Covenants of the Acquired Fund. 5.1 The Acquired Fund will operate its business in the ordinary course between the date hereof and the Closing Date except as contemplated by this Agreement, it being understood that such ordinary course of business will include the declaration and payment of customary dividends and distributions, and any other distribution that may be advisable. 5.2 The Acquired Fund will call a meeting of the shareholders of the Acquired Fund to consider and vote 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 shall assist the Acquiring Fund in obtaining such information as the Acquiring Fund reasonably requests concerning the holders of the Acquired Fund's shares. 5.5 Subject to the provisions of this Agreement, the Acquired Fund will 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 regarding the Acquired Fund, reasonably necessary for the preparation of a joint proxy statement/prospectus on Form N-14 (the "Joint Proxy Statement/Prospectus"), in compliance with the 1934 Act and the 1940 Act in connection with the meeting of shareholders of the Acquired Fund to consider and vote upon this Agreement and the transactions contemplated herein. 5.7 The Acquired Fund shall use its reasonable best efforts to fulfill or obtain the fulfillment of the conditions precedent to effect the transactions contemplated by this Agreement as promptly as practicable. 5.8 The Acquired Fund covenants that it will, from time to time, as and when reasonably requested by the Acquiring Fund, execute and deliver or cause to be executed and delivered all such assignments and other instruments, and will take or cause to be taken such further action as the Acquiring Fund, may reasonably deem necessary or desirable in order to vest in and confirm (a) Acquired Fund's title to and possession of the Acquiring Fund Shares to be delivered hereunder, and (b) the Acquiring Fund's title to and possession of all the assets, and to carry out the intent and purpose of this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Virtus Total Return Fund Inc.), Agreement and Plan of Reorganization (Virtus Total Return Fund)
Covenants of the Acquired Fund. 5.1 and the Acquiring Fund a) The Acquiring Fund and the Acquired Fund will operate its business their respective businesses in the ordinary course between the date hereof and the Closing Date except as contemplated by this Agreement, it being Date. It is understood that such ordinary course of business will include the declaration and payment of customary dividends and distributions. b) The Trust, and any other distribution that may be advisable. 5.2 The on behalf of the Acquired Fund Fund, will call a meeting of the shareholders of the Acquired Fund to consider and vote act upon this Agreement and to take all other actions necessary to obtain approval of the transactions contemplated herein. 5.3 c) The Acquired Fund covenants that (i) the Acquiring Fund Shares to be issued hereunder are not being acquired for the purpose of making any distribution thereof, thereof other than in accordance with the terms of this Agreement; (ii) to the best of the knowledge of the Acquired Fund, there is no plan or intention by Acquired Fund's Shareholders to sell, exchange or otherwise dispose of a number of Acquired Fund Shares (or Acquiring Fund Shares received in the Reorganization), in connection with the Reorganization, that would reduce the Acquired Fund Shareholders' ownership of Acquired Fund Shares (or equivalent Acquiring Fund Shares) to a number of shares that is less than 50 percent of the number of Acquired Fund Shares as of the record date of the Reorganization; and (iii) the Acquired Fund will not take any position on any federal, state or local income or franchise tax return, or take any other tax reporting position, that is inconsistent with the treatment of the Reorganization as a "reorganization" within the meaning of Section 368(a) of the Code. 5.4 d) The Acquired Fund shall will assist the Acquiring Fund in obtaining such information as the Acquiring Fund reasonably requests concerning the holders beneficial ownership of the Acquired Fund's sharesFund Shares. 5.5 e) Subject to the provisions of this Agreement, the Acquiring Fund and the Trust, on behalf of the Acquired Fund 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 f) The Acquired Fund will provide the Acquiring Fund with information regarding the Acquired Fund, reasonably necessary for the preparation of a joint proxy statement/prospectus on Form N-14 (which will include the "Joint Proxy Statement referred to in paragraph 4.1(o), all to be included in the Registration Statement/Prospectus"), in compliance with the 1933 Act, the 1934 Act and the 1940 Act in connection with the meeting of shareholders of the Acquired Fund Fund's shareholders to consider and vote upon approval of this Agreement and the transactions contemplated herein. g) 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 Trustee or officer ("Indemnified Person") of the Trust, 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 Trustee or officer of the Trust, as such service involves 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 