and are fully paid and, except as set forth in the Trust's
Amended and Restated Agreement and Declaration of Trust, non-assessable
and no shareholder of the Acquiring Fund has any preemptive rights to
subscription or purchase in respect thereof; (d) the execution and
delivery of this Agreement did not, and the consummation of the
transactions contemplated hereby will not, conflict with the Trust's
Amended and Restated Agreement and Declaration of Trust or By-Laws, or
result in a material violation of any provision of any material agreement
(known to such counsel) to which the Trust is a party or by which it or
its property is bound or, to the knowledge of such counsel, result in the
acceleration of any obligation or the imposition of any penalty, under
any material agreement, judgment or decree to which the Trust is a party
or by which it or its property is bound; (e) to the knowledge of such
counsel, no consent, approval, authorization or order of any court or
governmental authority of the United States or The Commonwealth of
Massachusetts is required for the consummation by the Trust of the
actions 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 laws; (f) only insofar as they relate to the Acquiring
Fund, the descriptions in the Proxy Statement of statutes, legal and
governmental proceedings, investigations, orders, decrees or judgments
of any court or governmental body in the United States and contracts and
other documents, if any, are accurate and fairly present the information
required to be shown; (g) to the knowledge of such counsel, there is no
legal, administrative or governmental proceeding, investigation, order,
decree or judgment of any court or governmental body, only insofar as they
relate to the Acquiring Fund or its assets or properties, pending,
threatened or otherwise existing on or before the effective date of the
N-14 Registration Statement or the Closing Date, which are required to be
described in the N-14 Registration Statement or to be filed as an exhibit
to the N-14 Registration Statement which is not described and filed as
required or which materially and adversely affect the Acquiring Fund's
business; (h) the Trust is registered as an investment company under the
1940 Act and, to the knowledge of such counsel, its registration with the
Commission as an investment company under the 1940 Act is in full force
and effect; and (i) the Proxy Statement, as of its date, appeared on its
face to be appropriately responsive in all material respects to the
requirements of the 1933 Act, the 1934 Act and the 1940 Act and the rules
and regulations thereunder; provided, however, that such counsel shall be
entitled to state that it does not assume any responsibility for the
accuracy, completeness or fairness of the Proxy Statement.
With respect to all matters of Massachusetts law, such counsel shall be
entitled to state that, with the approval of the Acquired Fund, they have
relied upon the opinion of Xxxxxxxx & Worcester LLP and that their opinion
is subject to the same assumptions, qualifications and limitations with
respect to such matters as are contained in the opinion of Xxxxxxxx &
Worcester LLP. Such opinion also shall include such other matters incident
to the transaction contemplated hereby as the Acquired Fund may reasonably
request.
In this paragraph 6.3, references to the Proxy Statement include and
relate only to the text of such Proxy Statement and not, except as
specifically stated above, to any exhibits or attachments thereto or to any
documents incorporated by reference therein.
6.4 The Board of Trustees of the Acquiring Fund, including a majority
of the trustees who are not "interested persons" of the Acquiring Fund
(as defined in the 1940 Act), shall have determined that this Agreement and
the transactions contemplated hereby are in the best interests of the
Acquiring Fund and that the interests of the shareholders in the Acquiring
Fund would not be diluted as a result of such transactions, and the
Acquiring Fund shall have delivered to the Acquired Fund at the Closing, a
certificate, executed by an officer, to the effect that the condition
described in this subparagraph has been satisfied.
