1298997.1
- 20 -
SUB-ITEM 77Q1(g)
Agreement and Plan of Reorganization of the
Fund and Credit Suisse Investment Grade Bond Fund,
Inc.
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION
(the "Agreement") is made as of this 20th day of June,
2003, between and among Credit Suisse Fixed Income
Fund, a Massachusetts business trust (the "Acquiring
Fund"), and Credit Suisse Investment Grade Bond 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 Internal Revenue Code of
1986, as amended (the "Code"). The reorganization of
the Acquired Fund (collectively, the "Reorganization")
will consist of the transfer of all of the assets of
the Acquired Fund in exchange solely for shares of
beneficial interest of the applicable class or classes
of the Acquiring Fund ("Acquiring Fund Shares"), 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 Acquiring Fund Shares to the
shareholders of the Acquired Fund ("Acquired Fund
Shareholders") 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 Trustees of the
Acquiring Fund has determined that the exchange of all
of the assets of the Acquired Fund for Acquiring Fund
Shares is in the best interests of the Acquiring
Fund's shareholders and that the interests of the
existing Acquiring Fund Shareholders 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
Shareholders of record determined as of the
close of business on the Closing Date 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
Shareholders representing the respective pro
rata number of the Acquiring Fund Shares due
such shareholders. All issued and outstanding
shares of the Acquired Fund ("Acquired Fund
Shares") 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. Acquiring Fund Shares will be
issued in the manner described in the Acquiring
Fund's current prospectuses and statement of
additional information.
1.6. Any transfer taxes payable upon issuance
of the Acquiring Fund Shares in a name other
than the registered holder of the Acquired Fund
Shares on the books of the Acquired Fund as of
that time shall, as a condition of such
issuance and transfer, be paid by the person to
whom such Acquiring Fund Shares are to be
issued and transferred.
1.7. Any reporting responsibility of the
Acquired Fund is and shall remain the
responsibility of the Acquired Fund up to and
including the Closing Date and such later date
on which the Acquired Fund is terminated.
2. Valuation
2.1. The value of the Acquired Fund's assets to
be acquired hereunder shall be the value of
such assets computed as of the close of regular
trading on The New York Stock Exchange, Inc.
(the "NYSE") on the Closing Date (such time and
date being hereinafter called the "Valuation
Date"), using the valuation procedures set
forth in the Acquired Fund's then current
prospectuses or statement of additional
information.
2.2. The number of Class A, Class B, Class C
and Class A Acquiring Fund Shares to be issued
(including fractional shares, if any) in
exchange for Class A, Class B, Class C and
Common Class, respectively, Acquired Fund
Shares 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 per share net asset
value of the Class A, Class B, Class C and
Class A, respectively, Acquiring Fund Shares
computed as of the close of regular trading on
the NYSE on the Closing Date, using the
valuation procedures set forth in the Acquiring
Fund's then current prospectuses or statement
of additional information.
2.3. All computations of value with respect to
the Acquiring Fund and the Acquired Fund shall
be made by State Street in accordance with its
regular practice as pricing agent for the
Acquiring Fund.
3. Closing and Closing Date
3.1. The Closing Date for the Reorganization
shall be 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 ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ or at such other time and/or place as
the parties may agree.
