SUB-ITEM 77Q1: Exhibits
(g) Agreement and Plan of Reorganization of the Fund and Global
Health Sciences Fund, Inc.
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is
made as of this 11th day of April, 2003, between and among
Credit Suisse Global Post-Venture Capital Fund, Inc., a Maryland
corporation (the "Acquiring Fund"), Credit Suisse Global Health
Sciences 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 Class A
shares (collectively, the "Shares") of the Acquiring Fund, and
the assumption by the Acquiring Fund 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.
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 Directors 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 attributable to each 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; 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 applicable 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
prospectus or statement of additional information.
2.2. The number of Class A Shares of the Acquiring Fund to
be issued (including fractional shares, if any) in exchange
for Common Class and Class A shares of the Acquired Fund shall
be determined by dividing the value of the net assets of the
Acquired Fund attributable to its Common Class and Class A shares
determined using the same valuation procedures referred to in
paragraph 2.1 by the net asset value per Share of the Class A
shares 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
prospectus 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
September 26, 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
By-Laws 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, including
the Investment Portfolio, Statement of Operations and Changes
in Net Assets, and the Financial Highlights of the Acquired
Fund at August 31, 2002 and for the period from December 31,
1996 to August 31, 2002 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 such dates
not disclosed therein;
(g) Since August 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 National Association of Securities
Dealers, 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 organized, validly
existing corporation in good standing under the laws of
the State of Maryland;
(b) The Acquiring Fund 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 the Acquiring Fund's Articles of
Incorporation 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 non-assessable. 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 Directors,
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
non-assessable;
(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 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 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 (collectively, the "Disinterested
Directors"), 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 Acquiring Fund 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 Acquiring Fund is a validly existing
corporation and in good standing under the laws of the
State of Maryland, and has the corporate 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 Acquiring Fund and, assuming due
authorization, execution and delivery of the Agreement
by the other parties thereto, is a valid and binding
obligation of the Acquiring Fund 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 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 Acquiring 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
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; (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 State of Maryland
is required for the consummation by the Acquiring
Fund 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 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 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 Maryland law, such counsel
shall be entitled to state that, with the approval of
the Acquired 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 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 Directors of the Acquiring Fund,
including a majority of the directors 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 corporate 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 enforceable against 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 August 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
the Acquired Fund's 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 Acquired 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 or the Acquired Fund, or their
respective 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.
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 Acquiring Fund 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, officers or
shareholders of the Acquiring Fund or the Acquired Fund
are personally liable hereunder.
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 GLOBAL POST-VENTURE CAPITAL 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 GLOBAL HEALTH SCIENCES 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
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: Director
SUB-ITEM 77Q1: Exhibits
(g) Agreement and Plan of Reorganization of the Fund
and Credit Suisse Global Technology Fund, Inc.
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement")
is made as of this 11th day of April, 2003, between and
among Credit Suisse Global Post-Venture Capital Fund, Inc.,
a Maryland corporation (the "Acquiring Fund"), Credit Suisse
Global Technology Fund, Inc., a Maryland corporation (the
"Acquired Fund"), and, solely for purposes of Sections 4.3,
5.9, 9.2 and 9.3 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 Class
A shares (collectively, the "Shares") of the Acquiring Fund,
and the assumption by the Acquiring Fund 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.
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 Directors 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
attributable to each 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; 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 securitiesother 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 applicable 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
prospectus or statement of additional information.
