AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made
as of this 23rd day of March, 2007, by Credit Suisse Trust
(the "Trust") on behalf of its series, the Credit Suisse Small Cap
Core II Portfolio (the "Acquired Fund") and the Credit Suisse Small
Cap Core I Portfolio (the "Acquiring Fund") (the Acquired Fund and
Acquiring Fund, collectively, the "Funds"), and, solely for purposes
of Sections 4.2, 5.7 and 8.2 hereof, Credit Suisse Asset Management,
LLC, a limited liability company organized under the laws of the
State of Delaware ("Credit Suisse").
This Agreement is intended to be and is adopted as a plan of
reorganization within the meaning of Section 368(a) of the 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 (collectively, the "Shares")
of the Acquiring Fund and the assumption by the Acquiring Fund of all
of the 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 Funds are each series of the Trust, all parties to this Agreement
acknowledge and accept that each 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 each 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, each Fund.
WHEREAS, the Board of Trustees of the Trust, on behalf 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 Trust, on behalf 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 Acquiring Fund Shares,
including fractional Acquiring Fund Shares, determined by dividing the
value of the Acquired Fund's net assets, 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; 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 5.5 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 Shares of the Acquiring Fund to be issued (including
fractional shares, if any) in exchange for shares of beneficial interest
of the Acquired Fund shall be determined by dividing the value of the
net assets of the Acquired Fund attributable to its shares of beneficial
interest determined using the same valuation procedures referred to in
paragraph 2.1 by the net asset value per Share 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 27, 2007,
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 3:00 p.m., at the offices of Xxxxxxx Xxxx & Xxxxxxxxx LLP 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 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 of outstanding Shares owned by each such shareholder
immediately prior to the Closing or provide such information 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 Trust 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, the Trust, on behalf of the Funds, shall deliver to
counsel any bills of sale, checks, assignments, share certificates,
if any, receipts or other documents as counsel may request.
4. Representations and Warranties
4.1. The Trust, on behalf of each Fund, represents and warrants
that:
(a) The Funds are not, and the execution, delivery and performance
of this Agreement by the Trust will not result, in a violation of
the Trust's Declaration of Trust, as amended, or By-Laws or any
material agreement, indenture, instrument, contract, lease or other
undertaking to which the Trust, on behalf of the Funds, is a party
or by which the Funds or their property are bound;(b) 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;
(c) The Trust 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;
(d) 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 Funds or any of their
properties or assets which, if adversely determined, would materially
and adversely affect their financial condition or the conduct of
their business. The Funds know of no facts which might form the
basis for the institution of such proceedings and are 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
their business or their ability to consummate the transactions
contemplated herein;(e) The Statements of Assets and Liabilities of
the Acquired Fund as of December 31, 2006, 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
registered public 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 March 23, 2007 not disclosed therein.
(f) Since December 31, 2006 there has not been any material
adverse change in each Fund's financial condition, assets,
liabilities or business other than changes occurring in the ordinary
course of business, or any incurrence by a Fund of indebtedness
maturing more than one year from the date such indebtedness was
incurred. For purposes of this subsection (f), a decline in net
asset value per share of a Fund due to declines in market values of
securities in a Fund's portfolio, the discharge of Fund liabilities,
or the redemption of Fund shares by Fund shareholders shall not
constitute a material adverse change;
(g) At the date hereof and at the Closing Date, all federal
and other tax returns and reports, including extensions, of each
Fund required by law to have been filed by such dates shall have
been filed and are or will be correct in all material respects,
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 each Fund's knowledge, no such return is currently under
audit and no assessment has been asserted with respect to such
returns;
(h) (i) For each taxable year of its operation (including the
taxable year ending on the Closing Date), each 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 and has been eligible to and has computed its federal income tax
under Section 852 of the Code and (ii) the Acquired Fund will have
distributed all of its investment company taxable income and net
capital gain (as defined in the Code) that has accrued through the
Closing Date, and the Acquiring Fund will do so for the taxable year
including the Closing Date;
(i) All of the issued and outstanding shares of beneficial
interest 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. Each Fund does not
have outstanding any options, warrants or other rights to subscribe
for or purchase any of its shares, nor is there outstanding any
security convertible into any of its shares;
(j) At the Closing Date, (i) the Acquiring Fund will have good
and marketable title to its assets and (ii) 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. 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;
(k) The information to be furnished by the Acquiring Fund and
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;
(l) The current prospectuses and statements of additional
information of the Acquiring Fund and Acquired Fund on Form N-1A
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;
(m) Insofar as the following relate to the Funds, the registration
statement
filed by the Trust on behalf of 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; 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.
4.2. Credit Suisse represents and warrants to the Acquiring Fund as
follows: To the knowledge of Credit Suisse (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
Credit Suisse 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 Trust, on behalf of 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 (i) 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; (ii) to the best of the knowledge of the Acquired Fund, there
is no plan or intention by Acquired Fund's Shareholder 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.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.
5.5.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 5.5 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 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.
5.6.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, the Acquired Fund nor the Trust shall take
any action, or cause any action to be taken (including, without
limitation, the filing of any tax return) that is inconsistent with
such treatment or results in the failure of the 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, 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 7.6.