3.2. State Street, the custodian for the
Acquiring Fund, 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 Shareholders and the number
and class of outstanding Acquired Fund 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 the Acquired
Fund's Articles of Incorporation or ByLaws
or any material agreement, indenture,
instrument, contract, lease or other
undertaking to which the Acquired Fund is a
party or by which the Acquired Fund or its
property is bound or affected;
(d) There are no contracts or other
commitments (other than this Agreement) of
the Acquired Fund which will be terminated
with liability to the Acquired Fund prior to
the Closing Date;
(e) Except as previously disclosed in
writing to and accepted by the Acquiring
Fund, no litigation or administrative
proceeding or investigation of or before any
court or governmental body is presently
pending or to its knowledge threatened
against the Acquired Fund or any of its
properties or assets which, if adversely
determined, would materially and adversely
affect its financial condition or the
conduct of its business. Except as
previously disclosed in writing to and
accepted by the Acquiring Fund, the Acquired
Fund knows of no facts which might form the
basis for the institution of such
proceedings and is not party to or subject
to the provisions of any order, decree or
judgment of any court or governmental body
which materially and adversely affects its
business or the business of the Acquired
Fund or its ability to consummate the
transactions herein contemplated;
(f) The Statements of Assets and
Liabilities of the Acquired Fund as of
October 31, 2002, including the Schedule of
Investments and the related Statement of
Operations for the year then ended, the
Statement of Changes in Net Assets for each
of the two years in the period then ended
and the Financial Highlights for each of the
five years in the period then ended, have
been audited by PricewaterhouseCoopers LLP
(or one of its legacy firms), independent
accountants, and are in accordance with
generally accepted accounting principles
consistently applied, and such statements
(copies of which have been furnished to the
Acquiring Fund) fairly reflect the financial
condition of the Acquired Fund as of such
dates, and there are no known contingent
liabilities of the Acquired Fund as of
October 31, 2002 not disclosed therein;
(g) Since October 31, 2002, there has not
been any material adverse change in the
Acquired Fund's financial condition, assets,
liabilities or business other than changes
occurring in the ordinary course of
business, or any incurrence by the Acquired
Fund of indebtedness maturing more than one
year from the date such indebtedness was
incurred except as otherwise disclosed to
and accepted in writing by the Acquiring
Fund. For purposes of this subsection (g),
a decline in the per share net asset value
of the Acquired Fund Shares 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 Acquired 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 issued and
outstanding Acquired Fund Shares have been
offered and sold in compliance in all
material respects with applicable federal
and state securities laws;
(j) All issued and outstanding Acquired
Fund Shares of each class 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 Acquired Fund Shares 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 Acquired Fund Shares, nor is there
outstanding any security convertible into
any Acquired Fund 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
Shareholders, this Agreement will constitute
a valid and binding obligation of the
Acquired Fund enforceable in accordance with
its terms, subject to the effect of
bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and
other laws relating to or affecting
creditors' rights and to general equity
principles;
(m) The information to be furnished by the
Acquired Fund for use in applications for
orders, registration statements or proxy
materials or for use in any other document
filed or to be filed with any federal, state
or local regulatory authority (including the
NASD, Inc.), which may be necessary in
connection with the transactions
contemplated hereby, shall be accurate and
complete in all material respects and shall
comply in all material respects with federal
securities and other laws and regulations
applicable thereto;
(n) The current prospectuses and statement
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 (collectively, 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 Massachusetts
business trust duly organized and validly
existing under the laws of The Commonwealth
of Massachusetts;
(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 statement
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 Agreement and
Declaration of Trust or By-Laws or any
material agreement, indenture, instrument,
contract, lease or other undertaking to
which the Acquiring Fund is a party or by
which the Acquiring Fund or its property is
bound;
(f) Except as previously disclosed in
writing to and accepted by the Acquired
Fund, no litigation or administrative
proceeding or investigation of or before any
court or governmental body is presently
pending or to its knowledge threatened
against the Acquiring Fund or any of its
