DRAFT: FOR DISCUSSION PURPOSES ONLY
As filed with the Securities and Exchange Commission
on August __, 2002
SECURITIES ACT FILE NO. 333- ________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM N-14
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
EIS FUND, INC.
(Exact Name of Registrant as Specified in Charter)
c/o Bear Stearns Funds Management Inc.,
383 Madison Avenue, New York, New York 10179
(Address of Principal Executive Offices: Number, Street, City, State, Zip Code)
(212) 272-2093
(Registrant's Area Code and Telephone Number)
--------------------
Ralph Bradshaw, President
EIS Fund, Inc.
c/o Bear Stearns Funds Management Inc.
383 Madison Avenue
New York, New York 10179
(Name and Address of Agent for Service)
with copies to:
Thomas R. Westle, Esq.
Spitzer & Feldman P.C.
405 Park Avenue
New York, New York 10022
--------------------------------------------------------------------------------
APPROXIMATE DATE OF PROPOSED PUBLIC OFFERING:
As soon as practicable after this Registration Statement becomes effective
CALCULATION OF REGISTRATION FEE UNDER THE SECURITIES ACT OF 1933
===============================================================================
TITLE OF PROPOSED PROPOSED
SECURITIES MAXIMUM MAXIMUM AMOUNT OF
BEING AMOUNT BEING OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER UNIT (1) OFFERING PRICE(1) FEE
------------------------------------------------------------------------------
Common Stock
($0.01 par value) $34,000,000 $34,000,000 $34,000,000 $3,404
(1) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(f) under the Securities Act of 1933, as amended, based
on the Exchange Ratio (the net asset value of The Cornerstone Strategic Return
Fund, Inc.).
EIS FUND, INC.
CONTENTS OF REGISTRATION STATEMENT
This Registration Statement contains the following papers and documents:
- Cover Sheet
- Contents of Registration Statement
- Form N-14 Cross Reference Sheet
- Letter to Stockholders of EIS Fund, Inc.
- Letter to Stockholders of The Cornerstone Strategic Return Fund, Inc.
- Notice of Special Meeting of Stockholders of EIS Fund, Inc.
- Notice of Special Meeting of Stockholders of The Cornerstone Strategic
Return Fund, Inc.
- Part A
- Proxy Statement/Prospectus
- Part B
- Statement of Additional Information
- Part C
- Other Information
- Signature Page
- Exhibits
CROSS REFERENCE SHEET
PURSUANT TO RULE 481(A) UNDER THE SECURITIES ACT OF 1933
ITEM NO. PROXY/PROSPECTUS
1. Beginning of Registration Statement and
Outside Front Cover Page of Prospectus Cover Page
2. Beginning and Outside Back Cover
Page of Prospectus Cover Page; Table of Contents of Prospectus
3. Fee Table, Synopsis Information
and Risk Factors Synopsis; Risk Factors and Considerations; Comparison
Investment Objectives and Policies
4. Information about the Transaction Synopsis; Proposed Information about the Merger;
Additional Information about the Funds
5. Information about the Registrant Synopsis; Risk Factors and Considerations; Comparison
of Investment Objectives and Policies; and Additional
Information about the Funds
6. Information about the Company Being
Acquired Synopsis; Risk Factors and Special Considerations;
Comparison of Investment Objectives and Policies; and
Additional Information about the Funds
7. Voting Information Notice of Meeting of Stockholders; General; Required
Vote
8. Interest of Certain Persons and Experts Additional Information about the Funds
9. Additional Information Required for
Reoffering by Persons Deemed to be
Underwriters Not Applicable
ITEM NO. STATEMENT OF ADDITIONAL INFORMATION
10. Cover Page Cover Page
11. Table of Contents Table of Contents
12. Additional Information About
the Registrant Proxy Statement/Prospectus
13. Additional Information about
the Company being Acquired Proxy Statement/Prospectus
14. Financial Statements Financial Statements
15 - 17 Information required to be included in Part C is set forth under
the appropriate item, so numbered, in Part C of this
Registration Statement
INFORMATION REQUIRED IN THE PROXY STATEMENT/PROSPECTUS
--------------------------------------------------------------------------------
EIS FUND, INC.
c/o Bear Stearns Funds Management Inc.
383 Madison Avenue
New York, New York 10179
September __, 2002
Dear Stockholder:
We are pleased to invite you to the special meeting of stockholders
(the "EIS Special Meeting") of EIS Fund, Inc., a New York corporation. The EIS
Fund, Inc. is sometimes referred to herein as "EIS" or the "Fund."
The EIS Special Meeting is scheduled to be held at ____ a.m., Eastern
time, on _______________, October __, 2002, at the offices of Bear Stearns Funds
Management Inc., 383 Madison Avenue, New York, New York 10179. Stockholders who
are unable to attend this meeting are strongly encouraged to vote by proxy,
which is customary in corporate meetings of this kind. A Proxy
Statement/Prospectus regarding the meeting, a proxy card(s) for your vote at the
meeting and an envelope - postage prepaid - in which to return your proxy card
are enclosed. At the EIS Special Meeting you will be asked to vote on two
matters.
First, you will be asked to vote on a Merger Agreement and Plan of
Reorganization (the "Plan" or "Merger Agreement"), whereby The Cornerstone
Strategic Return Fund, Inc. ("CRF") will merge with and into EIS in accordance
with the New York Business Corporation Law and the Maryland General Corporation
Law. As a result of the merger:
- CRF will no longer exist,
- EIS will be the surviving corporation,
- all Eligible Shares (as that term is defined herein) of common
stock of CRF will convert into an equivalent dollar amount (to the
nearest one ten-thousandth of one cent) of shares and fractional
shares of common stock of EIS, based on the net asset value per share
of each fund (the "Exchange Ratio"), and - all Ineligible Shares of
common stock of CRF will receive cash in an amount equal to the five
day trading average for the five business days prior to the effective
date of the Merger.
EIS will issue fractional shares to CRF's Eligible Stockholders (as
that term is defined herein), and the issued and outstanding shares of EIS will
remain issued and outstanding. CRF's Ineligible Shareholders will receive cash
at a price equal to the five day trading average for the five business days
prior to the Effective Date (as that term is used herein).
Lastly, in the event that stockholders of EIS and CRF approve the
Plan, the stockholders of EIS will be asked to approve an amendment to EIS's
Certificate of Incorporation changing the Fund's name from "EIS Fund, Inc." to
"Cornerstone Total Return Fund, Inc."
EIS and CRF are both closed-end, diversified management investment
companies which are listed on the New York Stock Exchange. EIS seeks capital
appreciation with current income as a secondary objective. CRF's investment
objective is to seek long-term capital appreciation by investing in securities
of U.S. and non-U.S. issuers. The current investment objective and policies of
EIS will continue unchanged if the merger occurs.
The Board of Directors of EIS believes that combining the two funds
will benefit Fund stockholders by providing the potential for:
- lower operating expense ratio, and - enhanced market liquidity of
EIS's shares.
The proposed merger of the Funds is described in more detail in the
combined Proxy Statement/Prospectus.
THE BOARD OF DIRECTORS OF THE FUND BELIEVES THAT THE PROPOSED MERGER AND NAME
CHANGE ARE IN THE BEST INTERESTS OF THE STOCKHOLDERS AND RECOMMENDS THAT YOU
READ THE ENCLOSED MATERIALS CAREFULLY AND THEN VOTE "FOR" PROPOSALS 1 AND 2.
Your vote is important. PLEASE TAKE A MOMENT NOW TO SIGN AND RETURN YOUR PROXY
CARD(S) IN THE ENCLOSED POSTAGE-PAID RETURN ENVELOPE.
Respectfully,
Ralph W. Bradshaw
Chairman of the Board of Directors
YOU ARE URGED TO SIGN THE PROXY CARD(S) AND RETURN THE CARD(S) IN THE
POSTAGE-PAID ENVELOPE TO ENSURE A QUORUM AT THE MEETING. YOUR VOTE IS IMPORTANT
REGARDLESS OF THE SIZE OF YOUR SHAREHOLDINGS.
THE CORNERSTONE STRATEGIC RETURN FUND, INC.
c/o Bear Stearns Funds Management, Inc.
383 Madison Avenue
New York, New York 10179
_______, 2002
Dear Stockholder:
We are pleased to invite you to the special meeting of stockholders
(the "CRF Special Meeting") of The Cornerstone Strategic Return Fund, Inc., a
Maryland corporation. The Cornerstone Strategic Return Fund, Inc. is sometimes
referred to hereinafter as "CRF" or the "Fund."
The CRF Special Meeting is scheduled to be held at ___ a.m., Eastern
time, on _____________, October __, 2002, at the offices of Bear Stearns Funds
Management Inc., 383 Madison Avenue, New York, New York 10179. Stockholders who
are unable to attend this meeting are strongly encouraged to vote by proxy,
which is customary in corporate meetings of this kind. A Proxy
Statement/Prospectus regarding the meeting, a proxy card(s) for your vote at the
meeting and an envelope - postage prepaid - in which to return your proxy card
are enclosed. At the CRF Special Meeting you will be asked to vote on one
matter.
You will be asked to vote on a Merger Agreement and Plan of
Reorganization (the "Merger Agreement"), whereby CRF will merge with and into
EIS Fund, Inc. ("EIS") in accordance with the New York Business Corporation Law
and the Maryland General Corporation Law. As a result of the merger:
- CRF will no longer exist,
- EIS will be the surviving corporation,
- all Eligible Shares (as that term is defined herein) of common
stock of CRF will convert into an equivalent dollar amount (to the
nearest one ten-thousandth of one cent) of shares and fractional
shares of common stock of EIS, based on the net asset value per share
of each fund (the "Exchange Ratio"), and - all Ineligible Shares of
common stock of CRF will receive cash in an amount equal to the five
day trading average for the five business days prior to the effective
date of the Merger.
EIS and CRF are both closed-end, diversified management investment
companies which are listed on the New York Stock Exchange. EIS's investment
objective is to seek capital appreciation with current income as a secondary
objective, and CRF's investment objective is to seek long-term capital
appreciation. The current investment objective and policies of EIS will continue
unchanged if the merger occurs.
The Board of Directors of CRF believes that combining the two funds
will benefit Fund stockholders by providing the potential for:
- a lower operating expense ratio,
- enhance market liquidity of EIS's shares.
The proposed merger and the investment policies of the Funds are
described in more detail in the combined Proxy Statement/Prospectus. THE BOARD
OF DIRECTORS OF THE FUND BELIEVES THAT THE PROPOSED MERGER IS IN THE BEST
INTERESTS OF THE STOCKHOLDERS AND RECOMMENDS THAT YOU READ THE ENCLOSED
MATERIALS CAREFULLY AND THEN VOTE "FOR" PROPOSAL 1.
Your vote is important. PLEASE TAKE A MOMENT NOW TO SIGN AND RETURN YOUR PROXY
CARD(S) IN THE ENCLOSED POSTAGE-PAID RETURN ENVELOPE.
Respectfully,
Ralph W. Bradshaw
Chairman of the Board of Directors
YOU ARE URGED TO SIGN THE PROXY CARD(S) AND RETURN THE CARD(S) IN THE
POSTAGE-PAID ENVELOPE TO ENSURE A QUORUM AT THE MEETING. YOUR VOTE IS IMPORTANT
REGARDLESS OF THE SIZE OF YOUR SHAREHOLDINGS.
EIS FUND, INC.
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
Notice is hereby given that the Special Meeting of Stockholders (the
"EIS Special Meeting") of EIS Fund, Inc. ("EIS"), a New York corporation, will
be held at the offices of Bear Stearns Funds Management Inc., 383 Madison
Avenue, New York, New York 10179, on _________, October __, 2002, at ___ a.m.,
Eastern time, for the following purposes:
1. To consider and vote upon the approval of a Merger Agreement
and Plan of Reorganization dated October __, 2002 whereby
The Cornerstone Strategic Return Fund, Inc. ("CRF"), a
Maryland corporation, will merge with and into EIS in
accordance with the New York Business Corporation Law and
the Maryland General Corporation Law; and and in the event
that stockholders approve the merger proposal, then
Stockholders will be asked to vote upon Proposal 2:
2. To amend the Certificate of Incorporation to change the name
of the Fund from "EIS Fund, Inc." to "Cornerstone Total
Return Fund, Inc." (Proposal 2).
The appointed proxies will vote in their discretion on any other
business that may properly come before the EIS Special Meeting or any
adjournments thereof.
Holders of record of shares of common stock of EIS at the close of
business on September __, 2002 (the "Record Date") are entitled to vote at the
EIS Special Meeting and at any postponements or adjournments thereof. CRF
stockholders must approve the merger as well.
The persons named as proxies may propose one or more adjournments of
the EIS Special Meeting if the necessary quorum to transact business or the vote
required to approve or reject any proposal is not obtained at the meeting. Any
such adjournment will require the affirmative vote of the holders of a majority
of EIS's shares present in person or by proxy at the EIS Special Meeting. The
persons named as proxies will vote those proxies which they are entitled to vote
on any such proposal in accordance with their best judgment in the interest of
EIS.