0.0.Xxxxxx 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 Funds, to consummate
the transactions provided for herein shall be subject, at its election,
to the performance by the Trust, on behalf of the Funds, 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 by the Trust, the Acquired Fund
or 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 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;
6.2.The Trust has delivered, on behalf of each Fund, a certificate
executed in its name by its Chairman, President, Vice President,
Secretary or Treasurer and dated as of the Closing Date, to the
effect that the representations and warranties of the Trust 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;
6.3.The Trust, on behalf of the Funds, shall have received on the
Closing Date a favorable opinion from Xxxxxxx Xxxx & Xxxxxxxxx LLP,
counsel to the Trust, dated as of the Closing Date, 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 the properties and assets of each of the Funds 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
Funds are duly established series of the Trust and, assuming due
authorization, execution and delivery of the Agreement by Credit
Suisse, is a valid and binding obligation of the Trust 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 Trust's Declaration of Trust or By-Laws, each, as
amended, or result in a material violation of any provision of any
material agreement (known to such counsel) to which the Trust, on
behalf of each 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 a 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
Commonwealth of Massachusetts 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
Trust, on behalf of each 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 affects the Funds'
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 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 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 non-assessable and
no shareholder of the Acquiring Fund has any preemptive rights to
subscription or purchase in respect thereof.
With respect to all matters of Massachusetts law, such counsel shall be
entitled to state that 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.
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.Each Fund shall have received from PricewaterhouseCoopers LLP
a letter addressed to that Fund dated as of the effective date of the
N-14 Registration Statement in form and substance satisfactory to the
Fund, to the effect that:
(a)they are independent public auditors with respect to each 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 each 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.
6.5.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 the Trust, on behalf
of each Fund, having responsibility for financial and reporting matters
and such information is in agreement with such records, schedules or
computations made therefrom.
6.6.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 6.5.
7.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 Funds, the Trust shall not be required
to consummate the transactions contemplated by this Agreement.
7.1.The Agreement and the transactions contemplated herein shall have
been approved by the requisite vote of the holders of the outstanding
shares of beneficial interest of the Acquired Fund in accordance with
the provisions of the Trust's Declaration of Trust, as amended, and
applicable law and certified copies of the votes evidencing such approval
shall have been delivered to the Acquiring Fund.
7.2.The Board of Trustees of the Trust, including a majority of the
trustees who are not "interested persons" of the Trust (as defined by
the 1940 Act), shall have determined that this Agreement and the
transactions contemplated hereby are in the best interests of each Fund
and that the interests of the shareholders in each Fund would not be
diluted as a result of such transactions.
7.3.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.
7.4.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 Trust 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.
7.5.The N-14 Registration Statement and the prospectus and statement of
additional information filed as part of the Acquiring Fund's registration
statement on Form N-1A 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.
7.6.The Trust shall have received on the Closing Date an opinion of Xxxxxxx
Xxxx & Xxxxxxxxx LLP, addressed to, and in form and substance reasonably
satisfactory to, the Acquired Fund and the Acquiring Fund and dated as
of the Closing Date, 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, followed by
the distribution by the Acquired Fund of such Acquiring Fund Shares to
shareholders of the Acquired Fund in complete liquidation of the Acquired
Fund, all pursuant to the Agreement, will constitute a "reorganization"
within the meaning of Section 368(a) of the Code, and the Acquiring Fund
and the Acquired Fund will each be a "party to 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
of beneficial interest 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 of beneficial interest held by such shareholder
immediately prior to the Reorganization, and the holding period of the
Acquiring Fund Shares to be received by each Acquired Fund shareholder
will include the period during which the Acquired Fund shares of
beneficial interest exchanged therefor were held by such shareholder
(provided that such Acquired Fund shares of beneficial interest 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 7.6.
8.Brokerage Fees and Expenses; Other Agreements
8.1.Each Fund represents and warrants that there are no brokers or
finders or other entities to receive any payments in connection with
the transactions provided for herein.
0.0.Xxxxxx Suisse 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.
8.3.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.
9.Entire Agreement; Survival of Warranties
9.1.The Trust, on behalf of the Acquiring Fund and the Acquired Fund,
agrees that it has not made any representation, warranty or covenant
not set forth herein and that this Agreement constitutes the entire
agreement.
9.2.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.
10.Termination
This Agreement may be terminated at any time at or prior to the
Closing Date by a vote of a majority of the Board of Trustees of
the Trust.
11.Amendments
This Agreement may be amended, modified or supplemented in writing
in such manner agreed upon by the authorized officers of the Trust;
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.
12.Notices
12.1.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:
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: J. Xxxxx Xxx, Esq.
or to the Acquired Fund at:
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: J. Xxxxx Xxx, Esq.
13.Headings; Counterparts; Governing Law; Assignment; Limitation of
Liability
13.1.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.
13.2.This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original.
13.3.This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
13.4.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 5.5, 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.
13.5.Notice is hereby given that this Agreement is entered into on
behalf of each Fund by an officer of the Trust, in each case in such
officer's capacity as an officer and not individually. It is
understood and expressly stipulated that none of the Trustees,
officers or shareholders of the Funds are personally liable hereunder.
All persons dealing with the Acquired Fund should look solely to the
property of the Acquired Fund for the enforcement of any claims
against the Acquired Fund.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its Chairman, President, Vice President
or Managing Trustee and attested to by its Vice President, Secretary
or Assistant Secretary.
CREDIT SUISSE TRUST
For and on Behalf of CREDIT SUISSE SMALL CAP CORE I PORTFOLIO AND
CREDIT SUISSE SMALL CAP CORE II PORTFOLIO
By: /s/J. Xxxxx Xxx
Name: J. Xxxxx Xxx
Title: Vice President and Secretary
Attestation By: /s/Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Assistant Secretary
Solely with respect to paragraphs 4.2, 5.7 and 8.2 hereof:
CREDIT SUISSE ASSET MANAGEMENT, LLC
By: /s/Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Director
Attestation By: /s/Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Assistant Secretary