properties or assets which, if adversely
determined, would materially and adversely
affect its financial condition or the
conduct of its business. The Acquiring Fund
knows of no facts which might form the basis
for the institution of such proceedings and
is not a party to or subject to the
provisions of any order, decree or judgment
of any court or governmental body which
materially and adversely affects its
business or its ability to consummate the
transactions contemplated herein;
(g) Since October 31, 2002, there has not
been any material adverse change in the
Acquiring Fund's financial condition,
assets, liabilities or business other than
changes occurring in the ordinary course of
business, or any incurrence by the Acquiring
Fund of indebtedness maturing more than one
year from the date such indebtedness was
incurred except as otherwise disclosed to
and accepted in writing by the Acquired
Fund. For purposes of this subsection (g),
a decline in the per share net asset value
of the Acquiring Fund Shares due to declines
in market values of securities in the
Acquiring Fund's portfolio, the discharge of
Acquiring Fund liabilities, or the
redemption of Acquiring Fund Shares by
Acquiring Fund Shareholders shall not
constitute a material adverse change;
(h) At the Closing Date, all federal and
other tax returns and reports, including
extensions, of the Acquiring Fund required
by law then to be filed shall have been
filed, and all federal and other taxes shown
as due on said returns and reports shall
have been paid or provision shall have been
made for the payment thereof;
(i) For each taxable year of its operation
(including the taxable year which includes
the Closing Date), the Acquiring Fund has
met the requirements of Subchapter M of the
Code for qualification as a regulated
investment company and has elected to be
treated as such, has been eligible to and
has computed its federal income tax under
Section 852 of the Code;
(j) At the date hereof, all issued and
outstanding Acquiring Fund Shares of each
class are, and at the Closing Date will be,
duly and validly issued and outstanding,
fully paid and, except as set forth in the
Acquiring Fund's Agreement and Declaration
of Trust, non-assessable, by the Acquiring
Fund. The Acquiring Fund does not have
outstanding any options, warrants or other
rights to subscribe for or purchase any
Acquiring Fund Shares, nor is there
outstanding any security convertible into
any Acquiring Fund Shares;
(k) The execution, delivery and performance
of this Agreement has been duly authorized
by all necessary actions on the part of the
Acquiring Fund's Board of Trustees, and this
Agreement will constitute a valid and
binding obligation of the Acquiring Fund
enforceable in accordance with its terms,
subject to the effect of bankruptcy,
insolvency, fraudulent conveyance,
reorganization, moratorium and other laws
relating to or affecting creditors' rights
and to general equity principles;
(l) The Acquiring Fund Shares to be issued
and delivered to the Acquired Fund, for the
account of the Acquired Fund Shareholders,
pursuant to the terms of this Agreement,
will at the Closing Date have been duly
authorized and when so issued and delivered,
will be duly and validly issued Acquiring
Fund Shares, and will be fully paid and,
except as set forth in the Acquiring Fund's
Agreement and Declaration of Trust, non-
assessable, by the Acquiring Fund;
(m) Insofar as the following relate to the
Acquiring Fund, the N-14 Registration
Statement, on the effective date of the N-14
Registration Statement, at the time of any
shareholders' meeting referred to herein, on
the Valuation Date and on the Closing
Date: (i) shall comply in all material
respects with the provisions of the 1933
Act, the 1934 Act and the 1940 Act and the
rules and regulations under those Acts, and
(ii) shall not contain any untrue statement
of a material fact or omit to state a
material fact required to be stated therein
or necessary to make the statements therein
not misleading; provided, however, that the
representations and warranties in this
section shall not apply to statements in or
omissions from the Proxy Statement and the N-
14 Registration Statement made in reliance
upon and in conformity with information that
was furnished or should have been furnished
by the Acquired Fund for use therein; and
(n) The Acquiring Fund agrees to use all
reasonable efforts to obtain the approvals
and authorizations required by the 1933 Act,
the 1940 Act and such of the state Blue Sky
or securities laws as it may deem
appropriate in order to continue its
operations after the Closing Date.
4.3. CSAM represents and warrants to
the Acquiring Fund as follows: To the
knowledge of CSAM (i) there are no claims,
actions, suits or proceedings pending against
the Acquired Fund, and (ii) there are no
claims, actions, suits or proceedings
threatened, or circumstances that have been
identified by the Management Committee of CSAM
and the Secretary thereof as reasonably likely
to give rise to any claims, actions, suits or
proceedings, against the Acquired Fund that
would materially adversely affect the Acquired
Fund or its assets or business other than those
disclosed in writing to and accepted by the
Acquiring Fund.
