AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as of this
10th day of March, 2003, between and among Credit Suisse International Focus
Fund, Inc., a Maryland corporation (the "Acquiring Fund"), and Credit Suisse
Opportunity Funds, a Delaware statutory business trust (the "Trust"), for and on
behalf of its series, Credit Suisse International Fund (the "Acquired Fund"),
and, solely for purposes of Sections 4.3, 5.9 and 9.2 hereof, Credit Suisse
Asset Management, LLC, a limited liability company organized under the laws of
the State of Delaware ("CSAM").
This Agreement is intended to be and is adopted as a plan of reorganization
within the meaning of Section 368(a) of the United States Internal Revenue Code
of 1986, as amended (the "Code"). The reorganization of the Acquired Fund
(collectively, the "Reorganization") will consist of the transfer of all of the
assets of the Acquired Fund in exchange solely for shares of the applicable
class or classes of common stock (collectively, the "Shares") of the Acquiring
Fund, and the assumption by the Acquiring Fund of liabilities of the Acquired
Fund, and the distribution, on or after the Closing Date hereinafter referred
to, of Shares of the Acquiring Fund ("Acquiring Fund Shares") to the
shareholders of the Acquired Fund in liquidation of the Acquired Fund as
provided herein, all upon the terms and conditions hereinafter set forth in this
Agreement.
As the Acquired Fund is a series of the Trust, all parties to this Agreement
acknowledge and accept that the Acquired Fund does not have a Board of Trustees
or officers separate from the other series of the Trust. Accordingly, all
representations, warranties, covenants and/or other obligations of any kind made
by the Acquired Fund in this Agreement are expressly understood by all parties
to this Agreement as being made by the Trustees or officers of the Trust, as
applicable, in their respective capacities as Trustees or officers (and not in
their individual capacities) for, and on behalf of, the Acquired Fund.
WHEREAS, the Board of Trustees 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 each class of the Acquiring Fund Shares, including fractional
Acquiring Fund Shares, of each class of the Acquired Fund determined by dividing
the value of the Acquired Fund's net assets attributable to each such class of
shares, computed in the manner and as of the time and date set forth in
paragraph 2.1, by the net asset value of one Acquiring Fund Share of the
applicable class; and (ii) to assume the liabilities of the Acquired Fund, as
set forth in paragraph 1.3. Such transactions shall take place at the closing
provided for in paragraph 3.1 (the "Closing").
1.2. (a) The assets of the Acquired Fund to be acquired by the Acquiring Fund
shall consist of all property including, without limitation, all cash,
securities and dividend or interest receivables that are owned by or owed to the
Acquired Fund and any deferred or prepaid expenses shown as an asset on the
books of the Acquired Fund on the Closing date provided in paragraph 3.1 (the
"Closing Date").
(b) The Acquired Fund has provided the Acquiring Fund with a list of all of
the Acquired Fund's assets as of the date of execution of this Agreement. The
Acquired Fund reserves the right to sell any of these securities but will not,
without the prior approval of the Acquiring Fund, acquire any additional
securities other than securities of the type in which the Acquiring Fund is
permitted to invest. The Acquired Fund will, within a reasonable time prior to
the Closing Date, furnish the Acquiring Fund with a list of the securities, if
any, on the Acquired Fund's list referred to in the first sentence of this
paragraph which do not conform to the Acquiring Fund's investment objective,
policies and restrictions. In the event that the Acquired Fund holds any
investments which the Acquiring Fund may not hold, the Acquired Fund will
dispose of such securities prior to the Closing Date. In addition, if it is
determined that the portfolios of the Acquired Fund and the Acquiring Fund,
when aggregated, would contain investments exceeding certain percentage
limitations imposed upon the Acquiring Fund with respect to such investments,
the Acquired Fund, if requested by the Acquiring Fund, will dispose of and/or
reinvest a sufficient amount of such investments as may be necessary to avoid
violating such limitations as of the Closing Date.