2.2. The number of Class A Shares of the Acquiring Fund to
be issued (including fractional shares, if any) in exchange for
Common Class and Class A shares of the Acquired Fund shall be
determined by dividing the value of the net assets of the
Acquired Fund attributable to its Common Class and Class A
shares determined using the same valuation procedures referred
to in paragraph 2.1 by the net asset value per Share of the
Class A shares 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 prospectus 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
October 10, 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 By-Laws 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 aspreviously 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 judgmentof 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, including the
Investment Portfolio, Statement of Operations and Changes in
Net Assets, and the Financial Highlights of the Acquired Fund
at August 31, 2002 and for the period from August 31, 1998 to
August 31, 2002 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 such dates not disclosed therein;
(g) Since August 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 National Association of Securities Dealers, 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 oromit 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 organized, validly existing
corporation in good standing under the laws of the State of
Maryland;
(b) The Acquiring Fund 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 the Acquiring Fund's Articles of Incorporation 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
non-assessable. 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 Directors, 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 non-assessable;
(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 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
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 (collectively, the
"Disinterested Directors"), 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 Acquiring Fund 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 Acquiring Fund is a validly existing corporation
and in good standing under the laws of the State of Maryland,
and has the corporate 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 Acquiring Fund and, assuming due
authorization, execution and delivery of the Agreement by the
other parties thereto, is a valid and binding obligation of the
Acquiring Fund 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 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
Acquiring 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 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; (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 State of Maryland is required for the consummation
by the Acquiring Fund 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 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
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 Maryland law, such counsel shall
be entitled to state that, with the approval of the Acquired
Fund, they have relied upon the opinion of Xxxxxxx, Xxxxxxx 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 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 Directors of the Acquiring Fund, including
a majority of the directors 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 corporate 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
enforceable against 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 ofany 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 e
ach 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
tatements of the Acquired Fund as of and for the fiscal year
ended August 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 the Acquired Fund's 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
68(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 Acquired 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.
8.6. (a) The approval of the receipt or retention of
investment advisory fees paid or payable to CSAM from April 18,
2000 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 the Acquired Fund's Articles
of Incorporation and applicable law and certified copies of the
votes evidencing such approval shall have been delivered to each
Fund; or
(b) the Board of Directors of the Acquired Fund has
irrevocably waived any and all right it may have to seek
rescission of the advisory contract between the Fund and CSAM
dated December, 3, 1998 (the "Contract") or to recoup amounts
paid or payable under the Contract; or
(c) CSAM has irrevocably waived any and all right
it may have to receive or retain amounts paid or payable under
the Contract.
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. (a) CSAM agrees to indemnify and hold harmless each
person who at the time of execution of this Agreement is a
director or officer of the Acquired Fund (a "CSAM Indemnified
Party") from and against any and all direct and indirect
liabilities, losses, claims, damages and expenses (including,
without limitation, reasonable attorneys' fees) ("Losses")
incurred by a CSAM Indemnified Party and that arise from or
relate to the retention of investment advisory fees paid or
payable to CSAM from April 18, 2000 until the Closing Date.
(b) CSAM's agreement to indemnify the CSAM
Indemnified Parties pursuant to this paragraph 9.3 is expressly
conditioned upon CSAM's being promptly notified of any action or
claim brought against any such party after the CSAM Indemnified
Party receives notice of the action. The failure of the CSAM
Indemnified Party to notify CSAM shall not relieve CSAM from
any liability that CSAM may have otherwise than on account of
this indemnification agreement.
(c) In case any action or claim shall be brought
against any CSAM Indemnified Party and it shall timely notify
CSAM of the commencement thereof, CSAM shall be entitled to
participate in, and, to the extent that it shall wish to do so,
to assume the defense thereof with counsel satisfactory to it.
If CSAM opts to assume the defense of such action, CSAM will not
be liable to the CSAM Indemnified Party for any legal or other
expenses subsequently incurred by the CSAM Indemnified Party in
connection with the defense thereof other than (1) reasonable
costs of investigation or the furnishing of documents or
witnesses and (2) all reasonable fees and expenses of separate
counsel to such CSAM Indemnified Party if the CSAM Indemnified
Party shall have concluded reasonably that representation of
CSAM and the CSAM Indemnified Party by the same counsel would
be inappropriate due to actual or potential differing interests
between them in the conduct of the defense of such action.
9.4. 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
iability for damages on the part of either the Acquiring Fund or
the Acquired Fund, or their respective 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. 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
Acquiring Fund 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, officers or
shareholders of the Acquiring Fund or the Acquired Fund are
personally liable hereunder.
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 GLOBAL POST-VENTURE CAPITAL 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 GLOBAL TECHNOLOGY 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
Solely with respect to paragraphs 4.3, 5.9, 9.2 and 9.3 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: Director