The enclosed proxy is being solicited on behalf of the Board of
Directors of EIS.
By Order of the Board of Directors,
Ralph W. Bradshaw, President
IMPORTANT -- WE URGE YOU TO SIGN AND DATE THE ENCLOSED PROXY CARD(S) AND RETURN
THE CARD(S) IN THE ENCLOSED ADDRESSED ENVELOPE WHICH REQUIRES NO POSTAGE AND IS
INTENDED FOR YOUR CONVENIENCE. YOUR PROMPT RETURN OF THE ENCLOSED PROXY CARD(S)
MAY SAVE THE NECESSITY AND EXPENSE OF FURTHER SOLICITATIONS TO ENSURE A QUORUM
AT THE EIS SPECIAL MEETING. IF YOU CAN ATTEND THE EIS SPECIAL MEETING AND WISH
TO VOTE YOUR SHARES IN PERSON AT THAT TIME, YOU WILL BE ABLE TO DO SO.
THE CORNERSTONE STRATEGIC RETURN FUND, INC.
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
Notice is hereby given that the Special Meeting of Stockholders (the
"CRF Special Meeting") of The Cornerstone Strategic Return Fund, Inc. ("CRF"), a
Maryland corporation, will be held at the offices of Bear Stearns Funds
Management Inc., 383 Madison Avenue, New York, New York 10179, on _____, October
___, 2002, at ___ a.m., Eastern time, for the following purpose:
1. To consider and vote upon the approval of a Merger Agreement
and Plan of Reorganization dated October __, 2002 whereby
CRF will merge with and into EIS Fund, Inc. ("EIS"), a New
York corporation, in accordance with the New York Business
Corporation Law and the Maryland General Business Law.
The appointed proxies will vote in their discretion on any other
business that may properly come before the CRF Special Meeting or any
adjournments thereof.
Holders of record of shares of common stock of CRF at the close of
business on September __, 2002 (the "Record Date") are entitled to vote at the
CRF Special Meeting and at any postponements or adjournments thereof. EIS
stockholders must approve the merger as well.
The persons named as proxies may propose one or more adjournments of
the CRF Special Meeting if the necessary quorum to transact business or the vote
required to approve or reject any proposal is not obtained at the meeting. Any
such adjournment will require the affirmative vote of the holders of a majority
of CRF's shares present in person or by proxy at the CRF Special Meeting. The
persons named as proxies will vote those proxies which they are entitled to vote
on any such proposal in accordance with their best judgment in the interest of
CRF.
The enclosed proxy is being solicited on behalf of the Board of
Directors of CRF.
By Order of the Board of Directors,
Ralph W. Bradshaw, President
IMPORTANT -- WE URGE YOU TO SIGN AND DATE THE ENCLOSED PROXY CARD(S) AND RETURN
THE CARD(S) IN THE ENCLOSED ADDRESSED ENVELOPE WHICH REQUIRES NO POSTAGE AND IS
INTENDED FOR YOUR CONVENIENCE. YOUR PROMPT RETURN OF THE ENCLOSED PROXY CARD(S)
MAY SAVE THE NECESSITY AND EXPENSE OF FURTHER SOLICITATIONS TO ENSURE A QUORUM
AT THE CRF SPECIAL MEETING. IF YOU CAN ATTEND THE CRF SPECIAL MEETING AND WISH
TO VOTE YOUR SHARES IN PERSON AT THAT TIME, YOU WILL BE ABLE TO DO SO.
DRAFT: FOR DISCUSSION PURPOSES ONLY
INSTRUCTIONS FOR SIGNING PROXY CARDS
The following general rules for signing proxy cards may be of
assistance to you and avoid the time and expense to the Fund involved in
validating your vote if you fail to sign your proxy card properly.
1. Individual Accounts: Sign your name exactly as it appears in the
registration on the proxy card.
2. Joint Accounts: Either party may sign, but the name of the party signing
should conform exactly to a name shown in the registration.
3. Other Accounts: The capacity of the individual signing the proxy card
should be indicated unless it is reflected in the form of registration. For
example:
REGISTRATION
CORPORATE ACCOUNTS VALID SIGNATURE
(1) ABC Corp................................ABC Corp. (by John Doe, Treasurer)
(2) ABC Corp................................John Doe, Treasurer
(3) ABC Corp.
c/o John Doe, Treasurer.................John Doe
(4) ABC Corp. Profit Sharing Plan...........John Doe, Trustee
TRUST ACCOUNTS
(1) ABC Trust...............................Jane B. Doe, Trustee
(2) Jane B. Doe, Trustee
u/t/d/ 12/28/78.........................Jane B. Doe
CUSTODIAL OR ESTATE ACCOUNTS
(1) John B. Smith, Cust.
f/b/o John B. Smith, Jr. UGMA...........John B. Smith
(2) John B. Smith...........................John B. Smith, Jr., Executor
THE CORNERSTONE STRATEGIC RETURN FUND, INC.
383 Madison Avenue
New York, New York 10179
Tel: (212) 272-2093
TO BE MERGED WITH AND INTO
EIS FUND, INC.
383 Madison Avenue
New York, New York 10179
Tel: (212) 272-2093
COMBINED PROXY STATEMENT/PROSPECTUS
This combined Proxy Statement/Prospectus is being furnished to
stockholders of EIS Fund, Inc. ("EIS") and The Cornerstone Strategic Return
Fund, Inc. ("CRF") for use at each Fund's respective Special Meeting of
Stockholders to be held on ________, October __, 2002 at ___ a.m. and ___ a.m.,
respectively, and at any and all postponements or adjournments thereof. The
approximate mailing date of this Proxy Statement/Prospectus is September __,
2002.
PURPOSE OF THE MEETINGS.
At each of the Meetings, stockholders of each Fund will be asked to
approve a Merger Agreement and Plan of Reorganization dated October __, 2002
(the "Plan") whereby CRF will merge with and into EIS, in accordance with the
New York Business Corporation Law and the Maryland General Corporation Law. In
addition to the Merger proposal, EIS Stockholders will be asked to vote on an
amendment to EIS's Certificate of Incorporation changing the name of the Fund to
"Cornerstone Total Return Fund, Inc." which will only take effect in the event
that the stockholders of EIS and CRF approve the Merger proposal.
SPECIFICS OF THE PROPOSED MERGER.
---------------------------------
As a result of the merger:
- CRF will no longer exist,
- EIS will be the surviving corporation, and
- all Eligible Shares (as that term is defined herein) of common
stock of CRF will convert into an equivalent dollar amount (to the
nearest one ten-thousandth of one cent) of shares and fractional
shares of common stock of EIS, based on the net asset value per share
of each fund (the "Exchange Ratio"), and
- all Ineligible Shares of common stock of CRF will receive cash
based on the average market price for the five day trading period
prior to the Effective Date ("Cash Price").
-1-
SOME SHAREHOLDERS OF CRF MAY RECEIVE CASH
The By-laws of EIS contain provisions that do not allow the Fund to
transfer shares if such transfer would or might, in the reasonable opinion of
the Fund's Board of Directors, incur any responsibility for substantial expenses
or any responsibility of EIS to make any regulatory filings in any jurisdiction
outside the United States. Stockholders that are eligible to receive EIS's
common stock are hereinafter referred to as the "Eligible Stockholders" and
those stockholders that are not eligible to receive shares of EIS's common stock
shall hereinafter be referred to as "Ineligible Stockholders". The shares of
common stock that EIS can issue shall be sometimes referred to herein as the
"Eligible Shares." Under the Merger Agreement, any Stockholders of CRF who would
be ineligible stockholders will receive cash equal to the average market price
for the five day trading period prior to the Effective Date ("Cash Price").
The CRF Board of Directors appointed a special committee to review
the fairness of the Cash Price mechanism to Ineligible Stockholders. This
committee, which was composed of the two members of the CRF Board who are not
members of the EIS Board, Messrs. Edwin Meese III and Thomas H. Lenagh,
incorporated information and discussion on the issues from previous Board
Meetings and received advice from Fund counsel as to the alternatives that might
be available and from the Fund's Administrator as to how the mechanism would
function. They concluded that, based on the limited alternatives and the
neutrality of the way that the mechanism would function, it is fair to
Ineligible Stockholders of CRF.
EIS WILL ISSUE FRACTIONAL SHARES TO ELIGIBLE STOCKHOLDERS.
In connection with the merger, EIS will issue that number of shares
that have an aggregate net asset value equal to the aggregate net asset value of
the outstanding shares of CRF. Each eligible CRF stockholder, in connection with
the merger, will receive shares of EIS having an aggregate net asset value equal
to the aggregate net asset value of the stockholder's CRF shares before the
merger, and all ineligible stockholders of CRF shall receive the Cash Price.
While the total net asset value of shares received by each CRF stockholder in
the merger will be the same as before the merger, the market value of EIS shares
that a CRF stockholder receives in the merger will be more or less than the
market value of CRF shares that such stockholder owns immediately before the
merger, depending on the current market discount levels of CRF and EIS.
INFORMATION ABOUT THE FUNDS.
EIS and CRF are both closed-end, diversified management investment
companies whose shares are listed on the New York Stock Exchange. EIS's
investment objective is to seek capital appreciation with current income as a
secondary objective, while CRF seeks long-term capital appreciation. The current
investment objective and policies of EIS will continue unchanged if the merger
occurs.
If the merger proposal is approved, EIS stockholders will be asked to
approve the amendment to EIS's Articles of Incorporation changing the name of
the Fund from "EIS Fund, Inc." to "Cornerstone Total Return Fund, Inc." If both
proposals are approved, the Board of Directors is seeking to use "CRF" as the
Fund's ticker symbol on the New York Stock Exchange, however, no assurances can
be given that the Fund will be able to use this symbol.
The terms and conditions of the merger and related transactions are
more fully described in this Proxy Statement/Prospectus and in the Plan, a copy
of which is attached as Exhibit A.
-2-
This Proxy Statement/Prospectus serves as a prospectus for shares of
EIS under the Securities Act of 1933, as amended (the "Securities Act") in
connection with the issuance of EIS common shares in the merger.
Assuming the stockholders of each Fund approve the merger, the Funds
will jointly file articles of merger (the "Merger Document"), with the State
Department of Assessments and Taxation of Maryland (the "Department") and a
certificate of merger (the "Certificate of Merger") with the New York Department
of State. Collectively, the Articles of Merger and the Certificate of Merger
shall be hereinafter referred to as the "Articles of Merger." The merger will
become effective on October __, 2002 (the "Effective Date"). CRF, as soon as
practicable after the Effective Date, will terminate its registration under the
Investment Company Act of 1940, as amended (the "Investment Company Act").
Under both Maryland and New York law, shareholders of EIS and CRF are
not entitled to any appraisal or similar rights in connection with the Merger
contemplated by the Plan.
You should retain this Proxy Statement/Prospectus for future
reference as it sets forth concisely information about EIS and CRF that you
should know before voting on the proposals described below.
A Statement of Additional Information (the "SAI") dated September __,
2002, which contains additional information about the merger and the Funds has
been filed with the Securities and Exchange Commission (the "SEC"). The SAI and
the financial statements of EIS and CRF for the fiscal year ended December 31,
2001 are incorporated by reference into this Proxy Statement/Prospectus. A copy
of these documents are available upon request and without charge by writing to
the Secretary of the Fund c/o Bear Stearns Funds Management Inc. located at 383
Madison Avenue, 23rd Floor, New York, New York 10179, or by calling (212)
272-2093. You may ask questions about the Funds by calling (212) 272-2093. EIS
has provided the information included in this Proxy Statement/Prospectus
regarding that Fund and CRF has provided the information included in this Proxy
Statement/Prospectus regarding that Fund.
EIS's shares of common stock are listed on the NYSE under the symbol
"EIS" and CRF's shares of common stock are listed on the NYSE under the symbol
"CRF." In the event that both proposals are approved and the Fund is allowed to
use "CRF" as its new ticker symbol, the Fund's shares will continue to be listed
on the NYSE under the symbol "CRF." Reports, proxy materials and other
information concerning each Fund may be inspected at the offices of the NYSE, 20
Broad Street, New York, New York 10005.
The SEC has not approved or disapproved these securities or
determined if this Proxy Statement/Prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
The date of this Proxy Statement/Prospectus is September __, 2002
-3-
TABLE OF CONTENTS
Page
General..................................................................... 6
Proposal 1 (BOTH FUNDS): APPROVAL
OF THE MERGER AGREEMENT AND
PLAN OF REORGANIZATION...................................................... 8
Synopsis......................................................... 9
Expense Table....................................................13
Financial Highlights.............................................14
Principal Risk Factors...........................................14
Comparison of Investment Objectives and Policies.................17
United States Federal Income Taxes...............................21
Information about the Merger.....................................23
Additional Information about the Funds...........................28
Management of the Funds..........................................35
Experts..........................................................42
Required Vote....................................................42
Legal Proceedings................................................42
Legal Opinions...................................................42
PGF Proposal 2: RATIFICATION OF
THE CHANGE IN NAME OF THE
FUND TO "CORNERSTONE TOTAL
RETURN FUND, INC."..........................................................43
Additional Information......................................................44
Exhibit A: Form of Merger Agreement.........................................A-1
Exhibit B1: Form of PGF Proxy Card..........................................B1-1
Exhibit B2: Form of CLM Proxy Card.........................................B2-1
Exhibit C: Certificate of Amendment to the Articles of Incorporation.......C-1
-4-
GENERAL
This combined Proxy Statement/Prospectus is furnished to the
stockholders of each Fund in connection with the solicitation of proxies on
behalf of each Fund's Board of Directors. The Board of Directors of each Fund is
soliciting proxies for use at each Funds respective Special Meeting of
Stockholders. The mailing address for both Funds is c/o Bear Stearns Funds
Management Inc., 383 Madison Avenue, New York, New York 10179.