1.3. The Acquired Fund will endeavor to discharge all of the known
liabilities and obligations of the Acquired Fund prior to the Closing Date,
other than those liabilities and obligations which would otherwise be discharged
at a later date in the ordinary course of business. The Acquiring Fund shall
assume all liabilities, expenses, costs, charges and reserves, including those
liabilities reflected on unaudited statements of assets and liabilities of the
Acquired Fund and the Acquiring Fund prepared by State Street Bank and Trust
Company ("State Street"), the accounting agent of each Fund, as of the Valuation
Date (as defined in paragraph 2.1), in accordance with generally accepted
accounting principles consistently applied from the prior audited period. The
Acquiring Fund shall also assume any liabilities, expenses, costs or charges
incurred by or on behalf of the Acquired Fund specifically arising from or
relating to the operations and/or transactions of the Acquired Fund prior to and
including the Closing Date but which are not reflected on the above-mentioned
statement of assets and liabilities, including any liabilities, expenses, costs
or charges arising under paragraph 5.7 hereof.
1.4. As soon on or after the Closing Date as is conveniently practicable (the
"Liquidation Date"), the Acquired Fund will liquidate and distribute pro rata to
the Acquired Fund's shareholders of record determined as of the close of
business on the Closing Date (the "Fund Shareholders") the Acquiring Fund Shares
it receives pursuant to paragraph 1.1. Such liquidation and distribution will
be accomplished by the transfer of the Acquiring Fund Shares then credited to
the account of the Acquired Fund on the books of the Acquiring Fund to open
accounts on the share records of the Acquiring Fund in the name of the Acquired
Fund's shareholders representing the respective pro rata number of the Acquiring
Fund Shares due such shareholders. All issued and outstanding shares of the
Acquired Fund will simultaneously be canceled on the books of the Acquired Fund,
although share certificates representing interests in the Acquired Fund will
represent a number of Acquiring Fund Shares after the Closing Date as determined
in accordance with Section 2.2. The Acquiring Fund shall not issue certificates
representing the Acquiring Fund Shares in connection with such exchange.
1.5. Ownership of Acquiring Fund Shares will be shown on the books of the
Acquiring Fund's transfer agent. Shares of the Acquiring Fund will be issued
in the manner described in the Acquiring Fund's current prospectuses and
statement of additional information.
1.6. Any transfer taxes payable upon issuance of the Acquiring Fund Shares in
a name other than the registered holder of the Acquired Fund Shares on the books
of the Acquired Fund as of that time shall, as a condition of such issuance and
transfer, be paid by the person to whom such Acquiring Fund Shares are to be
issued and transferred.
1.7. Any reporting responsibility of the Acquired Fund is and shall remain
the responsibility of the Acquired Fund up to and including the 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, Class B, Class C and Class A Shares of the
Acquiring Fund to be issued (including fractional shares, if any) in exchange
for Class A, Class B, Class C and Common Class shares, respectively, of the
Acquired Fund shall be determined by dividing the value of the net assets of the
Acquired Fund attributable to its respective Class A, Class B, Class C and
Common Class shares determined using the same valuation procedures referred to
in paragraph 2.1 by the net asset value per Share of the Class A, Class B, Class
C or Class A shares, respectively, of the Acquiring Fund computed as of the
close of regular trading on the NYSE on the Closing Date, using the valuation
procedures set forth in the Acquiring Fund's then current 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 April 25, 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 established series of the Trust; the Trust
is a Delaware business trust duly organized, validly existing and in good
standing under the laws of the State of Delaware;
(b) The Trust is a registered investment company classified as a management
company of the open-end type and its registration with the Securities and
Exchange Commission (the "Commission") as an investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"), is in full force
and effect;
(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
Agreement and Declaration of Trust or ByLaws or any material agreement,
indenture, instrument, contract, lease or other undertaking to which the
Acquired Fund is a party or by which the Acquired Fund or its property is bound
or affected;
(d) There are no contracts or other commitments (other than this Agreement)
of the Acquired Fund which will be terminated with liability to the Acquired
Fund prior to the Closing Date;
(e) Except as previously disclosed in writing to and accepted by the
Acquiring Fund, no litigation or administrative proceeding or investigation of
or before any court or governmental body is presently pending or to its
knowledge threatened against the Acquired Fund or any of its properties or
assets which, if adversely determined, would materially and adversely affect its
financial condition or the conduct of its business. Except as previously
disclosed in writing to and accepted by the Acquiring Fund, the Acquired Fund
knows of no facts which might form the basis for the institution of such
proceedings and is not party to or subject to the provisions of any order,
decree or judgment of any court or governmental body which materially and
adversely affects its business or the business of the Acquired Fund or its
ability to consummate the transactions herein contemplated;
(f) The Statements of Assets and Liabilities, including the Investment