5. Covenants of the Acquired Fund and the
Acquiring Fund
5.1. The Acquiring Fund and the Acquired Fund
will operate their respective businesses in the
ordinary course between the date hereof and the
Closing Date. It is understood that such
ordinary course of business will include the
declaration and payment of customary dividends
and distributions.
5.2. The Acquired Fund will call a meeting of
the Acquired Fund Shareholders 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 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 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
respective shareholders to which he would
otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or
from reckless disregard of the duties involved
in the conduct of his office. An Indemnified
Person seeking indemnification shall be
entitled to advances from the Acquiring Fund
for payment of the reasonable expenses incurred
by him in connection with the matter as to
which he is seeking indemnification in the
manner and to the fullest extent permissible
under applicable law. Such Indemnified Person
shall provide to the Acquiring Fund a written
affirmation of his good faith belief that the
standard of conduct necessary for
indemnification by the Acquiring Fund under
this paragraph has been met and a written
undertaking to repay any advance if it should
ultimately be determined that the standard of
conduct has not been met. In addition, at
least one of the following additional
conditions shall be met: (a) the Indemnified
Person shall provide security in form and
amount acceptable to the Acquiring Fund for its
undertaking; (b) the Acquiring Fund is insured
against losses arising by reason of the
advance; or (c) either a majority of a quorum
of disinterested non-party Trustees of the
Acquiring Fund (collectively, the
"Disinterested Trustees"), or independent legal
counsel experienced in mutual fund matters,
selected by the Indemnified Person, in a
written opinion, shall have determined, based
on a review of facts readily available to the
Acquiring Fund at the time the advance is
proposed to be made, that there is reason to
believe that the Indemnified Person will
ultimately be found to be entitled to
indemnification.
5.8. The Acquiring Fund agrees to take no
action that would adversely affect the
qualification of the Reorganization as a
reorganization under Section 368(a) of the
Code. In this regard, the Acquiring Fund
covenants that, following the Reorganization,
it (a) will (i) continue the historic business
of the Acquired Fund or (ii) use a significant
portion of the Acquired Fund's historic
business assets, and (b) will not sell or
otherwise dispose of any of the assets of the
Acquired Fund, except for dispositions in the
ordinary course of business or transfers to a
corporation (or other entity classified for
federal income tax purposes as an association
taxable as a corporation) that is "controlled"
by the Acquiring Fund within the meaning of
Section 368(c) of the Code.
5.9. CSAM agrees that the 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, President, 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
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, 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 business trust under the laws of The
Commonwealth of Massachusetts, and has the trust power
to own all of its properties and assets and to carry
on its business as a registered investment company;
(b) the Agreement has been duly authorized, executed
and delivered by the 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 Shareholders as provided by this
Agreement are duly authorized and upon such delivery
will be validly issued and outstanding and are fully
paid and, except as set forth in the Acquiring Fund's
Agreement and Declaration of Trust, non-assessable and
no shareholder of the Acquiring Fund has any
preemptive rights to subscription or purchase in
respect thereof; (d) the execution and delivery of
this Agreement did not, and the consummation of the
transactions contemplated hereby will not, conflict
with the Acquiring Fund'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 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 Commonwealth of Massachusetts 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 Massachusetts
law, such counsel shall be entitled to state that,
with the approval of the Acquired Fund, they have
relied upon the opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP
and that their opinion is subject to the same
assumptions, qualifications and limitations with
respect to such matters as are contained in the
opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP. Such opinion
also shall include such other matters incident to the
transaction contemplated hereby as the Acquired Fund
may reasonably request.
In this paragraph 6.3, references to the
Proxy Statement include and relate only to the text of
such Proxy Statement and not, except as specifically
stated above, to any exhibits or attachments thereto
or to any documents incorporated by reference therein.