This combined Proxy Statement/Prospectus, the Notices of Meeting to
Stockholders and the proxy card(s) are first being mailed to stockholders on or
about September __, 2002 or as soon as practicable thereafter. Any stockholder
who gives a proxy has the power to revoke the proxy either (i) by mail,
addressed to the Secretary of the respective Fund, at the Fund's mailing
address, or (ii) in person at the Special Meetings by executing a superseding
proxy or by submitting a notice of revocation to the respective Fund. All
properly executed proxies received in time for the Meetings will be voted as
specified in the proxy or, if no specification is made, in favor of the proposal
for each Fund.
Stockholders of both EIS and CRF will be asked to vote on Proposal 1
-- the approval of the Plan, and if Proposal 1 is approved, then Stockholders of
EIS will be asked to vote on Proposal 2 -- the amendment to the Articles of
Incorporation.
QUORUM
The presence, either in person or by proxy, of the holders of
one-third of the outstanding shares of CRF common stock entitled to vote at a
meeting of CRF, will constitute a quorum for the transaction of business for
CRF. At least 51% of EIS's stockholders must be present at the Special Meeting
in person or by proxy to constitute a quorum for the transaction of business by
EIS. For purposes of determining the presence of a quorum for transacting
business at a meeting, abstentions and broker "non-votes" will be treated as
shares that are present. Broker non-votes are proxies received by a Fund from
brokers or nominees, indicating that the broker or nominee has neither received
instructions from the beneficial owner or other persons entitled to vote nor has
the discretionary power to vote on a particular matter. Stockholders are urged
to forward their voting instructions promptly.
REQUIRED VOTE
Proposal 1 requires the affirmative vote of a majority of the
outstanding shares of common stock of each Fund, and Proposal 2 requires the
affirmative vote of a majority of EIS's outstanding shares of common stock.
Abstentions and broker non-votes will have the effect of a "no" vote for
Proposal 1 and 2.
-5-
Proxy solicitations will be made primarily by mail, but solicitations
may also be made by telephone, telegraph or personal interviews conducted by
officers or employees of the Funds, Cornerstone Advisors, Inc., the investment
adviser to each of the Funds (the "Investment Adviser"), Bear Stearns Funds
Management Inc., the administrator to the Funds (the "Administrator" or "BSFM"),
and Georgeson Shareholder Communication, Inc., a proxy solicitation firm that
has been retained by the Funds. The Funds will bear the costs of solicitation.
An agreement between the Funds and Georgeson provides for Georgeson
to provide general solicitation services to the Funds at an estimated cost of
$8,000, plus expenses. The Funds will, upon request, bear the reasonable
expenses of brokers, bank and their nominees who are holders of record of the
Funds' voting securities on the record date, incurred in mailing copies of this
Proxy Statement/Prospectus to the beneficial owners of the Funds' voting
securities.
Only stockholders of record of each Fund at the close of business on
September __, 2002 (the "Record Date"), are entitled to vote. An outstanding
share of each Fund is entitled to one vote on all matters voted upon at a
meeting of the stockholders of that Fund. As of September __, 2002, there were
approximately __________ shares of EIS outstanding, and approximately
____________ shares of CRF outstanding.
EIS and CRF provide periodic reports to all of their stockholders.
These reports highlight relevant information including investment results and a
review of portfolio changes for each Fund. You may receive a copy of the most
recent annual and semi-annual reports for EIS or CRF, without charge, by calling
(212) 272-2093 or writing to the Secretary of the Fund c/o Bear Stearns Funds
Management Inc. located at 383 Madison Avenue, 23rd Floor, New York, New York
10179.
The Boards of Directors of the Funds know of no other business, other
than the proposals described above, which will be presented for consideration at
each Fund's respective Special Meeting. If any other matter is properly
presented, it is the intention of the persons named in the enclosed proxy to
vote on that matter in their discretion.
-6-
I. MERGER PROPOSAL TO BE VOTED ON BY STOCKHOLDERS OF EIS AND CRF.
PROPOSAL 1:
APPROVAL OF THE MERGER AGREEMENT AND PLAN
OF REORGANIZATION (THE "PLAN")
On August 2, 2002, the Boards of Directors of the Funds, including a
majority of the directors who are not "interested persons" (the "Non-interested
Directors"), unanimously:
(1) declared that the merger of CRF with and into EIS was in the best
interests of the Funds and the Stockholders,
(2) approved the Plan, and
(3) recommended that the stockholders of each Fund approve
the Plan.
Stockholders should note that the Board of Directors of the Funds are
identical, therefore, the Non-interested Directors are "non-interested" with
respect to each Fund s required by the Investment Company Act, they are not at
arms-length with respect to the proposed Merger. The Boards suggest that
stockholder carefully review the information contained in the Proxy
Statement/Prospectus before casting a vote.
For more information about the merger, see "Information about the
Merger."
The Plan is subject to the approval of the stockholders of both Funds
and certain other conditions. It provides for the merger (the "Merger") of CRF
with and into EIS in accordance with the New York Business Corporation Law
("BCL") and the Maryland General Corporation Law (the "MGCL").
As a result of the Merger:
- CRF will no longer exist,
- EIS will be the surviving corporation,
- each Eligible Share of common stock of CRF will convert into an
equivalent dollar amount (to the nearest one ten-thousandth of one
cent) of shares and fractional shares of common stock of EIS, based
on the net asset value per share of each Fund calculated at 4:00 p.m.
(New York time) on the business day preceding the Effective Date (the
"Conversion Ratio"), and
- each Ineligible Stockholder of CRF will receive cash equal to the
average market price for the five day trading period prior to the
Effective Date ("Cash Price"). The receipt of cash pursuant to the
Plan of Merger could have separate tax consequences to an Ineligible
Stockholder.
-7-
EIS's shares outstanding as of the Effective Date will remain issued
and outstanding. In connection with the Merger, EIS will issue that number of
shares that have an aggregate net asset value equal to the aggregate net asset
value of the outstanding shares of CRF. CRF will terminate its registration
under the Investment Company Act after the Merger.
In addition, as a consequence of the Merger, each Eligible
Stockholder of CRF will become a stockholder of EIS. On the Effective Date, each
Eligible Stockholder of CRF will receive that number of shares and fractional
shares of common stock of EIS having an aggregate net asset value equal to the
aggregate net asset value of such stockholder's shares held in CRF as of the
close of business on the business day preceding the Effective Date. A "Business
Day" is any day on which the NYSE is open for trading.
A copy of the Plan is attached to this Proxy Statement/Prospectus as
Exhibit A, and the description of the Plan included in this Proxy
Statement/Prospectus is qualified in its entirety by reference to Exhibit A.
The following provides a more detailed discussion about the Merger,
each Fund and additional information that you may find helpful in deciding how
to vote on the Merger Agreement.
SYNOPSIS
This summary highlights important information included in this Proxy
Statement/Prospectus. This summary is qualified by reference to the more
complete information included elsewhere in this Proxy Statement/Prospectus and
the Plan. Stockholders of each Fund should read this entire Proxy
Statement/Prospectus carefully.
THE PROPOSED MERGER.
The Boards of Directors of EIS and CRF, including the Non-interested
Directors of each Fund, have unanimously approved the Plan. The Plan provides
for the merger of CRF with and into EIS. As a result of the Merger:
- each Eligible Share of common stock of CRF will convert into an
equivalent dollar amount (to the nearest one ten-thousandth of one
cent) of shares and fractional shares of common stock of EIS, based
on the net asset value per share of each Fund calculated at 4:00 pm
(New York time) on the Business Day preceding the Effective Date;
- each Eligible Stockholder of CRF will become a stockholder of EIS
and will receive, on the Effective Date, that number of shares of
common stock of EIS having an aggregate net asset value equal to the
aggregate net asset value of such stockholder's shares held in CRF as
of the close of business on the Business Day preceding the Effective
Date (the "Exchange Ratio"); and
-8-
- each ineligible share of common stock of CRF will receive the Cash
Price.
If the Merger is not consummated, each Fund will continue as a
separate investment company, and the Board of Directors of each Fund will
consider such other alternatives as it determines to be in the best interests of
its stockholders.
FORM OF ORGANIZATION.
EIS and CRF are both closed-end, diversified management investment
companies, registered under the Investment Company Act. EIS was organized as a
New York corporation in 1973 and CRF was organized as a Maryland corporation in
1994. Each Fund's Board of Directors is responsible for the management of the
business and affairs of each Fund.
INVESTMENT OBJECTIVES AND POLICIES.
EIS's investment objective is capital appreciation with current
income as a secondary objective. CRF's investment objective is long-term capital
appreciation.
Each of the foregoing investment objectives are fundamental, and can
only be changed with the approval of the holders of a majority of each Fund's
outstanding voting securities as defined under the Investment Company Act.
The preceding summary of the Funds' investment objectives and certain
policies should be considered in conjunction with the discussion below under
"Risk Factors and Special Considerations" and "Comparison of Investment
Objectives and Policies."
NET ASSETS OF THE FUNDS
At June 30, 2002, EIS had net assets of $39,547,000 and CRF had net
assets of $46,44,000.
FEES AND EXPENSES--EIS AND CRF
Cornerstone Advisors, Inc. ("Cornerstone Advisors"), serves as EIS's
and CRF's investment adviser. The agreements between the Advisor and each Fund
are substantially identical. As compensation for its advisory services,
Cornerstone Advisors is contractually entitled to receive from each respective
Fund an annual fee of one percent (1%) of that respective Fund's average weekly
net assets payable on a monthly basis. On June 19, 2002, Cornerstone Advisors
agreed to immediately implement a voluntary expense reimbursement limitation
with regard to both funds which, as contemplated, the Advisor would voluntarily
waive its management fees to each Fund to the extent that each Fund's monthly
operating expenses exceed .10% of net assets calculated on a monthly basis. The
expenses of the proposed Merger are not regarded as "operating expenses". The
voluntary fee waiver may be changed or discontinued at any time after December
31, 2002 in the discretion of the Advisor. The voluntary expense limitation will
not, however, be affected by the Merger.
-9-
For the fiscal year ended December 31, 2001, Cornerstone Advisors
earned $286,915 for services performed for CRF. For the year to date, EIS has
paid the Advisor $127,019 and CRF has paid $218,931. CRF also paid $137,478 as
compensation to Clemente Capital, Inc., the Fund's investment adviser from
January 1, 2001 until March 31, 2001.
Bear Stearns Funds Management Inc. ("BSFM"), serves as both EIS's and
CRF's administrator. EIS and CRF each pay BSFM a monthly fee that is computed
weekly at an annual rate of 0.10% of the respective Fund's average weekly net
assets, subject to a minimum annual fee of $50,000. In addition to the fee, the
Fund is required to reimburse to the Administrator all out-of-pocket expenses
incurred by the Administrator for attendance at any meetings (outside the New
York metropolitan area) of the Board of Directors, or any committees of such
Board, or any other meetings or presentations for which the Administrator is
required to attend. For the year to date, BSFM earned $26,439 for services
performed on behalf of EIS and $26,439 for services performed on behalf of CRF.
Based on June 30, 2002 net assets and projected expenses for the year
2002, in the absence of an expense limitation, EIS's expense ratio would be
expected to be approximately _____%. Based on similar assumptions, EIS's expense
ratio after the Merger, not including the expenses of the Merger, is projected
to be approximately ____%. So long as the voluntary expense limitation described
above is in effect, EIS's expense ratio is expected to be 1.20%. The actual
expense ratios for the current and fiscal years, whether or nott the Merger
occurs, may be higher or lower than these projections and depend upon
performance, general stock market and economic conditions, net asset levels,
stock prices and other factors, as well as whether the voluntary expense
limitation is continued.
See "Expense Table" below for the current expenses of each Fund and
pro forma expenses following the Merger.
DISTRIBUTION POLICIES
In June 2002 both Funds announced distribution policies under which
they would distribute fixed monthly amounts. Such amounts have been distributed
in July and August and distributions have been declared by the Boards of
Directors for the months of September and October. Such distributions may be
treated as returns of capital, capital gain or ordinary income depending on each
Fund's tax position for the year as a whole. Stockholders will be advised of the
relevant treatment when the tax positions are known.