or she 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 or her office. An Indemnified Person seeking indemnification shall be entitled to advances from the Acquiring Fund for payment of the reasonable expenses incurred by him or her in connection with the matter as to which he or she 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 or her 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 directors of the Acquiring Fund, 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. h) The intention of the parties is that the transaction will qualify as a reorganization within the meaning of Section 368(a) of the Code. Neither the Acquiring Fund, nor the Acquired Fund or the Trust shall use its reasonable best efforts take any action, or cause any action to fulfill be taken (including, without limitation, the filing of any tax return) that is inconsistent with such treatment or obtain results in the fulfillment failure of the conditions precedent transaction to qualify as a reorganization within the meaning of Section 368(a) of the Code. At or prior to the Closing Date, the Acquiring Fund, and the Acquired Fund and the Trust will take such action, or cause such action to be taken, as is reasonably necessary to enable Xxxxxxx Xxxx & Xxxxxxxxx LLP to render the tax opinion contemplated here in Section 8.7. i) Credit Suisse agrees that the Acquiring Fund will succeed to all rights that the Acquired Fund has, or would have but for the Reorganization, against Credit Suisse or its affiliates by reason of any act or failure to act by Credit Suisse or any of its affiliates prior to the Closing Date. 6. Conditions Precedent to Obligations of the Trust The obligations of the Trust, on behalf 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: a) 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; b) The Acquiring Fund has delivered to the Trust a certificate executed in its name by its President, Vice President, Secretary or Treasurer 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 as promptly as practicable. 5.8 Agreement; and c) The Trust, on behalf of the Acquired Fund covenants that it willFund, shall have received on the Closing Date a favorable opinion from time Xxxxxxx Xxxx & Xxxxxxxxx, counsel to time, as and when reasonably requested by the Acquiring Fund, execute dated as of the Closing Date, in a form reasonably satisfactory to the Acquired Fund, covering the following points: That (a) the Acquiring Fund is a validly existing corporation under the laws of the State of Maryland, and deliver or cause has the corporate power to be 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 all such assignments by the Acquiring Fund and, assuming due authorization, execution and delivery of the Agreement by the other instrumentsparties hereto, is a valid and binding obligation of the Acquiring 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 take not, conflict with the Acquiring Fund's Charter or cause By-Laws, each, as amended, or result in a material violation of any provision of any material agreement (known to be taken such further action as counsel) to which the Acquiring 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 Acquiring 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 Acquiring Fund of the transactions contemplated herein, except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act, and such as may reasonably deem necessary 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 desirable 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 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 is required to be described in order the N-14 Registration Statement or to vest in be filed as an exhibit to the N-14 Registration Statement which is not described or filed as required or which materially and confirm (a) Acquired adversely affects the Acquiring Fund's title business; (g) 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; (h) the Acquiring 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 possession of effect; and (i) the Acquiring Fund Shares to be delivered hereunder, issued to the Acquired Fund's shareholders as provided by this Agreement are duly authorized and (b) upon such delivery will be validly issued and outstanding and are fully paid and non- assessable and no shareholder of the Acquiring Fund's title Fund has any preemptive rights to subscription or purchase in respect thereof. With respect to all matters of Maryland law, such counsel shall be entitled to state that they have relied upon the opinion of Xxxxxxx LLP and possession that their opinion is subject to the same assumptions, qualifications and limitations with respect to such matters as are contained in the opinion of all Xxxxxxx LLP. In this paragraph 6.3, references to the assetsProxy Statement include and relate only to the text of such Proxy Statement and not, and except as specifically stated above, to carry out the intent and purpose of this Agreementany exhibits or attachments thereto or to any documents incorporated by reference therein. 7.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Credit Suisse Large Cap Blend Fund, Inc.)