6.4 The Board of Trustees of the Acquiring
Fund, including a majority of the trustees who are not
"interested persons" of the Acquiring Fund (as defined
in the 1940 Act), shall have determined that this
Agreement and the transactions contemplated hereby are
in the best interests of the Acquiring Fund and that
the interests of the shareholders in the Acquiring
Fund would not be diluted as a result of such
transactions, and the Acquiring Fund shall have
delivered to the Acquired Fund at the Closing, a
certificate, executed by an officer, to the effect
that the condition described in this subparagraph has
been satisfied.
7. Conditions Precedent to Obligations of
the Acquiring Fund
The obligations of the Acquiring Fund to
complete the transactions provided for herein shall be
subject, at its election, to the performance by the
Acquired Fund of all the obligations to be performed
by it hereunder on or before the Closing Date and, in
addition thereto, the following conditions:
7.1. All representations and warranties by or
on behalf of the Acquired Fund contained in
this Agreement shall be true and correct in all
material respects as of the date hereof and,
except as they may be affected by the
transactions contemplated by this Agreement, as
of the Closing Date with the same force and
effect as if made on and as of the Closing
Date;
7.2. The Acquired Fund shall have delivered to
the Acquiring Fund a statement of the Acquired
Fund's assets and liabilities as of the Closing
Date, certified by the Treasurer or Assistant
Treasurer of the Acquired Fund;
7.3. The Acquired Fund shall have delivered to
the Acquiring Fund on the Closing Date a
certificate executed in its name by its
Chairman, President, 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 ▇▇▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇, Baetjer and ▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇,
Baetjer and ▇▇▇▇▇▇, LLP. Such opinion also shall
include such other matters incident to the transaction
contemplated hereby as the Acquiring Fund may
reasonably request.
In this paragraph 7.4, references to the
Proxy Statement include and relate only to the text of
such Proxy Statement and not to any exhibits or
attachments thereto or to any documents incorporated
by reference therein.
7.5. The Acquiring Fund shall have received
from PricewaterhouseCoopers LLP a letter
addressed to the Acquiring Fund dated as of the
effective date of the N-14 Registration
Statement in form and substance satisfactory to
the Acquiring Fund, to the effect that:
(a) they are independent public accountants
with respect to the Acquired Fund within the
meaning of the 1933 Act and the applicable
regulations thereunder; and
(b) in their opinion, the financial
statements and financial highlights of the
Acquired Fund included or incorporated by
reference in the N-14 Registration Statement
and reported on by them comply as to form in
all material aspects with the applicable
accounting requirements of the 1933 Act and
the rules and regulations thereunder.
7.6. The Acquired Fund shall have received from
PricewaterhouseCoopers LLP a letter addressed
to the Acquired Fund dated as of the effective
date of the N-14 Registration Statement in form
and substance satisfactory to the Acquired
Fund, to the effect that:
(a) they are independent public accountants
with respect to the Acquiring Fund within
the meaning of the 1933 Act and the
applicable regulations thereunder; and
(b) in their opinion, the financial
statements and financial highlights of the
Acquiring Fund included or incorporated by
reference in the N-14 Registration Statement
and reported on by them comply as to form in
all material aspects with the applicable
accounting requirements of the 1933 Act and
the rules and regulations thereunder.
7.7. The Acquiring Fund and the Acquired Fund
shall have received from PricewaterhouseCoopers
LLP a letter addressed to both Funds and dated
as of the effective date of the N-14
Registration Statement in form and substance
satisfactory to each Fund, to the effect that:
on the basis of limited procedures agreed upon
by the Acquiring Fund and the Acquired Fund and
described in such letter (but not an
examination in accordance with generally
accepted auditing standards), specified
information relating to each Fund appearing in
the N-14 Registration Statement and the Proxy
Statement has been obtained from the accounting
records of each Fund or from schedules prepared
by officers of each Fund having responsibility
for financial and reporting matters and such
information is in agreement with such records,
schedules or computations made therefrom.