Portfolio, Statement of Operations, and Changes in Net Assets, and the Financial
Highlights of the Acquired Fund at October 31, 2002 and for the period from
October 31, 2001 to October 31, 2002 have been audited by PricewaterhouseCoopers
LLP, 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) The Financial Highlights of the Acquired Fund for the period from the
commencement of operations to October 31, 2000 have been audited by Ernst &
Young, 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 at such dates, and there are no known contingent
liabilities therein;
(h) Since October 31, 2002, there has not been any material adverse change
in the Acquired Fund's financial condition, assets, liabilities or business
other than changes occurring in the ordinary course of business, or any
incurrence by the Acquired Fund of indebtedness maturing more than one year from
the date such indebtedness was incurred except as otherwise disclosed to and
accepted in writing by the Acquiring Fund. For purposes of this subsection (h),
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;
(i) 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;
(j) 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;
(k) 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, except as set forth in the Trust's Agreement and Declaration of
Trust, non-assessable, by the Acquired Fund. 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;
(l) 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;
(m) 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
Trustees, 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;
(n) The information to be furnished by 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;
(o) 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
(p) 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(p), 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 Trustee or
Officer ("Indemnified Person") of the Acquired Fund, against money damages
actually and reasonably incurred by such Indemnified Person in connection with
any claim that is asserted against such Indemnified Person arising out of such
person's service as a Trustee or officer of the Acquired Fund 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
Trust 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 Trust, 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, whi ch 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 Trust is a validly existing business trust and in good standing
under the laws of the State of Delaware and has the statutory power to own all
of its properties and assets and to carry on its business as a registered
investment company; (b) the Agreement has been duly authorized, executed and
delivered by the Trust and the Acquiring Fund is a duly established series of
the Trust and, assuming due authorization, execution and delivery of the
Agreement by the other parties hereto, is a valid and binding obligation of the
Trust enforceable against the 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 Trust's Agreement and
Declaration of Trust or By-Laws or result in a material violation of any
provision of any material agreement (known to such counsel) to which the Trust
is a party or by which it or its property is bound or, to the knowledge of such
counsel, result in the acceleration of any obligation or the imposition of any
penalty, under any material agreement, judgment, or decree to which the Trust is
a party or by which it or its property is bound; (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 Delaware is required
for the consummation by the Trust 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 Trust is registered as an investment company under the 1940 Act,
and, to the knowledge of such counsel, its registration with the Commission as
an investment company under the 1940 Act is in full force and effect.
With respect to all matters of Delaware law, such counsel shall be entitled to
state that, with the approval of the Acquiring Fund, they have relied upon the
opinion of Xxxxxxxx, Xxxxxx & Finger and that their opinion is subject to the
same assumptions, qualifications and limitations with respect to such matters as
are contained in the opinion of Xxxxxxxx, Xxxxxx & Finger. 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 Acquiring Fund shall have received from Ernst & Young 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: in their opinion, the financial statements and financial
highlights of the Acquired Fund as incorporated by reference in the N-14
Registration Statement and reported on by them comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
rules and regulations thereunder.
7.7. 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.
7.8. 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.
7.9. The Acquired Fund shall have delivered to the Acquiring Fund, pursuant
to paragraph 4.1(f), copies of financial statements of the Acquired Fund as of
and for the fiscal year ended October 31, 2002.
7.10. 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 7.7.
7.11. The Board of Trustees of the Trust, including a majority of the trustees
who are not "interested persons" of the Trust (as defined by the 1940 Act),
shall have determined that this Agreement and the transactions contemplated
hereby are in the best interests of 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 Trust's Agreement and
Declaration of Trust and applicable law and certified copies of the votes
evidencing such approval shall have been delivered to the Acquiring Fund.
8.2. On the Closing Date no action, suit or other proceeding shall be pending
before any court or governmental agency in which it is sought to restrain or
prohibit, or obtain damages or other relief in connection with, this Agreement
or the transactions contemplated herein.