7. Conditions Precedent to Obligations of the Acquiring Fund
The obligations of the Acquiring Fund to complete the transactions provided
for herein shall be subject, at its election, to the performance by the
Acquired Fund of all the obligations to be performed by it hereunder on or
before the Closing Date and, in addition thereto, the following conditions:
7.1. All representations and warranties by or on behalf of the Acquired
Fund contained in this Agreement shall be true and correct in all material
respects as of the date hereof and, except as they may be affected by the
transactions contemplated by this Agreement, as of the Closing Date with the
same force and effect as if made on and as of the Closing Date;
7.2. The Acquired Fund shall have delivered to the Acquiring Fund a
statement of the Acquired Fund's assets and liabilities as of the Closing
Date, certified by the Treasurer or Assistant Treasurer of the Acquired Fund;
7.3. The Acquired Fund shall have delivered to the Acquiring Fund on the
Closing Date a certificate executed in its name by its Chairman, Vice
President, Secretary, Treasurer or Assistant Treasurer, in form and substance
satisfactory to the Acquiring Fund and dated as of the Closing Date, to the
effect that the representations and warranties of the Acquired Fund made in
this Agreement are true and correct at and as of the Closing Date, except as
they may be affected by the transactions contemplated by this Agreement, and
as to such other matters as the Acquiring Fund shall reasonably request; and
7.4. The Acquiring Fund shall have received on the Closing Date a
favorable opinion of Xxxxxxx Xxxx & Xxxxxxxxx, counsel to the Acquired Fund,
in a form satisfactory to the Secretary of the Acquiring Fund, covering the
following points:
That (a) the Acquired Fund is a validly existing corporation and in good
standing under the laws of the State of Maryland and has the statutory power
to own all of its properties and assets and to carry on its business as a
registered investment company; (b) the Agreement has been duly authorized,
executed and delivered by the Acquired Fund and, assuming due authorization,
execution and delivery of the Agreement by the other parties hereto, is a
valid and binding obligation of the Acquired Fund in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
(c) the execution and delivery of the Agreement did not, and the consummation
of the transactions contemplated hereby will not, conflict with the Acquired
Fund's Articles of Incorporation or By-Laws or result in a material violation
of any provision of any material agreement (known to such counsel) to which
the Acquired Fund is a party or by which it or its property is bound or, to
the knowledge of such counsel, result in the acceleration of any obligation
or the imposition of any penalty, under any material agreement, judgment, or
decree to which the Acquired Fund is a party or by which it or its property
is bound; (d) to the knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority of the United
States or the State of Maryland is required for the consummation by the
Acquired 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 laws; (e) the Proxy Statement
(except as to financial and statistical data contained therein, as to which
no opinion need be given), as of its date, appeared on its face to be
appropriately responsive in all material respects to the 1934 Act and the
1940 Act and the rules and regulations thereunder; provided, however, that
such counsel shall be entitled to state that it does not assume any
responsibility for the accuracy, completeness or fairness of the Proxy
Statement; (f) to the knowledge of such counsel, there is no legal,
administrative or governmental proceeding, investigation, order, decree or
judgment of any court or governmental body, only insofar as they relate to
the Acquired Fund or its assets or properties, pending, threatened or
otherwise existing on or before the effective date of the N-14 Registration
Statement or the Closing Date, which is required to be described in the
N-14 Registration Statement or to be filed as an exhibit to the N-14
Registration Statement which is not described or filed as required or which
materially and adversely affect the Acquired Fund's business; and (g)
the Acquired Fund is registered as an investment company under the 1940 Act,
and, to the knowledge of such counsel, its registration with the Commission
as an investment company under the 1940 Act is in full force and effect.
With respect to all matters of Maryland law, such counsel shall be entitled
to state that, with the approval of the Acquiring Fund, they have relied upon
the opinion of Xxxxxxx, Baetjer and Xxxxxx, LLP and that their opinion is
subject to the same assumptions, qualifications and limitations with respect
to such matters as are contained in the opinion of Xxxxxxx, Baetjer and
Xxxxxx, LLP. Such opinion also shall include such other matters incident
to the transaction contemplated hereby as the Acquiring Fund may reasonably
request.
In this paragraph 7.4, references to the Proxy Statement include and
relate only to the text of such Proxy Statement and not to any exhibits or
attachments thereto or to any documents incorporated by reference therein.
7.5. The Acquiring Fund shall have received from PricewaterhouseCoopers
LLP a letter addressed to the Acquiring Fund dated as of the effective date
of the N-14 Registration Statement in form and substance satisfactory to
the Acquiring Fund, to the effect that:
(a) they are independent public accountants with respect to the
Acquired Fund within the meaning of the 1933 Act and the applicable
regulations thereunder; and
(b) in their opinion, the financial statements and financial
highlights of the Acquired Fund included or incorporated by reference
in the N-14 Registration Statement and reported on by them comply as to
form in all material aspects with the applicable accounting requirements
of the 1933 Act and the rules and regulations thereunder.