7.8. The Acquired Fund shall have delivered to
the Acquiring Fund, pursuant to paragraph
4.1(f), copies of financial statements of the
Acquired Fund as of and for the fiscal year
ended October 31, 2002.
7.9. The Acquiring Fund shall have received
from PricewaterhouseCoopers LLP a letter
addressed to the Acquiring Fund and dated as of
the Closing Date stating that, as of a date no
more than three (3) business days prior to the
Closing Date, PricewaterhouseCoopers LLP
performed limited procedures and that on the
basis of those procedures it confirmed the
matters set forth in paragraph 7.6.
7.10. The Board of Directors of the Acquired
Fund, including a majority of the directors who
are not "interested persons" of the Acquired
Fund (as defined by the 1940 Act), shall have
determined that this Agreement and the
transactions contemplated hereby are in the
best interests of the Acquired Fund and that
the interests of the shareholders in the
Acquired Fund would not be diluted as a result
of such transactions, and the Acquired Fund
shall have delivered to the Acquiring Fund at
the Closing, a certificate, executed by an
officer, to the effect that the condition
described in this subparagraph has been
satisfied.
8. Further Conditions Precedent to
Obligations of the Acquiring Fund and the Acquired
Fund
If any of the conditions set forth below do
not exist on or before the Closing Date with respect
to the Acquiring Fund, the Acquired Fund shall, and if
any of such conditions do not exist on or before the
Closing Date with respect to the Acquired Fund, the
Acquiring Fund shall, at their respective option, not
be required to consummate the transactions
contemplated by this Agreement.
8.1. The Agreement and the transactions
contemplated herein shall have been approved by
the requisite vote of the holders of the
outstanding Acquired Fund Shares 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
▇▇▇▇ ▇▇▇.
8.5. The parties shall have received a
favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
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 Acquired Fund Shareholders in exchange
for Acquired Fund Shares, 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 Shareholders in exchange for their
Acquired Fund Shares; (d) no gain or loss
will be recognized by Acquired Fund
Shareholders upon the exchange of their
Acquired Fund Shares for the Acquiring Fund
Shares; (e) the aggregate tax basis of the
Acquiring Fund Shares received by each of
the Acquired Fund 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 entitled 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)
either the Acquired Fund or the Acquiring Fund
by written notice to the other; (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 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 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
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:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇, Esq.
or to the Acquired Fund at:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇, Esq.
14. Headings; Counterparts; Governing Law;
Assignment; Limitation of Liability
14.1. The article and paragraph headings
contained in this Agreement are for reference
purposes only and shall not affect in any way
the meaning or interpretation of this
Agreement.
14.2. This Agreement may be executed in any
number of counterparts, each of which shall be
deemed an original.
14.3. This Agreement shall be governed by and
construed in accordance with the laws of the
State of New York.
14.4. This Agreement shall bind and inure to the
benefit of the parties hereto and their
respective successors and assigns, but no
assignment or transfer hereof or of any rights
or obligations hereunder shall be made by any
party without the written consent of the other
party. Except as provided in Section 5.7,
nothing herein expressed or implied is intended
or shall be construed to confer upon or give
any person, firm or corporation, other than the
parties hereto and their respective successors
and assigns, any rights or remedies under or by
reason of this Agreement.
14.5. Notice is hereby given that this Agreement
is entered into on behalf of the Acquiring Fund
by an officer of the 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 Acquired Fund or the
Acquiring Fund are personally liable hereunder.
All persons dealing with the Acquiring Fund
should look solely to the property of the
Acquiring Fund for the enforcement of any
claims against the Acquiring Fund.
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 INVESTMENT GRADE BOND FUND, INC.
By:/s/▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Secretary
Attestation By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
CREDIT SUISSE FIXED INCOME FUND
By: /s/▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Secretary
Attestation By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
Solely with respect to paragraphs 4.3, 5.9 and 9.2
hereof:
CREDIT SUISSE ASSET MANAGEMENT, LLC
By:/s/▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
Attestation By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President