-10-
It is the intention of the current Board of Directors to continue its
current distribution policy after the Merger but there can be no guarantee that
the policy will be continued for any specific time period.
UNREALIZED CAPITAL GAINS.
As of July 12, 2002, EIS had approximately $4,659,162 of unrealized
capital losses. As of that same date, CRF had approximately $11,376,036 of
unrealized capital losses. As of July 12, 2002, EIS had approximately $91,132 of
capital loss carryforwards. CRF had approximately $12,825,121 of capital loss
carryforwards as of July 12, 2002.
The Board of Directors of each Fund considered these positions as part of
their overall process of considering the proposed Merger. They also considered
professional advice that they received regarding the future use of these various
capital loss categories to offset future capital gains. This professional advice
included the possibility that in some circumstances utilization of the capital
loss carryforwards might be restricted, in part because of the Merger. The
Boards also considered whether the ability to continue to utilized the capital
loss carryforwards should be made a condition to the effectiveness of the Merger
and concluded that it should not. The Boards concluded that in their respective
judgments, under all of the facts and circumstances known to them after
considering the advice of their professional advisers, the Merger is in the best
interests of both Funds and their stockholders, even if as a consequence there
may be "truncation" (restriction on the utilization) of the capital loss
carryforwards under the Internal Revenue Code."
FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER.
As a condition to the closing of the Merger, both Funds will receive
an opinion of Spitzer & Feldman P.C., counsel to the Funds, stating that the
Merger will constitute a tax-free reorganization within the meaning of Section
368(a)(1) of the Internal Revenue Code of 1986 (the "Code"). Accordingly,
neither CRF, EIS nor the Stockholders of EIS and the Eligible Stockholders of
CRF will recognize any gain or loss as a result of the Merger. The Ineligible
Stockholders of CRF may recognize gain or loss as a result of the Merger and
should consult with their independent tax advisers. The holding period and the
aggregate tax basis of EIS shares (including fractional shares) received by
Eligible Stockholders will be the same as the holding period and aggregate tax
basis of the shares of CRF previously held by the stockholder. The holding
period and the aggregate tax basis of the assets received by EIS in the Merger
will be the same as the holding period and the tax basis of such assets in the
hands of CRF immediately before the Merger. For more information about the tax
consequences of the Merger, see "Information about the Merger - Tax
Considerations."
DISCOUNT FROM NET ASSET VALUE.
Shares of closed-end funds frequently trade at a market price that is
less than the value of the fund's net assets. The possibility that shares of EIS
will trade at a discount from its net asset value is a risk separate and
distinct from the risk that the Fund's net asset value will decrease. Except for
limited periods of time, EIS's shares have traded in the market at a discount,
and, as of _________, 2002, the last trading day immediately before the
announcement of the Merger, traded at a market price discount of ______%.
Similarly, CRF shares have traded in the market at a discount and, as of that
same date, traded at a market price discount of
--------%.
-11-
EXPENSES OF THE MERGER.
In evaluating the proposed Merger, Cornerstone Advisors has estimated
the amount of expenses the Funds would incur as approximately $140,000, which
includes, but is not limited to, NYSE fees, SEC registration fees, legal and
accounting fees, proxy and distribution costs, and expenses incurred in
connection with the Merger. The aggregate amount of estimated expenses of the
Merger will be allocated equally between the Funds, regardless of whether the
Merger is consummated, including the SEC registration fees and the fees for
listing additional shares of EIS on the NYSE.
The expenses of the Merger are expected to result in a reduction in
net asset value per EIS share of approximately $0.03, and a reduction in net
asset value per CRF share of approximately $0.01.
EXPENSE TABLE
SHAREHOLDER TRANSACTION EXPENSES EIS CRF PRO FORMA, POST MERGER
--- --- ----------------------
Sales Load (as a percentage of offering price) N/A N/A N/A
Dividend Reinvestment and Cash Purchase Plan $0 $0 $0
Fees
ANNUAL EXPENSES(1)
Investment Advisory Fees 1.00% 1.00% 1.00%
OTHER EXPENSES(2) 1.09% 1.24 0.60%
----- ---- ----
TOTAL ANNUAL EXPENSES(3) 2.09%(4) 2.24% 1.60%
======== ===== =====
(1) The percentages in the above table expressing annual fund operating
expenses for CRF is based on the Fund's operating expenses
for the fiscal year ended December 31, 2001.
(2) Other Expenses include administration, fund accounting, custody and
transfer agency fees as well as legal and auditing annual expenses.
These figures do not reflect the expenses of the Merger.
(3) Total Annual Expenses do not reflect the effect of any expense
limitation reimbursement, but under such expense limitation
reimbursement Cornerstone Advisors will waive a portion of its
management fee and the Total Annual Expenses would be 1.20%.
(4) This does not reflect the effect of Cornerstone Advisers current
expense reimbursement limitation previously in effect whereby its fee
would be reduced if the Fund's expenses exceed 1.5% of the average
value of the Fund's net assets during such years up to $30,000,000
plus, 1% of the average value of the Fund's net assets during such
years in excess of $30,000,000.
Example. The purpose of the following example is to help you understand the
costs and expenses you may bear as an investor. This example is based on the
level of total annual operating expenses for each Fund listed in the table
above, the total expenses relating to a $1,000 investment, assuming a 5% annual
return and reinvestment of all dividends and distributions. Stockholders do not
pay these expenses directly, they are paid by the Funds before they distribute
net investment income to Stockholders. This example should not be considered a
representation of future expenses, and actual expenses may be greater or less
than those shown. Federal regulations require the example to assume a 5% annual
return, but actual annual returns will vary.
-12-
EIS CRF PRO FORMA, POST MERGER
1 Year $212 $227 $163
3 Years $655 $700 $505
5 Years $1,124 $1,200 $871
10 Years $2,421 $2,575 $1,900
PERFORMANCE.
The table below provides performance data for the period beginning on
January 1, 2002 up to June 30, 2002 for EIS and CRF based on each Fund's net
asset value and market value. It is important to note that prior to January 2,
2002, EIS's investment objective was to seek a high level of current income
through investments in a diversified portfolio consisting primarily of debt
securities. Therefore, EIS's performance for any year prior to January 1, 2002
would not be indicative of the performance of an investment company with its
current investment objective. Past performance is not a guarantee of future
results, and it is not possible to predict whether or how investment performance
will be affected by the Merger.
CUMULATIVE AVERAGE ANNUAL CUMULATIVE AVERAGE ANNUAL
NET ASSET VALUE (17.19)% (17.19)% (18.42)% (18.42)%
MARKET VALUE (16.67)% (16.67)% (16.09)% (16.09)%
FINANCIAL HIGHLIGHTS
The information required in this portion is being incorporated by
reference from each Funds Annual Report to Stockholders filed with the
Commission. This information was audited, except as noted, by
PricewaterhouseCoopers LLP whose reports, along with the Funds' financial
statements, are incorporated herein by reference and included in the Funds'
Annual Reports to Stockholders. The Annual Reports and Semi-Annual Reports may
be obtained without charge, by writing to the Secretary of the Fund c/o Bear
Stearns Funds Management Inc., 383 Madison Avenue, 23 Fl., New York, New York
10179, or by calling (212) 272-2093.
RISK FACTORS AND SPECIAL CONSIDERATIONS
Both EIS and CRF are closed-end management investment companies and
are designed primarily for long-term investors and not as trading vehicles.
-13-
STOCK MARKET VOLATILITY. Stock markets can be volatile. In other
words, the prices of stocks can rise or fall rapidly in response to developments
affecting a specific company or industry, or to changing economic, political or
market conditions. Each Fund is subject to the general risk that the value of a
Fund's investments may decline if the stock markets perform poorly. There is
also a risk that each Fund's investments will underperform either the securities
markets generally or particular segments of the securities markets.
ISSUER SPECIFIC CHANGES. Changes in the financial condition of an
issuer, changes in the specific economic or political conditions that affect a
particular type of security or issuer, and changes in general economic or
political conditions can affect the credit quality or value of an issuer's
securities. Lower-quality debt securities tend to be more sensitive to these
changes than higher-quality debt securities.
INTEREST RATE RISK. Debt securities have varying levels of
sensitivity to changes in interest rates. In general, the price of a debt
security can fall when interest rates rise and can rise when interest rates
fall. Securities with longer maturities and mortgage securities can be more
sensitive to interest rate changes although they usually offer higher yields to
compensate investors for the greater risks. The longer the maturity of the
security, the greater the impact a change in interest rates could have on the
security's price. In addition, short-term and long-term interest rates do not
necessarily move in the same amount or the same direction. Short-term securities
tend to react to changes in short-term interest rates and long-term securities
tend to react to changes in long-term interest rates.
CREDIT RISKS. Fixed income securities rated B or below by S&Ps or
Moody's may be purchased by either Fund. These securities have speculative
characteristics and changes in economic conditions or other circumstances are
more likely to lead to a weakened capacity of those issuers to make principal or
interest payments, as compared to issuers of more highly rated securities.
EXTENSION RISK. Each Fund is subject to the risk that an issuer will
exercise its right to pay principal on an obligation held by the Fund (such as
mortgage-backed securities) later than expected. This may happen when there is a
rise in interest rates. These events may lengthen the duration (i.e. interest
rate sensitivity) and potentially reduce the value of these securities.
ILLIQUID SECURITIES. Each Fund may invest up to 15% of its respective
net assets in illiquid securities. Illiquid securities may offer a higher yield
than securities which are more readily marketable, but they may not always be
marketable on advantageous terms. The sale of illiquid securities often requires
more time and results in higher brokerage charges or dealer discounts than does
the sale of securities eligible for trading on national securities exchanges or
in the over-the-counter markets. A security traded in the U.S. that is not
registered under the Securities Act of 1933 will not be considered illiquid if
Fund management determines that an adequate investment trading market exists for
that security. However, there can be no assurance that a liquid market will
exist for any security at a particular time.
-14-
INVESTMENT IN SMALL AND MID-CAPITALIZATION COMPANIES. Each Fund may
invest in companies with mid or small sized capital structures (generally a
market capitalization of $5 billion or less). Accordingly, the Fund may be
subject to the additional risks associated with investment in these companies.
The market prices of the securities of such companies tend to be more volatile
than those of larger companies. Further, these securities tend to trade at a
lower volume than those of larger more established companies. If the Fund is
heavily invested in these securities and the value of these securities suddenly
declines, the Fund will be susceptible to significant losses.
OVER-THE-COUNTER BULLETIN BOARD MARKETS. Each Fund may invest in
companies whose stock is trading on the over-the-counter Bulletin Board which
have only a limited trading market. A more active trading market may never
develop. The Fund may be unable to sell its investments in these companies on
any particular day due to the limited trading market.
ANTI-TAKEOVER PROVISIONS. Each Fund's Charter and Bylaws include
provisions that could limit the ability of other persons or entities to acquire
control of the Fund or to cause it to engage in certain transactions or to
modify its structure.
LEVERAGE RISK. Utilization of leverage is a speculative investment
technique and involves certain risks to the holders of common stock. These
include the possibility of higher volatility of the net asset value of the
common stock and potentially more volatility in the market value of the common
stock. So long as the Fund is able to realize a higher net return on its
investment portfolio than the then current cost of any leverage together with
other related expenses, the effect of the leverage will be to cause holders of
common stock to realize higher current net investment income than if the Fund
were not so leveraged. On the other hand, to the extent that the then current
cost of any leverage, together with other related expenses, approaches the net
return on the Fund's investment portfolio, the benefit of leverage to holders of
common stock will be reduced, and if the then current cost of any leverage were
to exceed the net return on the Fund's portfolio, the Fund's leveraged capital
structure would result in a lower rate of return to common stockholders than if
the Fund were not so leveraged. There can be no assurance that the Fund's
leverage strategy will be successful.
NON-U.S. SECURITIES RISK. Investments in securities of non-U.S.
issuers involve special risks not presented by investments in securities of U.S.
issuers, including the following: less publicly available information about
companies due to less rigorous disclosure or accounting standards or regulatory
practices; the impact of political, social or diplomatic events; possible
seizure, expropriation or nationalization of the company or its assets; and
possible imposition of currency exchange controls. These risks are more
pronounced to the extent that the Fund invests a significant amount of its
investments in companies located in one region.
-15-
DEBT SECURITY RISK. In addition to interest rate risk, call risk and
extension risk, debt securities are also subject to the risk that they may also
lose value if the issuer fails to make principal or interest payments when due,
or the credit quality of the issuer falls.
COMMON STOCK RISK. While common stock has historically generated
higher average returns than fixed income securities, common stock has also
experienced significantly more volatility in those returns. An adverse event,
such as an unfavorable earnings report or acts of terrorism, may depress the
value of common stock held by the Fund. Also, the price of common stock is
sensitive to general movements in the stock market. A drop in the stock market
may depress the price of common stock held by the Fund.