Covenants of the Acquired Fund. 5.1 and the Acquiring Fund a) The Acquiring Fund and the Acquired Fund will operate its business their respective businesses in the ordinary course between the date hereof and the Closing Date except as contemplated by this Agreement, it being Date. It is understood that such ordinary course of business will include the declaration and payment of customary dividends and distributions, and any other distribution that may be advisable. 5.2 b) The Acquired Fund will call a meeting of the shareholders of the Acquired Fund to consider and vote act upon this Agreement and to take all other actions necessary to obtain approval of the transactions contemplated herein. 5.3 c) The Acquired Fund covenants that (i) the Acquiring Fund Shares to be issued hereunder are not being acquired for the purpose of making any distribution thereof, thereof other than in accordance with the terms of this Agreement; (ii) to the best of the knowledge of the Acquired Fund, there is no plan or intention by Acquired Fund's Shareholders to sell, exchange or otherwise dispose of a number of Acquired Fund Shares (or Acquiring Fund Shares received in the Reorganization), in connection with the Reorganization, that would reduce the Acquired Fund Shareholders' ownership of Acquired Fund Shares (or equivalent Acquiring Fund Shares) to a number of shares that is less than 50 percent of the number of Acquired Fund Shares as of the record date of the Reorganization; and (iii) the Acquired Fund will not take any position on any federal, state or local income or franchise tax return, or take any other tax reporting position, that is inconsistent with the treatment of the Reorganization as a "reorganization" within the meaning of Section 368(a) of the Code. 5.4 d) The Acquired Fund shall will assist the Acquiring Fund in obtaining such information as the Acquiring Fund reasonably requests concerning the holders beneficial ownership of the Acquired Fund's sharesFund Shares. 5.5 e) 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 f) The Acquired Fund will provide the Acquiring Fund with information regarding the Acquired Fund, reasonably necessary for the preparation of a joint proxy statement/prospectus on Form N-14 (which will include the "Joint Proxy Statement referred to in paragraph 4.1(o), all to be included in the Registration Statement/Prospectus"), in compliance with the 1933 Act, the 1934 Act and the 1940 Act in connection with the meeting of shareholders of the Acquired Fund Fund's shareholders to consider and vote upon approval of this Agreement and the transactions contemplated herein. g) 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 Trustee 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 Trustee or officer of the Acquired Fund, as such service involves 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 or she 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 or her office. An Indemnified Person seeking indemnification shall be entitled to advances from the Acquiring Fund for payment of the reasonable expenses incurred by him or her in connection with the matter as to which he or she 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 or her 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 directors of the Acquiring Fund, 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. h) The intention of the parties is that the transaction will qualify as a reorganization within the meaning of Section 368(a) of the Code. Neither the Acquiring Fund, nor the Acquired Fund shall use its reasonable best efforts take any action, or cause any action to fulfill be taken (including, without limitation, the filing of any tax return) that is inconsistent with such treatment or obtain results in the fulfillment failure of the conditions precedent transaction to qualify as a reorganization within the meaning of Section 368(a) of the Code. At or prior to the Closing Date, the Acquiring Fund, and the Acquired Fund and the Trust will take such action, or cause such action to be taken, as is reasonably necessary to enable Xxxxxxx Xxxx & Xxxxxxxxx LLP to render the tax opinion contemplated here in Section 8.7. i) Credit Suisse agrees that the Acquiring Fund will succeed to all rights that the Acquired Fund has, or would have but for the Reorganization, against Credit Suisse or its affiliates by reason of any act or failure to act by Credit Suisse 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: a) 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; b) The Acquiring Fund has delivered to the Acquired Fund a certificate executed in its name by its President, Vice President, Secretary or Treasurer 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 as promptly as practicable. 