7.6. The Acquired Fund shall have received from PricewaterhouseCoopers
LLP a letter addressed to the Acquired Fund dated as of the effective date
of the N-14 Registration Statement in form and substance satisfactory to
the Acquired Fund, to the effect that:
(a) they are independent public accountants with respect to the
Acquiring Fund within the meaning of the 1933 Act and the applicable
regulations thereunder; and
(b) in their opinion, the financial statements and financial
highlights of the Acquiring Fund included or incorporated by reference
in the N-14 Registration Statement and reported on by them comply as to
form in all material aspects with the applicable accounting requirements
of the 1933 Act and the rules and regulations thereunder.
7.7. The Acquiring Fund and the Acquired Fund shall have received from
PricewaterhouseCoopers LLP a letter addressed to both Funds and dated as
of the effective date of the N-14 Registration Statement in form and
substance satisfactory to each Fund, to the effect that: on the basis of
limited procedures agreed upon by the Acquiring Fund and the Acquired
Fund and described in such letter (but not an examination in accordance
with generally accepted auditing standards), specified information
relating to each Fund appearing in the N-14 Registration Statement and
the Proxy Statement has been obtained from the accounting records of
each Fund or from schedules prepared by officers of each Fund having
responsibility for financial and reporting matters and such information
is in agreement with such records, schedules or computations made therefrom.
7.8. The Acquired Fund shall have delivered to the Acquiring Fund,
pursuant to paragraph 4.1(f), copies of financial statements of the
Acquired Fund as of and for the fiscal year ended October 31, 2002.
7.9. The Acquiring Fund shall have received from PricewaterhouseCoopers
LLP a letter addressed to the Acquiring Fund and dated as of the Closing
Date stating that, as of a date no more than three (3) business days prior
to the Closing Date, PricewaterhouseCoopers LLP performed limited procedures
and that on the basis of those procedures it confirmed the matters set forth
in paragraph 7.6.
7.10. The Board of Directors of the Acquired Fund, including a majority
of the directors who are not "interested persons" of the Acquired Fund (as
defined by the 1940 Act), shall have determined that this Agreement and the
transactions contemplated hereby are in the best interests of the Acquired
Fund and that the interests of the shareholders in the Acquired Fund would
not be diluted as a result of such transactions, and the Acquired Fund shall
have delivered to the Acquiring Fund at the Closing, a certificate, executed
by an officer, to the effect that the condition described in this
subparagraph has been satisfied.
8. Further Conditions Precedent to Obligations of the Acquiring Fund
and the Acquired Fund
If any of the conditions set forth below do not exist on or before the
Closing Date with respect to the Acquiring Fund, the Acquired Fund shall,
and if any of such conditions do not exist on or before the Closing Date
with respect to the Acquired Fund, the Acquiring Fund shall, at their
respective option, not be required to consummate the transactions
contemplated by this Agreement.
8.1. The Agreement and the transactions contemplated herein shall have
been approved by the requisite vote of the holders of the outstanding
shares of the Acquired Fund in accordance with the provisions of its
Articles of Incorporation and applicable law and certified copies of the
votes evidencing such approval shall have been delivered to the Acquiring
Fund.8.2. On the Closing Date no action, suit or other proceeding
shall be pending before any court or governmental agency in which it is
sought to restrain or prohibit, or obtain damages or other relief in
connection with, this Agreement or the transactions contemplated herein.
8.3. All consents of other parties and all other consents, orders and
permits of federal, state and local regulatory authorities (including those
of the Commission and of state blue sky and securities authorities,
including "no-action" positions of and exemptive orders from such federal
and state authorities) deemed necessary by the Acquiring Fund or the
Acquired Fund to permit consummation, in all material respects, of the
transactions contemplated hereby shall have been obtained, except where
failure to obtain any such consent, order or permit would not involve a
risk of a material adverse effect on the assets or properties of the
Acquiring Fund or the Acquired Fund, provided that either party hereto may
for itself waive any of such conditions.
8.4. The N-14 Registration Statement and the Acquiring Fund
Registration Statement shall each have become or be effective under the
1933 Act and no stop orders suspending the effectiveness thereof shall
have been issued and, to the best knowledge of the parties hereto, no
investigation or proceeding for that purpose shall have been instituted
or be pending, threatened or contemplated under the 0000 Xxx.