MARKET DISCOUNT FROM NET ASSET VALUE. Shares of closed end investment
companies frequently trade at a discount from their net asset value. This
characteristic is a risk separate and distinct from the risk that the Fund's net
asset value could decrease as a result of its investment activities and may be
greater for investors expecting to sell their shares in a relatively short
period following completion of this offering. The net asset value of the common
stock will be reduced immediately following the offering as a result of the
payment of certain offering costs. Whether investors will realize gains or
losses upon the sale of the common stocks will depend not upon the Fund's net
asset value but entirely upon whether the market price of the common stock at
the time of sale is above or below the investor's purchase price for the common
stock. Because the market price of the common stock will be determined by
factors such as relative supply of and demand for the common stock in the
market, general market and economic conditions, and other factors beyond the
control of the Fund, the Fund cannot predict whether the common shares will
trade at, below or above net asset value or at, below or above the initial
public offering price. In recent years, shares of both Funds have traded at a
discount to their respective net asset values.
COMPARISON OF INVESTMENT OBJECTIVES AND POLICIES
ORGANIZATION.
EIS and CRF are both closed-end, diversified investment companies
registered under the Investment Company Act. EIS was organized as a New York
corporation and CRF as a Maryland corporation. Each Fund is managed and advised
by Cornerstone Advisors. The shares of common stock of each Fund are listed and
trade on the NYSE under the symbols "EIS" and "CRF", respectively. After the
Merger, EIS's shares will continue to be traded on the NYSE, while CRF's shares
will be delisted and CRF will cease to exist. In the event the proposals are
approved, the Fund is seeking the approval to use the ticker symbol "CRF" for
listing on the New York Stock Exchange, however, no assurances can be given that
the Fund will be able to use "CRF" as the Fund's symbol.
-16-
The shares of common stock of each Fund have equal non-cumulative
voting rights and equal rights with respect to dividends, assets and
dissolution. Each Fund's shares of common stock are fully paid and
non-assessable and have no preemptive, conversion or other subscription rights.
Fluctuations in the market price of the Fund's shares is the principal
investment risk of an investment in either Fund. Portfolio management, market
conditions, investment policies and other factors affect such fluctuations.
Although the investment objectives, policies and restrictions of the Funds are
similar, there are differences between them, as discussed below. There can be no
assurance that either Fund will achieve its stated investment objective.
INVESTMENT OBJECTIVES.
EIS's investment objective is to seek capital appreciation with
current income as a secondary objective by investing primarily all of its assets
in equity securities of U.S. and non-U.S. issuers whose securities trade on a
U.S securities exchange or over the counter or as American Depositary Receipts
or other forms of depositary receipts such as International Depositary Receipts
which trade in the United States. Current income is a secondary objective that
will be achieved through the investment in U.S. debt securities.
CRF's investment objective is to seek long-term capital appreciation
by investing in securities of U.S. and non-U.S. issuers which Fund management
believes have demonstrated fundamental investment value and favorable growth
prospects. In general, CRF invests primarily in common stocks, preferred stocks,
rights, warrants and securities convertible into common stocks that are listed
on stock exchanges or traded over the counter.
Each Fund's foregoing investment objective cannot be changed without
the vote of a majority of each Fund's outstanding voting securities as defined
in the Investment Company Act. No assurance can be given that either Fund's
investment objective will be achieved.
COMPARISON OF INVESTMENT POLICIES.
EIS
EIS intends its investment portfolio, under normal market conditions,
to consist principally of the equity securities of large, mid and
small-capitalization companies. Equity securities in which the Fund may invest
include common and preferred stocks, convertible securities, warrants and other
securities having the characteristics of common stocks, such as ADRs and IDRs.
The Fund may, however, invest a portion of its assets in U.S. dollar denominated
debt securities when Fund management believes that it is appropriate to do so in
order to achieve the Fund's secondary investment objective, for example, when
interest rates are high in comparison to anticipated returns on equity
investments. Debt securities in which the Fund may invest include U.S. dollar
denominated bank, corporate or government bonds, notes, and debentures of any
maturity determined by Fund management to be suitable for investment by the
Fund. The Fund may invest in the securities of issuers that it determines to be
suitable for investment by the Fund regardless of their rating, provided,
however, that the Fund may not invest in debt securities that are determined by
Fund management to be rated below "BBB" by S&P or Moody's.
-17-
EIS's management utilizes a balanced approach, including "value" and
"growth" investing by seeking out companies at reasonable prices, without regard
to sector or industry, that demonstrate favorable long-term growth
characteristics. Valuation and growth characteristics may be considered for
purposes of selecting potential investment securities. In general in the
securities industry, valuation analysis is used to determine the inherent value
of the company by analyzing financial information such as a company's price to
book, price to sales, return on equity, and return on assets ratios, and growth
analysis is used to determine a company's potential for long-term dividends and
earnings growth due to market-oriented factors such as growing market share, the
launch of new products or services, the strength of its management and market
demand.
EIS may also invest up to 10% of its assets in the aggregate in the
securities of other investment companies and up to 5% of its assets in any one
such investment company, provided that such investment does not represent more
than 3% of the voting stock of the acquired investment company of which such
shares are purchased. As a shareholder in any investment company, the Fund will
bear its ratable share of the investment company's expenses and would remain
subject to payment of the Fund's advisory and administrative fees with respect
to the assets so invested.
EIS may invest up to 20% of the value of its total assets in illiquid
U.S. securities. The Fund will invest only in such illiquid securities that, in
the opinion of Fund management, present opportunities for substantial growth
over a period of two to five years.
EIS does not expect to trade in securities for short-term gains.
Higher portfolio turnover rates resulting from more actively traded portfolio
securities generally result in higher transaction costs, including brokerage
commissions and related capital gains or losses. Since the Fund's investment
policies emphasize long-term investment in the securities of companies, the
Fund's annual portfolio turnover rate is expected to be relatively low,
generally ranging between 25% and 75%.
CRF
Under normal market conditions CRF will invest at least 65% of its
total assets in securities of U.S. issuers and may invest up to 35% of its
assets in debt securities. In general, CRF invests primarily in common stocks,
preferred stocks, rights, warrants and securities convertible into common stocks
that are listed on stock exchanges or traded over the counter.
-18-
CRF may also invest up to 10% of its assets in the aggregate in the
securities of other investment companies and up to 5% of its assets in any one
such investment company, provided that such investment does not represent more
than 3% of the voting stock of the acquired investment company of which such
shares are purchased. As a shareholder in any investment company, the Fund will
bear its ratable share of the investment company's expenses and would remain
subject to payment of the Fund's advisory and administrative fees with respect
to the assets so invested.
CRF may invest up to 15% of its assets in illiquid U.S. and non-U.S.
securities, provided that the Fund may not invest more than 3% of the Fund's
assets in the securities of companies that, at the time of investment, had less
than a year of operations, including operations of predecessor companies. The
Fund will invest only in such illiquid securities that, in the opinion of Fund
management, present opportunities for substantial growth over a period of two to
five years.
CRF does not expect to trade in securities for short-term gains.
Higher portfolio turnover rates resulting from more actively traded portfolio
securities generally result in higher transaction costs, including brokerage
commissions and related capital gains or losses. Since the Fund's investment
policies emphasize long-term investment in the securities of companies, the
Fund's annual portfolio turnover rate is expected to be relatively low, ranging
between 50% and 75%.
Each Fund's foregoing investment policies may be changed by each
Fund's respective Board of Directors without shareholder vote.
EIS'S AND CRF'S NON-FUNDAMENTAL INVESTMENT POLICIES
TEMPORARY DEFENSIVE POSITIONS. Each Fund may, from time to time, take
temporary defensive positions that are inconsistent with its principal
investment strategies in attempting to respond to adverse market, economic,
political or other conditions. Such investments include various short-term
instruments. If a Fund takes a temporary defensive position at the wrong time,
the position would have an adverse impact on the Fund's performance and it may
not achieve its investment objective. Each Fund reserves the right to invest all
of its assets in temporary defensive positions.
SECURITIES LENDING. Each Fund may lend its portfolio securities to
broker-dealers in amounts equal to no more than 33 1/3% of the Fund's net
assets. These transactions will be fully collateralized at all times with cash
and/or high quality, short-term debt obligations. These transactions involve
risk to the Fund if the other party should default on its obligation and the
Fund is delayed or prevented from recovering the securities lent. In the event
the original borrower defaults on its obligation to return lent securities, the
Fund will seek to sell the collateral, which could involve costs or delays. To
the extent proceeds from the sale of collateral are less than the repurchase
price, the Fund would suffer a loss and you could lose money on your investment.
-19-
BORROWING. Each Fund may borrow money from banks for temporary or
emergency purposes. To reduce its indebtedness, the Fund may have to sell a
portion of its investments at a time when it may be disadvantageous to do so. In
addition, interest paid by the Fund on borrowed funds would decrease the net
earnings of the Fund
REPURCHASE AGREEMENTS. Each Fund may enter into repurchase agreements
collateralized by the securities in which it may invest. A repurchase agreement
involves the purchase by the Fund of securities with the condition that the
original seller (a bank or broker-dealer) will buy back the same securities
(collateral) at a predetermined price or yield. Repurchase agreements involve
certain risks not associated with direct investments in securities. In the event
the original seller defaults on its obligation to repurchase, the Fund will seek
to sell the collateral, which could involve costs or delays. To the extent
proceeds from the sale of collateral are less than the repurchase price, the
Fund would suffer a loss.
Under the Investment Company Act, neither Fund may (i) invest more
than 5% of its total assets in the securities of any one investment company, nor
(ii) acquire more than 3% of the outstanding voting securities of any such
company.
As a stockholder in any investment company, each Fund will bear its
ratable share of that investment company's expenses, and would remain subject to
payment of the company's advisory and administrative fees with respect to assets
so invested.
UNITED STATES FEDERAL INCOME TAXES
The following is a brief summary of certain United States federal
income tax issues that apply to each Fund. Stockholders should consult their own
tax advisers with regard to the federal tax consequences of the purchase,
ownership and disposition of each Fund's shares, as well as tax consequences
arising under the laws of any state, foreign country, or other taxing
jurisdiction.
Each Fund has qualified, and intends to continue to qualify and elect
to be treated, as a regulated investment company ("RIC"), for each taxable year
under Subchapter M of the Code. A RIC generally is not subject to federal income
tax on income and gains distributed in a timely manner to its stockholders.
-20-
Each Fund intends to distribute annually to its stockholders
substantially all of its investment company taxable income. The Board of
Directors of each Fund will determine annually whether to distribute any net
realized long-term capital gains in excess of net realized short-term capital
losses, including any capital loss carryovers. The Funds currently expect to
distribute any excess annually to their stockholders. However, if either Fund
retains for investment an amount equal to its net long-term capital gains in
excess of its net short-term capital losses and capital loss carryovers, it will
be subject to a corporate tax, currently at a rate of 35%, on the amount
retained. In that event, that Fund expects to designate such retained amounts as
undistributed capital gains in a notice to its stockholders who:
- will be required to include in income for United States federal
income tax purposes, as long-term capital gains, their proportionate
shares of the undistributed amount,
- will be entitled to credit their proportionate shares of the 35%
tax paid by that Fund on the undistributed amount against their
United States federal income tax liabilities, if any, and to claim
refunds to the extent their credits exceed their liabilities, if any,
and
- will be entitled to increase their tax basis, for United States
federal income tax purposes, in their shares by an amount equal to
65% of the amount of undistributed capital gains included in the
stockholder's income.
Income received by the Funds from sources within countries other than
the United States may be subject to withholding and other taxes imposed by such
countries, which will reduce the amount available for distribution to
stockholders. If more than 50% of the value of either Fund's total assets at the
close of its taxable year consists of securities of foreign corporations, that
Fund will be eligible and intends to elect to "pass-through" to stockholders the
amount of foreign income and similar taxes it has paid. Pursuant to this
election, stockholders of the electing Fund will be required to include in gross
income (in addition to the full amount of the taxable dividends actually
received) their pro rata share of the foreign taxes paid by that Fund. Each such
stockholder will also be entitled either to deduct (as an itemized deduction)
its pro rata share of foreign taxes in computing its taxable income or to claim
a foreign tax credit against its U.S. federal income tax liability, subject to
limitations. No deduction for foreign taxes may be claimed by a stockholder who
does not itemize deductions, but such a stockholder may be eligible to claim the
foreign tax credit. The deduction for foreign taxes is not allowable in
computing alternative minimum taxable income. Each stockholder will be notified
within 60 days after the close of that Fund's taxable year whether the foreign
taxes paid by the Fund will "pass through" for that year.
Generally, a credit for foreign taxes is subject to the limitation
that it may not exceed the stockholder's U.S. tax attributable to his or her
foreign source taxable income. For this purpose, if the pass-through election is
made, the source of each Fund's income flows through to its stockholders. Any
gains from the sale of securities by either Fund will be treated as derived from
U.S. sources and certain currency fluctuation gains, including fluctuation gains
from foreign currency-denominated debt securities, receivables and payables,
will be treated as ordinary income derived from U.S. sources. The limitation on
the foreign tax credit is applied separately to foreign source passive income
(as defined for purposes of the foreign tax credit), including the foreign
source passive income passed through by each Fund. Because of the limitation,
stockholders taxable in the United States may be unable to claim a credit for
the full amount of their proportionate share of the foreign taxes paid by each
Fund. The foreign tax credit also cannot be used to offset more than 90% of the
alternative minimum tax (as computed under the Code for purposes of this
limitation) imposed on corporations and individuals.