5.8 Agreement; and c) The Acquired Fund covenants that it willshall have received on the Closing Date a favorable opinion from Xxxxxxx Xxxx & Xxxxxxxxx, from time counsel to time, as and when reasonably requested by the Acquiring Fund, execute dated as of the Closing Date, in a form reasonably satisfactory to the Acquired Fund, covering the following points: That (a) the Acquiring Fund is a validly existing corporation under the laws of the State of Maryland, and deliver or cause has the corporate power to be 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 all such assignments by the Acquiring Fund and, assuming due authorization, execution and delivery of the Agreement by the other instrumentsparties hereto, is a valid and binding obligation of the Acquiring 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 take not, conflict with the Acquiring Fund's Charter or cause By-Laws, each, as amended, or result in a material violation of any provision of any material agreement (known to be taken such further action as counsel) to which the Acquiring 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 Acquiring 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 Acquiring Fund of the transactions contemplated herein, except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act, and such as may reasonably deem necessary 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 desirable 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 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 is required to be described in order the N-14 Registration Statement or to vest in be filed as an exhibit to the N-14 Registration Statement which is not described or filed as required or which materially and confirm (a) Acquired adversely affects the Acquiring Fund's title business; (g) 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; (h) the Acquiring 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 possession of effect; and (i) the Acquiring Fund Shares to be delivered hereunder, issued to the Acquired Fund's shareholders as provided by this Agreement are duly authorized and (b) upon such delivery will be validly issued and outstanding and are fully paid and non- assessable and no shareholder of the Acquiring Fund's title Fund has any preemptive rights to subscription or purchase in respect thereof. With respect to all matters of Maryland law, such counsel shall be entitled to state that they have relied upon the opinion of Xxxxxxx LLP and possession that their opinion is subject to the same assumptions, qualifications and limitations with respect to such matters as are contained in the opinion of all Xxxxxxx LLP. In this paragraph 6.3, references to the assetsProxy Statement include and relate only to the text of such Proxy Statement and not, and except as specifically stated above, to carry out the intent and purpose of this Agreementany exhibits or attachments thereto or to any documents incorporated by reference therein. 7.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Credit Suisse Large Cap Blend Fund, Inc.)
Covenants of the Acquired Fund. 5.1 and the Acquiring Fund a) The Acquiring Fund and the Acquired Fund will operate its business their respective businesses in the ordinary course between the date hereof and the Closing Date except as contemplated by this Agreement, it being Date. It is understood that such ordinary course of business will include the declaration and payment of customary dividends and distributions, and any other distribution that may be advisable. 5.2 b) The Acquired Fund will call a meeting of the shareholders of the Acquired Fund to consider and vote act upon this Agreement and to take all other actions necessary to obtain approval of the transactions contemplated herein. 5.3 c) The Acquired Fund covenants that (i) the Acquiring Fund Shares to be issued hereunder are not being acquired for the purpose of making any distribution thereof, thereof other than in accordance with the terms of this Agreement; (ii) to the best of the knowledge of the Acquired Fund, there is no plan or intention by Acquired Fund's Shareholders to sell, exchange or otherwise dispose of a number of Acquired Fund Shares (or Acquiring Fund Shares received in the Reorganization), in connection with the Reorganization, that would reduce the Acquired Fund Shareholders' ownership of Acquired Fund Shares (or equivalent Acquiring Fund Shares) to a number of shares that is less than 50 percent of the number of Acquired Fund Shares as of the record date of the Reorganization; and (iii) the Acquired Fund will not take any position on any federal, state or local income or franchise tax return, or take any other tax reporting position, that is inconsistent with the treatment of the Reorganization as a "reorganization" within the meaning of Section 368(a) of the Code. 5.4 d) The Acquired Fund shall will assist the Acquiring Fund in obtaining such information as the Acquiring Fund reasonably requests concerning the holders beneficial ownership of the Acquired Fund's sharesFund Shares. 