8.5. The parties shall have received a favorable opinion of Xxxxxxx
Xxxx & Xxxxxxxxx, addressed to, and in form and substance satisfactory
to, the Acquired Fund and the Acquiring Fund, substantially to the effect
that for U.S. federal income tax purposes:
(a) The transfer of all of the Acquired Fund's assets to the Acquiring
Fund in exchange for the Acquiring Fund Shares and the assumption by the
Acquiring Fund of the liabilities of the Acquired Fund, and the distribution
of such Acquiring Fund Shares to shareholders of the Acquired Fund in
exchange for their shares of the Acquired Fund, 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 a
reorganization" within the meaning of Section 368(b) of the Code;
(b) no gain or loss will be recognized by the Acquiring Fund on the receipt
of the assets of the Acquired Fund solely in exchange for the Acquiring
Fund Shares and the assumption by the Acquiring Fund of the liabilities of
the Acquired Fund; (c) except for gain or loss regularly attributable to
the termination of the Acquired Fund's taxable year, no gain or loss will
be recognized by the Acquired Fund upon the transfer of the Acquired Fund's
assets to the Acquiring Fund in exchange for the Acquiring Fund Shares and
the assumption by the Acquiring Fund of the liabilities of the Acquired
Fund or upon the distribution of the Acquiring Fund Shares to the Acquired
Fund's shareholders in exchange for their shares of the Acquired Fund;
(d) no gain or loss will be recognized by shareholders of the Acquired Fund
upon the exchange of their Acquired Fund shares for the Acquiring Fund
Shares or upon the assumption by the Acquiring Fund of the liabilities of
the Acquired Fund; (e) the aggregate tax basis of the Acquiring Fund Shares
received by each of the Acquired Fund's shareholders pursuant to the
Reorganization will be the same as the aggregate tax basis of the Acquired
Fund Shares held by such shareholder immediately prior to the
Reorganization, and the holding period of the Acquiring Fund Shares to be
received by each Fund shareholder will include the period during which the
Acquired Fund Shares exchanged therefor were held by such shareholder
(provided that such Acquired Fund Shares were held as capital assets on the
date of the Reorganization); and (f) except for assets which may be
revalued as a consequence of a termination of the Acquired Fund's taxable
year, the tax basis of the Acquired Fund's assets acquired by the Acquiring
Fund will be the same as the tax basis of such assets to the Acquired Fund
immediately prior to the Reorganization and the holding period of the
assets of the Acquired Fund in the hands of the Acquiring Fund will
include the period during which those assets were held by the Acquired
Fund.
Notwithstanding anything herein to the contrary, neither the Acquiring
Fund nor the Acquired Fund may waive the conditions set forth in this
paragraph 8.5.
9. Brokerage Fees and Expenses; Other Agreements
9.1. The Acquiring Fund represents and warrants to the Acquired Fund,
and the Acquired Fund represents and warrants to the Acquiring Fund,
that there are no brokers or finders or other entities to receive any
payments in connection with the transactions provided for herein.
9.2. CSAM or its affiliates agrees to bear the reasonable expenses
incurred in connection with the transactions contemplated by this
Agreement, whether or not consummated (excluding extraordinary expenses
such as litigation expenses, damages and other expenses not normally
associated with transactions of the type contemplated by this Agreement).
These expenses consist of: (i) expenses associated with preparing this
Agreement, the N-14 Registration Statement and expenses of the shareholder
meetings insofar as they relate to approval of this Agreement and the
transactions contemplated thereby; (ii) expenses associated with preparing
and filing the N-14 Registration Statement covering the Acquiring Fund
Shares to be issued in the Reorganization insofar as they relate to
approval of this Agreement and the transactions contemplated thereby;
(iii) registration or qualification fees and expenses of preparing and
filing such forms, if any, necessary under applicable state securities
laws to qualify the Acquiring Fund Shares to be issued in connection with
the Reorganization; (iv) postage; printing; accounting fees; and legal
fees incurred by the Acquiring Fund and by the Acquired Fund in
connection with the transactions contemplated by this Agreement;
(v) solicitation costs incurred in connection with the shareholders
meeting referred to in clause (i) above and paragraph 5.2 hereof insofar
as they relate to approval of this Agreement and the transactions
contemplated thereby and (vi) any other reasonable Reorganization expenses.