-21-
Stockholders will be notified annually by each Fund as to the United
States federal income tax status of the dividends, distributions and deemed
distributions made by the Fund to its stockholders. Furthermore, stockholders
will also receive, if appropriate, various written notices after the close of
each Fund's taxable year regarding the United States federal income tax status
of certain dividends, distributions and deemed distributions that were paid, or
that are treated as having been paid, by that Fund to its stockholders during
the preceding taxable year. For a more detailed discussion of tax matters
affecting each Fund and its stockholders, see "Taxation" in the SAI.
INFORMATION ABOUT THE MERGER
GENERAL.
Under the Plan, CRF will merge with and into EIS on the Effective
Date. As a result of the Merger and on the Effective Date:
- CRF will no longer exist, and
- EIS will be the surviving corporation
Each Eligible Share of outstanding stock of CRF will convert into an
equivalent dollar amount of shares of stock and fractional shares of stock of
EIS, based on the net asset value per share of each Fund calculated at 4:00 p.m.
(New York time) on the Business Day preceding the Effective Date. All Ineligible
Shares shall receive cash equal to the Cash Price. No sales charge or fee of any
kind will be charged to CRF stockholders in connection with their receipt of EIS
common stock in the Merger.
As noted above, under EIS's current By-laws, the Fund is not allowed
to transfer shares if such transfer would or might, in the reasonable opinion of
the Fund's Board of Directors, incur any responsibility for substantial expenses
or any responsibility of EIS to make any regulatory filings in any jurisdiction
outside the United States. As such, only Eligible Stockholders that are current
CRF stockholders will receive shares of EIS and any Ineligible Stockholders will
receive cash equal to the Cash Price. The Board of Directors of CRF determined
at the August 2, 2002 Quarterly Meeting of the Board of Directors that the
proposed merger was in the best interest of the Fund even though the potential
existed that less than 2% of CRF's stockholders would receive cash rather than
voting stock of EIS as a result of the Merger if approved by the stockholders.
-22-
Under Maryland and New York law, stockholders of a corporation whose
shares are traded publicly on a national securities exchange, such as the Funds'
shares, are not entitled to demand the fair value of their shares upon a merger;
therefore, the stockholders of the Funds will be bound by the terms of the
Merger. However, any stockholder of either Fund may sell his or her shares of
common stock at any time prior to the Effective Date on the NYSE.
The Plan may be terminated and the Merger abandoned, whether before
or after approval by the Funds' stockholders, at any time prior to the Effective
Date:
- by the mutual written consent of the Board of Directors of each
Fund, or
- by either Fund if the conditions to that Fund's obligations under
the Plan have not been satisfied or waived.
If the Merger has not been consummated by December 31, 2002, the Plan
automatically terminates on that date, unless a later date is mutually agreed
upon by the Board of Directors of each Fund.
REASONS FOR THE MERGER.
The Board of Directors of each Fund considered and unanimously
approved the proposed Merger at separate meetings of each Board held on August
2, 2002. For the reasons discussed below, the Board of Directors of each Fund,
including Non-interested Directors of each Fund, after consideration of the
potential benefits of the Merger to the stockholders of that Fund and the
expenses expected to be incurred by that Fund in connection with the Merger,
unanimously determined that:
- the interests of the existing stockholders of that Fund will not be
diluted as a result of the proposed Merger, and
- the proposed Merger is in the best interests of that Fund and its
stockholders.
Three principal factors led to the Boards of Directors to reach these
conclusions: (1) the Merger will create a larger Fund and, consequently, should,
all other factors being equal, result in an expense ratio that is lower than the
expense ratio of either Fund; (2) the larger Fund should provide better market
liquidity for stockholders who want to sell their shares or add to their
holdings; and (3) it has been a prime objective of each Board, through a variety
of actions, to reduce the discount at which shares trade. The Boards believe
that, all other things being equal, a lower expense ratio and better market
liquidity for the shares should lead to a lower discount.
IN THE JUDGMENT OF THE BOARD OF DIRECTORS OF EACH FUND, THE MERGER SERVES THE
BEST INTERESTS OF EACH FUND AND ITS STOCKHOLDERS.
-23-
Stockholders should note that the Boards of Directors of the two
Funds are identical. Therefore, although the Non-interested Directors are
"non-interested" with respect to each of the Funds under the Investment Company
Act, they are not at arm's length with respect to the proposed Merger.
The Boards also considered whether a larger asset base would provide
benefits in portfolio management. In addition, a larger asset size could result
in a more liquid trading market for shares of EIS than either Fund currently
enjoys separately, which might have a positive impact on the discount at which
each Fund's shares have tended to trade. Further, the Merger itself should focus
the attention of a wider circle of securities analysts on EIS, and after the
Merger, may facilitate securities analysts' following of this Fund because the
Merger may eliminate confusion in the marketplace that results from two funds
with a similar objective, and similar policies managed by the same adviser.
There can be no guarantee that any of these potential beneficial
results will be realized.
The Board of Directors of each Fund, in declaring advisable and
recommending the proposed Merger, also considered the following:
(1) the capabilities and resources of Cornerstone Advisors in the
area of investment management;
(2) expense ratios and information regarding fees and expenses of the
Funds, both currently and on a pro forma basis;
(3) the terms and conditions of the Merger and whether it would
result in dilution of the interests of each Fund and its existing
stockholders;
(4) the compatibility of each Fund's portfolio securities, investment
objective, policies and restrictions;
(5) the tax consequences to each Fund and its stockholders in
connection with the Merger;
(6) the consequences to any Persons that are ineligible to receive
shares of EIS common stock in connection with the Merger; and
(7) the anticipated expenses of the Merger.
In reviewing issues relating to the structure of the Merger and the
selection of the surviving corporation in the Merger, each Board also considered
information provided to them by Cornerstone Advisors concerning:
(1) the comparative performance records of the two Funds,
(2) public and market perception of the two Funds,
(3) the relative size of the two Funds,
-24-
(4) the investment policies, strategies and personnel Cornerstone
Advisors intends to utilize in managing the merged fund, and
(5) Cornerstone Advisors' recommendation that EIS be the surviving
corporation.
Based on the factors discussed above, the Board of Directors of each
Fund concluded that the expenses of the Merger are outweighed by the benefits
that are anticipated to be derived from the Merger. In addition, the Boards of
each Fund, including the Non-interested Directors of each Fund, have unanimously
concluded that:
- the Merger is in the best interests of each respective Fund, and
- the interests of existing Stockholders of each respective Fund will
not be diluted as a result of the transactions contemplated by the
Plan.
TERMS OF THE MERGER AGREEMENT.
The following is a summary of the significant terms of the Plan. This
summary is qualified in its entirety by reference to the Plan, attached hereto
as Exhibit A.
At the Effective Date, each share of Eligible Stock of CRF will
convert into an equivalent dollar amount of EIS common stock, based on the net
asset value per share of each Fund calculated at 4:00 p.m. (New York time) on
the Business Day preceding the Effective Date. EIS will issue fractional shares
to Eligible stockholders. All Ineligible Stockholders shall receive cash equal
to the Cash Price in exchange for their shares of CRF common stock.
For purposes of valuing assets in connection with the Merger, the
assets of CRF will be valued pursuant to the principles and procedures
consistently utilized by EIS, which principles and procedures are also utilized
by CRF in valuing its own assets and determining its own liabilities. As a
result, it is not expected that EIS's valuation procedures as applied to CRF's
portfolio securities will result in any difference from the valuation that would
have resulted from the application of CRF's valuation procedures to such
securities. The net asset value per share of EIS common stock will be determined
in accordance with these principles and procedures, and EIS will certify the
computations involved. The net asset value per share of each Fund will not be
adjusted to take into account differences in unrealized gains and losses, nor
will it be adjusted to take into account the potential value of tax loss
carryforwards, if any.
-25-
EIS will issue separate certificates or share deposit receipts for
EIS common stock to Eligible Stockholders. EIS will deliver these certificates
or share deposit receipts representing shares of EIS common stock to The Fifth
Third Bank, as the transfer agent and registrar for EIS common stock. EIS will
not permit any Eligible stockholder to receive new certificates representing
shares of EIS common stock until the stockholder has surrendered his or her
outstanding certificates representing shares of the common stock of CRF or, in
the event of lost certificates, posted adequate bond. CRF will request its
stockholders to surrender their outstanding certificates representing shares of
the common stock of CRF or post adequate bond therefor. Dividends payable to
holders of record of shares of EIS as of any date after the Effective Date and
prior to the exchange of certificates by any stockholder of CRF will be paid to
such stockholder, without interest; however, such dividends will not be paid
unless and until such stockholder surrenders his or her stock certificates of
CRF for exchange.
PLEASE DO NOT SEND IN ANY STOCK CERTIFICATES AT THIS TIME. UPON CONSUMMATION OF
THE MERGER, STOCKHOLDERS OF CRF WILL BE FURNISHED WITH INSTRUCTIONS FOR
EXCHANGING THEIR STOCK CERTIFICATES FOR EIS STOCK CERTIFICATES.
The net asset value of the EIS shares received by an Eligible
Stockholders will be equal to the aggregate net asset value of the CRF shares
exchanged. The cash received by an Ineligible Stockholder will be equal to the
Cash Price.
The Plan provides, among other things, that the Merger will not take
place without:
- the requisite approval of the stockholders of EIS and CRF, and
- the effectiveness of a Registration Statement on Form N-14.
The Plan may be terminated at any time prior to the Effective Date by
mutual agreement of each Fund's Board of Directors or by either Fund if the
other has violated a condition of the Plan. The Plan will automatically
terminate after December 31, 2002 if the Merger has not been consummated, unless
such time is extended by mutual agreement of the Board of Directors of each
Fund.
The Plan may be amended, modified or supplemented by mutual agreement
of CRF and EIS. However, no amendments which would have the effect of changing
the provisions for determining the number of shares issued to Eligible
Stockholders or cash to Ineligible Stockholders will be permitted following the
Meeting unless those stockholders consent to the amendment.
EXPENSES OF THE MERGER.
In evaluating the proposed Merger, Cornerstone Advisors has estimated
the amount of expenses the Funds would incur, including, but not limited to,
NYSE listing fees, SEC registration fees, legal and accounting fees, proxy and
distribution costs, and expenses incurred in connection with the Merger. The
estimated total expenses pertaining to the Merger is approximately $140,000. For
more information about the expenses of the Merger, See "Synopsis-Expenses of the
Merger."
The expenses of the Merger are expected to result in a reduction in
net asset value per EIS share of approximately $0.03, and a reduction in net
asset value per CRF share of approximately $0.01.
-26-
TAX CONSIDERATIONS.
The Plan and Merger are conditioned upon the receipt by the Funds of
an opinion from Spitzer & Feldman P.C., substantially to the effect that, based
upon the facts, assumptions and representations of the parties, for federal
income tax purposes:
- the Merger will constitute a tax-free "reorganization" within the
meaning of Section 368(a)(1) of the Code, and each Fund will be "a
party to a reorganization" within the meaning of Section 368(b) of
the Code,
- no gain or loss will be recognized by either Fund as a result of
the Merger,
- the basis of the assets of CRF in the hands of EIS will be the same
as the basis of such assets to CRF immediately prior to the Merger,
- the holding period of the assets of CRF in the hands of EIS will
include the period during which such assets were held by CRF,
- except for any Ineligible Stockholders that receive cash ("Boot"),
no gain or loss will be recognized by the Eligible Stockholders of
CRF upon the conversion of their CRF shares into EIS common stock,
- the basis of EIS shares received by the Eligible Stockholders will
be the same as the basis of the shares (including fractional share
interests) of CRF exchanged therefor, and
- the holding period of EIS shares (including fractional share
interests) received by the Eligible Stockholders will include the
holding period during which the shares of CRF exchanged therefor were
held, provided that at the time of the exchange the shares of CRF
were held as capital assets in the hands of the stockholders of CRF.
While CRF is not aware of any adverse state or local tax consequences
of the proposed Merger, it has not requested any ruling or opinion with respect
to such consequences and stockholders may wish to consult their own tax advisers
with respect to such matters.
The Board of Directors of each Fund considered these positions as
part of their overall process of considering the proposed Merger. They also
considered professional advice that they received regarding the future use of
these various capital loss categories to offset future capital gains. This
professional advice included the possibility that in some circumstances
utilization of the capital loss carryforwards might be restricted, in part
because of the Merger. The Boards also considered whether the ability to
continue to utilize the capital loss carryforwards should be made a condition to
the effectiveness of the Merger and concluded that it should not. The Boards
concluded that in their respective judgments, under all of the facts and
circumstances known to them after considering the advice of their professional
advisers, the Merger is in the best interests of both Funds and their
stockholders, even if as a consequence there may be "truncation" (restriction on
the utilization) of the capital loss carryforwards under the Internal Revenue
Code."