8.3. All consents of other parties and all other consents, orders and permits
of federal, state and local regulatory authorities (including those of the
Commission and of state blue sky and securities authorities, including
"no-action" positions of and exemptive orders from such federal and state
authorities) deemed necessary by the Acquiring Fund or the Acquired Fund to
permit consummation, in all material respects, of the transactions contemplated
hereby shall have been obtained, except where failure to obtain any such
consent, order or permit would not involve a risk of a material adverse effect
on the assets or properties of the Acquiring Fund or the Acquired Fund, provided
that either party hereto may for itself waive any of such conditions.
8.4. The N-14 Registration Statement and the Acquiring Fund Registration
Statement shall each have become or be effective under the 1933 Act and no stop
orders suspending the effectiveness thereof shall have been issued and, to the
best knowledge of the parties hereto, no investigation or proceeding for that
purpose shall have been instituted or be pending, threatened or contemplated
under the 0000 Xxx.
8.5. The parties shall have received a favorable opinion of Xxxxxxx Xxxx &
Xxxxxxxxx, addressed to, and in form and substance satisfactory to, the Acquired
Fund and the Acquiring Fund, substantially to the effect that for U.S. Federal
income tax purposes:
(a) The transfer of all of the Acquired Fund's assets to the Acquiring Fund
in exchange for the Acquiring Fund Shares and the assumption by the Acquiring
Fund of the liabilities of the Acquired Fund, and the distribution of such
Acquiring Fund Shares to shareholders of the Acquired Fund in exchange for
their shares of the Acquired Fund, will constitute a "reorganization" within the
meaning of Section 368(a) of the Code, and the Acquiring Fund and the Acquired
Fund will each be a "party to a reorganization" within the meaning of Section
368(b) of the Code; (b) no gain or loss will be recognized by the Acquiring Fund
on the receipt of the assets of the Acquired Fund solely in exchange for the
Acquiring Fund Shares and the assumption by the Acquiring Fund of the
liabilities of the Acquired Fund; (c) except for gain or loss regularly
attributable to the termination of the Acquired Fund's taxable year, no gain or
loss will be recognized by the Acquired Fund upon the transfer of the Acquired
Fund's assets to the Acquiring Fund in exchange for the Acquiring Fund Shares
and the assumption by the Acquiring Fund of the liabilities of the Acquired
Fund or upon the distribution of the Acquiring Fund Shares to the Acquired
Fund's shareholders in exchange for their shares of the Acquired Fund; (d) no
gain or loss will be recognized by shareholders of the Acquired Fund upon the
exchange of their Acquired Fund shares for the Acquiring Fund Shares or upon the
assumption by the Acquiring Fund of the liabilities of the Acquired Fund; (e)
the aggregate tax basis of the Acquiring Fund Shares received by each of the
Acquired Fund's shareholders pursuant to the Reorganization will be the same as
the aggregate tax basis of the Acquired Fund Shares held by such shareholder
immediately prior to the Reorganization, and the holding period of the Acquiring
Fund Shares to be received by each Fund shareholder will include the period
during which the Acquired Fund Shares exchanged therefor were held by such
shareholder (provided that such Acquired Fund Shares were held as capital assets
on the date of the Reorganization); and (f) except for assets which may be
revalued as a consequence of a termination of the Acquired Fund's taxable year,
the tax basis of the Acquired Fund's assets acquired by the Acquiring Fund will
be the same as the tax basis of such assets to the Acquired Fund immediately
prior to the Reorganization and the holding period of the assets of the Acquired
Fund in the hands of the Acquiring Fund will include the period during which
those assets were held by the Acquired Fund.
Notwithstanding anything herein to the contrary, neither the Acquiring Fund nor
the Acquired Fund may waive the conditions set forth in this paragraph 8.5.
9. Brokerage Fees and Expenses; Other Agreements
9.1. The Acquiring Fund represents and warrants to the Acquired Fund, and the
Acquired Fund represents and warrants to the Acquiring Fund, that there are no
brokers or finders or other entities to receive any payments in connection with
the transactions provided for herein.