5.5 e) 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 f) The Acquired Fund will provide the Acquiring Fund with information regarding the Acquired Fund, reasonably necessary for the preparation of a joint proxy statement/prospectus on Form N-14 (which will include the "Joint Proxy Statement referred to in paragraph 4.1(o), all to be included in the Registration Statement/Prospectus"), in compliance with the 1933 Act, the 1934 Act and the 1940 Act in connection with the meeting of shareholders of the Acquired Fund Fund's shareholders to consider and vote upon approval of this Agreement and the transactions contemplated herein. g) 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, as such service involves 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 or she 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 or her office. An Indemnified Person seeking indemnification shall be entitled to advances from the Acquiring Fund for payment of the reasonable expenses incurred by him or her in connection with the matter as to which he or she 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 or her 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 directors of the Acquiring Fund, 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. h) The intention of the parties is that the transaction will qualify as a reorganization within the meaning of Section 368(a) of the Code. Neither the Acquiring Fund, nor the Acquired Fund shall use its reasonable best efforts take any action, or cause any action to fulfill be taken (including, without limitation, the filing of any tax return) that is inconsistent with such treatment or obtain results in the fulfillment failure of the conditions precedent transaction to qualify as a reorganization within the meaning of Section 368(a) of the Code. At or prior to the Closing Date, the Acquiring Fund, and the Acquired Fund and the Trust will take such action, or cause such action to be taken, as is reasonably necessary to enable Xxxxxxx Xxxx & Xxxxxxxxx LLP to render the tax opinion contemplated here in Section 8.7. i) Credit Suisse agrees that the Acquiring Fund will succeed to all rights that the Acquired Fund has, or would have but for the Reorganization, against Credit Suisse or its affiliates by reason of any act or failure to act by Credit Suisse 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: a) 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; b) The Acquiring Fund has delivered to the Acquired Fund a certificate executed in its name by its President, Vice President, Secretary or Treasurer 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 as promptly as practicable. 5.8 Agreement; and c) The Acquired Fund covenants that it willshall have received on the Closing Date a favorable opinion from Xxxxxxx Xxxx & Xxxxxxxxx, from time counsel to time, as and when reasonably requested by the Acquiring Fund, execute dated as of the Closing Date, in a form reasonably satisfactory to the Acquired Fund, covering the following points: That (a) the Acquiring Fund is a validly existing corporation under the laws of the State of Maryland, and deliver or cause has the corporate power to be 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 all such assignments by the Acquiring Fund and, assuming due authorization, execution and delivery of the Agreement by the other instrumentsparties hereto, is a valid and binding obligation of the Acquiring 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 take not, conflict with the Acquiring Fund's Charter or cause By-Laws, each, as amended, or result in a material violation of any provision of any material agreement (known to be taken such further action as counsel) to which the Acquiring 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 Acquiring 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 Acquiring Fund of the transactions contemplated herein, except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act, and such as may reasonably deem necessary 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 desirable 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 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 is required to be described in order the N-14 Registration Statement or to vest in be filed as an exhibit to the N-14 Registration Statement which is not described or filed as required or which materially and confirm (a) Acquired adversely affects the Acquiring Fund's title business; (g) 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; (h) the Acquiring 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 possession of effect; and (i) the Acquiring Fund Shares to be delivered hereunder, issued to the Acquired Fund's shareholders as provided by this Agreement are duly authorized and (b) upon such delivery will be validly issued and outstanding and are fully paid and non- assessable and no shareholder of the Acquiring Fund's title Fund has any preemptive rights to subscription or purchase in respect thereof. With respect to all matters of Maryland law, such counsel shall be entitled to state that they have relied upon the opinion of Xxxxxxx LLP and possession that their opinion is subject to the same assumptions, qualifications and limitations with respect to such matters as are contained in the opinion of all Xxxxxxx LLP. In this paragraph 6.3, references to the assetsProxy Statement include and relate only to the text of such Proxy Statement and not, and except as specifically stated above, to carry out the intent and purpose of this Agreementany exhibits or attachments thereto or to any documents incorporated by reference therein. 7.
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Samples: Agreement and Plan of Reorganization (Credit Suisse Large Cap Blend Fund, Inc.)