-27-
ADDITIONAL INFORMATION ABOUT THE FUNDS
DESCRIPTION OF SECURITIES TO BE ISSUED.
The authorized stock of EIS consists of Fifteen Million (15,000,000)
shares of common stock, U.S. $0.01 par value. Shares of EIS entitle its holders
to one vote per share. Holders of EIS's common stock are entitled to share
equally in dividends authorized by the Fund's Board of Directors payable to the
holders of such common stock and in the net assets of EIS available for
distribution to holders of such common stock. Shares have noncumulative voting
rights and no conversion, preemptive or other subscription rights, and are not
redeemable. The outstanding shares of common stock of EIS are fully paid and
non-assessable. In the event of liquidation, each share of common stock is
entitled to its proportion of the Fund's assets after payment of debts and
expenses. EIS holds stockholder meetings annually.
The following table shows information about the common stock of each
Fund as of June 30, 2002.
EIS AMOUNT AUTHORIZED AMOUNT HELD BY FUND AMOUNT OUTSTANDING
----
Common Stock 15,000,000 0 2,174,766
CRF
Common Stock 100,000,000 0 4,598,636
The shares of common stock of EIS and CRF are listed and trade on the
NYSE under the symbols "EIS" and "CRF", respectively. As of June 30, 2002, the
net asset value of EIS common stock was $15.32, and the market price per share
was $14.25. As of that same date, the net asset value of CRF common stock was
$8.59, and the market price per share was $7.25.
DISCOUNT TO NET ASSET VALUE.
Shares of closed-end investment companies, such as the Funds, have
frequently traded at a discount from net asset value. This characteristic is a
risk separate and distinct from the risk that the Funds' net asset values may
decrease, and this risk may be greater for stockholders expecting to sell their
shares in a relatively short period. THE SHARES OF COMMON STOCK OF THE FUNDS
SHOULD THUS BE VIEWED AS BEING DESIGNED PRIMARILY FOR LONG-TERM INVESTORS AND
SHOULD NOT BE CONSIDERED A VEHICLE FOR TRADING PURPOSES.
During the period since the inception of the Funds, the common stock
of both Funds has generally traded at a discount to net asset value, and does so
currently. It is not possible to state whether shares of EIS will trade at a
premium or discount to net asset value following the Merger, or the extent of
any such premium or discount. The Directors of both Funds have regularly
considered, and the Directors of EIS will continue to consider, the respective
Fund's market price discount and the effect of the discount on the Fund and its
stockholders.
-28-
PER SHARE DATA FOR EIS FUND, INC.
COMMON STOCK TRADED ON THE NYSE
Closing Market Closing Net Asset Premium/Discount
Quarter Ended High Price ($) Low Price ($) Price ($) Value ($)
3/31/99 16.37 16.37 16.37 18.73 (12.57)
6/30/99 15.50 15.50 15.50 18.12 (14.46)
9/30/99 15.18 15.18 15.18 18.16 (16.37)
12/31/99 14.25 14.25 14.25 17.67 (19.35)
3/31/00 14.56 14.56 14.56 17.86 (18.46)
6/30/00 15.00 15.00 15.00 17.92 (16.29)
9/30/00 15.50 15.50 15.50 18.09 (14.32)
12/31/00 15.87 15.87 15.87 18.26 (13.06)
3/31/01 17.15 17.15 17.15 18.81 (8.83)
6/30/01 17.10 17.10 17.10 18.50 (7.57)
9/30/01 17.35 17.35 17.35 n.a. n.a.
12/31/01 16.17 16.17 16.17 18.27 (11.49)
3/31/02 15.60 15.60 15.60 17.79 (12.31)
6/30/02 14.25 14.25 14.25 15.32 (6.98)
PER SHARE DATA FOR CORNERSTONE STRATEGIC VALUE FUND, INC.
COMMON STOCK TRADED ON THE NYSE
Closing Market Closing Net Asset Premium/Discount
Quarter Ended High Price ($) Low Price ($) Price ($) Value ($)
3/31/99 9.25 9.25 9.25 11.63 (20.46)
6/30/99 11.75 11.75 11.75 12.95 (9.27)
9/30/99 10.25 10.25 10.25 11.87 (13.65)
12/31/99 11.87 11.87 11.87 13.59 (12.62)
3/31/00 13.56 13.56 13.56 15.48 (12.39)
6/30/00 11.25 11.25 11.25 13.98 (19.53)
9/30/00 10.31 10.31 10.31 13.10 (21.28)
12/31/00 9.43 9.43 9.43 12.03 (21.55)
3/31/01 7.90 7.90 7.90 10.10 (21.78)
6/30/01 8.64 8.64 8.64 10.53 (17.95)
9/30/01 6.95 6.95 6.95 n.a. n.a.
12/31/01 8.49 8.49 8.49 10.14 (16.27)
3/31/02 8.60 8.60 8.60 9.94 (13.48)
6/30/02 7.25 7.25 7.25 8.59 (15.60)
-29-
CAPITALIZATION.
The following table shows on an unaudited basis the capitalization of
EIS and CRF as of June 30, 2002 and on a pro forma basis as of that same date
giving effect to the Merger:
(in thousands, except per share values)
EIS CRF PRO FORMA
Net Assets 39,547 46,440
Shares Outstanding(1) 2,161,091 4,631
NAV Per Share $18.30 $10.01
DIVIDENDS AND OTHER DISTRIBUTIONS.
Each Fund intends to distribute dividends from its net investment
income and any net realized capital gains after utilization of capital loss
carryforwards annually to prevent application of a federal excise tax. An
additional distribution may be made if necessary. Any dividends or capital gains
distributions declared in October, November or December with a record date in
such a month and paid during the following January will be treated by
stockholders for federal income tax purposes as if received on December 31 of
the calendar year in which it is declared. Dividends and distributions of each
Fund are invested in shares of the Fund at market value and credited to the
stockholder's account on the settlement date which is usually three Business
Days from the purchase date or, at the stockholder's election, paid in cash.
On June 19, 2002, CRF's Board of Directors authorized the
implementation of a fixed, monthly distribution policy whereby CRF would
distribute on a monthly basis $0.0925 per share to its stockholders. On the same
date stated above, EIS's Board of Directors reaffirmed their prior decision
which implemented a fixed, distribution policy whereby EIS will distribute on a
monthly basis $0.165 per share to its stockholders. Each distribution could
consist of either income, capital gains, return of capital or a combination of
all three. The Board of Directors of EIS, in its continuing discretion, intends
to continue a fixed, monthly distribution policy after the Merger.
PORTFOLIO VALUATION.
Investments of each Fund are stated at value in each Fund's financial
statements. All securities for which market quotations are readily available are
valued at the last sales price or lacking any sales, at the closing price last
quoted for the securities (but if bid and asked quotations are available, at the
mean between the current bid and asked prices). Securities that are traded
over-the-counter are valued at the mean between the current bid and the asked
prices, if available. All other securities and assets are valued at fair value
as determined in good faith by each Fund's Board of Directors. Short-term
investments having a maturity of 60 days or less are valued on the basis of
amortized cost. The Board of Directors of each Fund has established general
guidelines for calculating fair value of securities that are not readily
marketable. The net asset value per share of each Fund is made public weekly.
-30-
For purposes of valuing assets in connection with the Merger, the
assets of CRF will be valued pursuant to the principles and procedures
consistently utilized by EIS, which principles and procedures are also utilized
by CRF in valuing its own assets and determining its own liabilities. As a
result, it is not expected that EIS's valuation procedures as applied to CRF's
portfolio securities will result in any difference from the valuation that would
have resulted from the application of CRF's valuation procedures to such
securities.
DIVIDEND REINVESTMENT AND CASH PURCHASE PLAN.
Each Fund operates a Dividend Reinvestment and Cash Purchase Plan
(the "Program"), pursuant to which Fund dividends and distributions, net of any
applicable U.S. withholding tax, are reinvested in shares of the Fund. CRF's
Program is sponsored and administered by American Stock Transfer & Trust Co.
(the "CRF Agent"), and EIS's Program is sponsored and administered by
The Fifth Third Bank (the "EIS Agent"). Collectively, the CRF Agent and EIS
Agent shall be referred to hereinafter as the "Agent".
Stockholders who have shares registered directly in their own names
automatically participate in the respective Fund's Program, unless and until an
election is made to withdraw from the Program on behalf of such participating
stockholder. Stockholders who do not wish to have distributions automatically
reinvested should so notify the Agent. Under the Program, each of the Fund's
respective dividends and other distributions to stockholders are reinvested in
full and fractional shares as described below.
When the respective Fund declares an income dividend or a capital
gain or other distribution (each, a "Dividend" and collectively, "Dividends"),
the Agent, on the stockholders behalf, will (i) receive additional authorized
shares from the respective Fund either newly issued or repurchased from
stockholders by the Fund and held as treasury stock ("Newly Issued Shares") or,
(ii) at the sole discretion of the Board of Directors, be authorized to purchase
outstanding shares on the open market, on the NYSE or elsewhere, with cash
allocated to it by the respective Fund ("Open Market Purchases").
Shares acquired by the Agent in Open Market Purchases will be
allocated to the reinvesting stockholders based on the average cost of such Open
Market Purchases. Alternatively, the Agent will allocate Newly Issued Shares to
the reinvesting stockholders at a price equal to the average closing price of
the respective Fund over the five trading days preceding the payment date of
such dividend.
-31-
Registered stockholders who acquire their shares through Open Market
Purchases and who do not wish to have their Dividends automatically reinvested
should so notify the Fund in writing. If a stockholder has not elected to
receive cash Dividends and the Agent does not receive notice of an election to
receive cash Dividends prior to the record date of any Dividend, the stockholder
will automatically receive such Dividends in additional shares.
Participants in the Program may withdraw from the Program by
providing written notice to the Agent at least 30 days prior to the applicable
Dividend payment date. When a Participant withdraws from the Program, or upon
termination of the Program as provided below, certificates for whole shares
credited to his/her account under the Program will, upon request, be issued.
Whether or not a participant requests that certificates for whole shares by
issued, a cash payment will be made for any fraction of a share credited to such
account.
The Agent will maintain all stockholder accounts in the Program and
furnish written confirmations of all transactions in the accounts, including
information needed by stockholders for personal and tax records. The Agent will
hold shares in the account of each Program participant in non-certified form in
the name of the participant, and each stockholder's proxy will include those
shares purchased pursuant to the Program. Each participant, nevertheless, has
the right to receive certificates for whole shares owned. The Agent will
distribute all proxy solicitation materials to participating stockholders.
In the case of stockholders, such as banks, brokers or nominees, that
hold shares for others who are beneficial owners participating in the Program,
the Agent will administer the Program on the basis of the number of shares
certified from time to time by the record stockholder as representing the total
amount of shares registered in the stockholder's name and held for the account
of beneficial owners participating in the Program.
All correspondence concerning CRF's Program should be directed to the
CRF Agent at 59 Maiden Lane, New York, New York 10038. All correspondence
concerning EIS's Program should be directed to the EIS Agent at 38 Fountain
Square Plaza, Cincinnati, OH 45202.
CORPORATE GOVERNANCE PROVISIONS.
CRF
The By-laws of CRF contain provisions that could have the effect of
limiting the ability of other entities or persons to acquire control of the
Fund, to cause it to engage in certain transactions or to modify its structure.
The Board of Directors of CRF is divided into three classes each having a term
of three years. Each year, the term of one class expires and the successor or
successors elected to such class will serve for a three-year term. This
provision could delay the replacement of a majority of the Board of Directors
for up to two years.
In addition, the affirmative vote of at least sixty-six and
two-thirds (66 2/3%) of the holders of the shares of either of the Funds is
required to authorize any of the following transactions:
-32-
(i) merger, consolidation or share exchange of either of the Funds
with or into any Principal Shareholder (as defined below);
(ii) issuance by either of the Funds of any securities of either of
the Funds to any Principal Shareholder for cash;
(iii) sale, lease, or exchange by either of all or any substantial
part of the assets of the Funds to any Principal Shareholder (except
assets having an aggregate fair market value of less than $1,000,000
aggregating for the purpose of such computation all assets sold,
leased or exchanged in any series of similar transactions within a
twelve-month period); and
(iv) The sale, lease or exchange to the Funds, in exchange for
securities of the Funds, of any assets of any Principal Shareholder
(except assets having an aggregate fair market value of less than
$1,000,000 aggregating for the purpose of such computation all assets
sold, leased or exchanged in any series of similar transactions
within a twelve-month period).
CRF's By-laws contain provisions the effect of which is to prevent
matters, including nominations of directors, from being considered at
stockholders' meetings where the Fund has not received sufficient prior notice
of the matters.
The Board of Directors of CRF has determined that the foregoing
voting requirements are in the best interests of Stockholders generally.