9.2. CSAM or its affiliates agrees to bear the reasonable expenses incurred
in connection with the transactions contemplated by this Agreement, whether or
not consummated (excluding extraordinary expenses such as litigation expenses,
damages and other expenses not normally associated with transactions of the type
contemplated by this Agreement). These expenses consist of: (i) expenses
associated with preparing this Agreement, the N-14 Registration Statement and
expenses of the shareholder meetings insofar as they relate to approval of this
Agreement and the transactions contemplated thereby; (ii) expenses associated
with preparing and filing the N 14 Registration Statement covering the Acquiring
Fund Shares to be issued in the Reorganization insofar as they relate to
approval of this Agreement and the transactions contemplated thereby ; (iii)
registration or qualification fees and expenses of preparing and filing such
forms, if any, necessary under applicable state securities laws to qualify the
Acquiring Fund Shares to be issued in connection with the Reorganization; (iv)
postage; printing; accounting fees; and legal fees incurred by the Acquiring
Fund and by the Acquired Fund in connection with the transactions contemplated
by this Agreement; (v) solicitation costs incurred in connection with the
shareholders meeting referred to in clause (i) above and paragraph 5.2 hereof
insofar as they relate to approval of this Agreement and the transactions
contemplated thereby and (vi) any other reasonable Reorganization expenses.
9.3. Any other provision of this Agreement to the contrary notwithstanding,
any liability of either Fund under this Agreement, or in connection with the
transactions contemplated herein with respect to such Fund, shall be discharged
only out of the assets of such Fund.
10. Entire Agreement; Survival of Warranties
10.1. The Acquiring Fund and the Acquired Fund agree that neither party has
made any representation, warranty or covenant not set forth herein and that this
Agreement constitutes the entire agreement among the parties.
10.2. The representations, warranties and covenants contained in this
Agreement or in any document delivered pursuant hereto or in connection herewith
shall survive the consummation of the transactions contemplated hereunder.
11. Termination
11.1. This Agreement may be terminated at any time at or prior to the Closing
Date by: (1) mutual agreement of the Acquired Fund and the Acquiring Fund; (2)
the Acquired Fund in the event the Acquiring Fund shall, or the Acquiring Fund,
in the event the Acquired Fund shall, materially breach any representation,
warranty or agreement contained herein to be performed at or prior to the
Closing Date; or (3) the Acquired Fund or the Acquiring Fund in the event a
condition herein expressed to be precedent to the obligations of the
terminating party or parties has not been met and it reasonably appears that it
will not or cannot be met within a reasonable time.
11.2. In the event of any such termination, there shall be no liability for
damages on the part of either the Acquiring Fund, the Trust or the Acquired
Fund, or their respective Trustees, Directors or officers, to the other party or
parties.
12. Amendments
This Agreement may be amended, modified or supplemented in writing in such
manner as may be mutually agreed upon by the authorized officers of the Acquired
Fund and the Acquiring Fund; provided, however, that following the meeting of
the Acquired Fund's shareholders called by the Acquired Fund pursuant to
paragraph 5.2 of this Agreement no such amendment may have the effect of
changing the provisions for determining the number of the Acquiring Fund Shares
to be issued to the Acquired Fund's Shareholders under this Agreement to the
detriment of such shareholders without their further approval.
13. Notices
13.1. Any notice, report, statement or demand required or permitted by any
provisions of this Agreement shall be in writing and shall be given by prepaid
telegraph, telecopy or certified mail addressed to the Acquiring Fund at:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxx, Esq.
or to the Acquired Fund at:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxx, Esq.
14. Headings; Counterparts; Governing Law; Assignment; Limitation of
Liability
14.1. The article and paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
14.2. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
14.3. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
14.4. This Agreement shall bind and inure to the benefit of the parties hereto
and their respective successors and assigns, but no assignment or transfer
hereof or of any rights or obligations hereunder shall be made by any party
without the written consent of the other party. 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 Trust, in each case in such officer's
capacity as an officer and not individually. It is understood and expressly
stipulated that none of the Directors, Trustees, officers or shareholders of the
Acquiring Fund or the Trust 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 OPPORTUNITY FUNDS,
For and on Behalf of CREDIT SUISSE INTERNATIONAL FUND
By:
Name:
Title:
Attestation By:
Name:
Title:
CREDIT SUISSE INTERNATIONAL FOCUS FUND, INC.
By:
Name:
Title:
Attestation By:
Name:
Title:
Solely with respect to paragraphs 4.3, 5.9 and 9.2 hereof:
CREDIT SUISSE ASSET MANAGEMENT, LLC
By:
Name: Xxx Xxxxxx
Title: Managing Director
Attestation By:
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