9.3. Any other provision of this Agreement to the contrary
notwithstanding, any liability of either Fund under this Agreement,
or in connection with the transactions contemplated herein with respect
to such Fund, shall be discharged only out of the assets of such Fund.
10. Entire Agreement; Survival of Warranties
10.1. The Acquiring Fund and the Acquired Fund agree that neither
party has made any representation, warranty or covenant not set forth
herein and that this Agreement constitutes the entire agreement among
the parties.
10.2. The representations, warranties and covenants contained in this
Agreement or in any document delivered pursuant hereto or in connection
herewith shall survive the consummation of the transactions contemplated
hereunder.
11. Termination
11.1. This Agreement may be terminated at any time at or prior to the
Closing Date by: (1) mutual agreement of the Acquired Fund and the
Acquiring Fund; (2) the Acquired Fund in the event the Acquiring Fund
shall, or the Acquiring Fund, in the event the Acquired Fund shall,
materially breach any representation, warranty or agreement contained
herein to be performed at or prior to the Closing Date; or (3) the
Acquired Fund or the Acquiring Fund in the event a condition herein
expressed to be precedent to the obligations of the terminating party
or parties has not been met and it reasonably appears that it will not
or cannot be met within a reasonable time.
11.2. In the event of any such termination, there shall be no
liability for damages on the part of either the Acquiring Fund, the
Trust or the Acquired Fund, or their respective Trustees, Directors
or officers, to the other party or parties.
12. Amendments
This Agreement may be amended, modified or supplemented in writing in
such manner as may be mutually agreed upon by the authorized officers
of the Acquired Fund and the Acquiring Fund; provided, however, that
following the meeting of the Acquired Fund's shareholders called by the
Acquired Fund pursuant to paragraph 5.2 of this Agreement no such
amendment may have the effect of changing the provisions for determining
the number of the Acquiring Fund Shares to be issued to the Acquired
Fund's Shareholders under this Agreement to the detriment of such
shareholders without their further approval.
13. Notices
13.1. Any notice, report, statement or demand required or permitted by
any provisions of this Agreement shall be in writing and shall be given by
prepaid telegraph, telecopy or certified mail addressed to the Acquiring
Fund at:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxx, Esq.
or to the Acquired Fund at:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxx, Esq.
14. Headings; Counterparts; Governing Law; Assignment; Limitation
of Liability
14.1. The article and paragraph headings contained in this Agreement
are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
14.2. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original.
14.3. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
14.4. This Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns, but no
assignment or transfer hereof or of any rights or obligations hereunder
shall be made by any party without the written consent of the other
party. Except as provided in Section 5.7, nothing herein expressed or
implied is intended or shall be construed to confer upon or give any
person, firm or corporation, other than the parties hereto and their
respective successors and assigns, any rights or remedies under or by
reason of this Agreement.
14.5. Notice is hereby given that this Agreement is entered into on
behalf of the Acquiring Fund by an officer of the Trust, and on behalf
of the Acquired Fund by an officer of the Acquired Fund, in each case
in such officer's capacity as an officer and not individually. It is
understood and expressly stipulated that none of the Directors,
Trustees, officers or shareholders of the Acquired Fund or the Trust
are personally liable hereunder. All persons dealing with the
Acquiring Trust should look solely to the property of the Acquiring
Trust for the enforcement of any claims against the Acquiring Trust.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its Chairman, President, Vice President
or Managing Director and attested to by its Vice President, Secretary
or Assistant Secretary.
CREDIT SUISSE STRATEGIC VALUE FUND, INC.
By:/s/Xxx Xxxxxx
Name: Xxx Xxxxxx
Title: Vice President and Secretary
Attestation By: /s/Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Assistant Secretary
CREDIT SUISSE CAPITAL FUNDS
For and on Behalf of CREDIT SUISSE LARGE CAP VALUE FUND
By: /s/Xxx Xxxxxx
Name: Xxx Xxxxxx
Title: Vice President and Secretary
Attestation By: /s/Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Assistant Secretary
Solely with respect to paragraphs 4.3, 5.9 and 9.2 hereof:
CREDIT SUISSE ASSET MANAGEMENT, LLC
By: /s/Xxx Xxxxxx
Name: Xxx Xxxxxx
Title: Managing Director
Attestation By: /s/Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