A "Principal Shareholder" is defined in each Fund's respective
Articles of Incorporation as any corporation, person or other entity which is
the beneficial owner, directly or indirectly, of more than five percent (5%) of
the outstanding shares of any class of stock of the respective Fund and shall
include any affiliate or associate, as such terms are defined in clause (ii)
below, of a Principal Shareholder. In addition to the shares of stock which a
corporation, person or other entity beneficially owns directly, (a) any
corporation, person or other entity shall be deemed to be the beneficial owner
of any shares of stock of either of the Funds (i) which it has the right to
acquire pursuant to any agreement or upon exercise of conversion rights or
warrants, or otherwise (but excluding stock option granted by the respective
Fund), or (ii) which are beneficially owned, directly or indirectly (including
shares deemed owned through application of clause (i) above), by any other
corporation, person or entity with which it or its "affiliate" or "associate"
(as defined below) has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of stock of either Fund, or
which is its "affiliate" or "associate," as those terms are defined in Rule
12b-2 of the 1934 Act, and (b) the outstanding shares of any class of stock of
either Fund shall include shares deemed owned through application of clauses (i)
and (ii) above but shall not include any other shares which may be issuable
pursuant to any agreement, or upon exercise of conversions rights or warrants,
or otherwise.
-33-
EIS
While EIS's current By-laws do not contain any of the restrictions
that are contained in CRF's By-laws, it does contain a provision that does not
allow it to transfer shares if such transfer would or might, in the reasonable
opinion of the Fund's Board of Directors, incur any responsibility for
substantial expenses or any responsibility of EIS to make any regulatory filings
in any jurisdiction outside the United States. This provision will not allow the
Fund to issue shares of its common stock to any stockholders that would require
the Fund to incur any substantial expense or the responsibility to make any
regulatory filings in any jurisdiction outside of the United States.
PROVISIONS IN BOTH FUNDS BY-LAWS.
Each Fund's By-laws provide, among other things, that:
o certain advance notice requirements must be met in order for
Stockholders to submit proposals at annual meetings and for
nominations by stockholders for election to the Board of Directors,
and
o the power to amend the By-laws is reserved to the Board of
Directors, except as otherwise required by the Investment Company
Act.
MANAGEMENT OF THE FUNDS
DIRECTORS AND PRINCIPAL OFFICERS.
The business and affairs of each Fund are managed under the direction
of that Fund's Board of Directors, and the day-to-day operations are conducted
through or under the direction of the officers of that Fund.
-34-
Directors and Executive Officers of the Funds are as follows:
Term of Directorships held by
Office Nominee for Director outside
Name, Address and Age Position(s) Since Principal Occupation during of Fund Complex*
with Fund past 5 years
Ralph W. Bradshaw (51)** Chairman of 2001 President of Cornerstone Director of The SmallCap Fund
One West Pack Square the Board and Advisors, Inc.; President of
Suite 1650 President CRF, Cornerstone Strategic
Asheville, NC 28801 Value Fund, Inc. and
Progressive Return Fund, Inc.;
Vice President, Deep Discount
Advisors, Inc. (1993-1999).
Gary A. Bentz** (46) Vice 2001 Chief Financial Officer of
One West Pack Square President, Cornerstone Advisors, Inc.,
Suite 1650 Treasurer and Vice President and Treasurer
Asheville, NC 28801 Director of Progressive Return Fund,
Inc., Cornerstone Strategic
Value Fund, Inc. and CRF;
Chief Financial Officer of
Deep Discount Advisors, Inc.
(1993-2000).
Andrew A. Strauss (48) Director 2001 Attorney and senior member of Director of The Small Cap Fund, Inc.
77 Central Avenue Strauss & Associates, P.A., Memorial Mission Hospital Foundation
Suite F Attorneys, Asheville and and Deerfield Episcopal Retirement
Asheville, NC 28801 Hendersonville, N.C.; previous Community.
President of White Knight
Healthcare, Inc. and LMV
Leasing, Inc., a wholly owned
subsidiary of Xerox Credit
Corporation.
-35-
Glenn W. Wilcox, Sr. (70) Director 2001 Chairman of the Board and Director of The Small Cap Fund, Inc.
One West Pack Square Chief Executive Officer of Wachovia Corp.; Board Trustee and
Suite 1700 Wilcox Travel Agency. Chairman of Appalachian State
Asheville, NC 28801 University; and Board
Trustee and Director, Mars
Hill College; and Director,
Champion Industries, Inc.;
Chairman, Tower Associates,
Inc. (a real estate venture).
Scott B. Rogers (46) Director 2001 Chief Executive Officer, Director of A-B Vision
30 Cumberland Ave. Asheville Buncombe Community Board; Chairman and
Asheville, NC 28801 Christian Ministry; and Director, Recycling
President, ABCCM Doctor's Unlimited and
Medical Clinic; Appointee, NC Interdenominational
Governor's Commission on Ministerial Alliance; and
Welfare to Work. Director, Southeastern
Jurisdiction Urban
Networkers.
------------
* As of January 2, 2002, the Fund Complex is comprised of EIS, CRF,
Cornerstone Strategic Value Fund, Inc. and Progressive Return Fund, Inc.
all of which are managed by Cornerstone Advisors.
** Mr. Bradshaw and Mr. Bentz are "interested persons" as defined in the
Investment Company Act of 1940 ("Investment Company Act") because they are
both directors, officers and 50% shareholders in Cornerstone Advisors,
Inc., the Fund's investment manager.
All of the Directors listed above served on the Board of Directors
for each closed-end fund within the Fund Complex that was managed by Cornerstone
Advisors, Inc. ("Cornerstone Advisors"), the Fund's investment manager, during
the current fiscal year. In addition, Messrs. Thomas Lenagh and Edwin Meese III
are Directors of CRF, Cornerstone Strategic Value Fund, Inc. and Progressive
Return Fund, Inc. but are not directors of EIS.
The following table sets forth, for each Director and for the
Directors as a group, the amount of shares beneficially owned EIS as of June 30,
2002. The information as to beneficial ownership is based on statements
furnished to the Fund by each Director. Unless otherwise noted, beneficial
ownership is based on sole investment power.
Name of Director Amount of Securities Beneficially
Owned
Ralph W. Bradshaw 1,001
Gary A. Bentz 1,500
Andrew A. Strauss 400
Glenn W. Wilcox Sr. 1,000
Scott B. Rogers 0
All Directors as a Group 3,901
-36-
The following table sets forth, for each Director, the aggregate
dollar range of equity securities owned of the Fund and of all Funds overseen by
each Director in the Fund Complex as of June 30, 2002. The information as to
beneficial ownership is based on statements furnished to the Fund by each
Director.
------------------------------- ---------------------------
Name Dollar Range of Equity
Securities in the Fund.
------------------------------- ---------------------------
------------------------------- ---------------------------
Ralph A. Bradshaw $10,001-$50,000
------------------------------- ---------------------------
------------------------------- ---------------------------
Gary A. Bentz $10,001-$50,000
------------------------------- ---------------------------
------------------------------- ---------------------------
Andrew A. Strauss $1-$10,000
------------------------------- ---------------------------
------------------------------- ---------------------------
Glenn W. Wilcox Sr. $10,001-$50,000
------------------------------- ---------------------------
------------------------------- ---------------------------
Scott B. Rogers 0
------------------------------- ---------------------------
EXECUTIVE OFFICERS
In addition to Messrs. Bradshaw and Bentz, the other officer of the
Fund is:
Position(s) Term of
Name, Address and Age with Fund Office Principal Occupation during Directorships held by Officer
Since past 5 years
Thomas R. Westle (48) Secretary 2001 Partner of Spitzer & Feldman
405 Park Avenue P.C., a law firm, and previous
New York, NY 10022 Partner at Battle Fowler LLP;
Secretary of Progressive
Return Fund, Inc., Cornerstone
Strategic Value Fund, Inc. and
The Cornerstone Strategic
Return Fund, Inc.
ALL OF THE DIRECTORS AND OFFICERS OF EIS ALSO SERVE AS DIRECTORS AND
OFFICERS OF CRF. IN ADDITION TO THE DIRECTORS OF EIS LISTED ABOVE, THOMAS LENAGH
AND EDWIN MEESE III ARE DIRECTORS OF CRF.
Each Fund pays each of its directors who is not a director, officer,
partner, co-partner or employee of Cornerstone Advisors or any affiliate thereof
a stipend of $6,000, a fee in the amount of $600 per Board Meeting, and a fee of
$100 per Special Telephonic Board Meeting. In addition, each Fund will reimburse
those directors for travel and out-of-pocket expenses incurred in connection
with Board of Directors meetings.
The Articles of Incorporation and By-laws of each Fund provide that
the Fund will indemnify directors and officers and may indemnify employees or
agents of the Fund against liabilities and expenses incurred in connection with
litigation in which they may be involved because of their positions with the
Fund to the fullest extent permitted by law. In addition, each Fund's Articles
of Incorporation provide that the Fund's directors and officers will not be
liable to Stockholders for money damages, except in limited instances.
-37-
INVESTMENT ADVISER.
Cornerstone Advisors is the investment adviser to both EIS and CRF
pursuant to investment advisory agreements with each.
Cornerstone Advisors, which has its principal office at One West Pack
Square, Suite 1650, Asheville, North Carolina 28801, was organized in February
of 2001, to provide investment management services to closed-end investment
companies and is registered with the Securities and Exchange Commission under
the Investment Company Act. Cornerstone Advisors is the investment adviser to
two other closed-end funds, Cornerstone Strategic Value Fund, Inc. and
Progressive Return Fund, Inc.. Mr. Ralph W. Bradshaw, a Director and President
of EIS and CRF, serves as each Fund's portfolio manager.
Mr. Bradshaw and Mr. Gary A. Bentz, Directors of EIS Fund, Inc., are
the sole stockholders of Cornerstone Advisors. Messrs. Bradshaw and Bentz have
extensive experience with closed-end investment companies. Mr. Bradshaw, also
serves as a Director to Smallcap Fund, Inc., Cornerstone Strategic Value Fund,
Inc., and Progressive Return Fund, Inc., and served as a Vice President of Deep
Discount Advisors, Inc. ("Deep Discount") from 1993 to 1999. Mr. Bentz currently
serves as Treasurer and Vice President of EIS, CRF and the two other funds for
which Cornerstone Advisors serves as investment adviser, was also affiliated
with Deep Discount as its Chief Financial Officer from 1993 to 2000. Messrs.
Bradshaw and Bentz no longer possess any ownership interest in Deep Discount nor
do they provide any investment advisory services to Deep Discount or its
clients. Deep Discount and Ron Olin Investment Management Company ("ROIMC"),
both of which jointly filed a Schedule 13G with the Securities and Exchange
Commission (the "SEC") on February 13, 2002 as beneficial owners of more than
five (5%) percent of the outstanding shares of each Fund, are registered
investment advisers which, on behalf of their respective advisory clients,
invest in the common stock of closed-end investment companies. There are no
arrangements or understandings among Cornerstone Advisors, Deep Discount, ROIMC
or any of their respective stockholders with respect to the Funds.
Cornerstone Advisors has sole investment discretion for each Fund's
assets under the supervision of each Fund's Board of Directors and in accordance
with each Fund's stated policies. Cornerstone Advisors selects investments for
each Fund and places purchase and sale orders on behalf of the Funds.
ADMINISTRATOR.
Bear Stearns Funds Management Inc. ("BSFM") serves as each Fund's
administrator pursuant to an administrative agreement with each Fund. BSFM is
located at 383 Madison Avenue, 23rd Floor, New York, New York 10179.
-38-
BSFM provides office facilities and personnel adequate to perform the
following services for each Fund:
- oversight of the determination and publication of each Fund's net
asset value in accordance with the respective Fund's policy as
adopted from time to time by the respective Board of Directors,
- maintenance of the books and records of each Fund as required under
the Investment Company Act,
- preparation of each Fund's U.S. federal, state and local income tax
returns,
- preparation of financial information for each Fund's proxy
statements and semiannual and annual reports to Stockholders, and
- preparation of certain of each Fund's reports to the SEC.
As of June 30, 2002, BSFM provided accounting and/or administrative
services for 29 investment companies and investment partnerships, with combined
total assets of approximately $6.6 billion.
CUSTODIAN.
Custodial Trust Company, 101 Carnegie Center, Princeton, New Jersey,
is the custodian for both Funds' assets.
TRANSFER AGENT AND REGISTRAR.
American Stock Transfer & Trust Co., 59 Maiden Lane, New York, New
York 10038 acts as the transfer agent and registrar of CRF, and The Fifth Third
Bankacts as the transfer agent and registrar of EIS.
ESTIMATED EXPENSES.
Except as otherwise provided in the administrative services
agreements, Cornerstone Advisors and BSFM are each obligated to pay expenses
associated with providing the services contemplated by the agreements to which
they are parties, including compensation of and office space for their
respective officers and employees connected with investment and economic
research, trading and investment management and administration of each Fund, as
well as the fees of all directors of each Fund who are affiliated with those
companies or any of their affiliates. Each Fund pays all other expenses incurred
in the operation of that Fund including, among other things:
- expenses for legal and independent accountants' services,
- costs of printing proxies, stock certificates and stockholder
reports,
- charges of the custodians, and the transfer and dividend- paying
agent's expenses in connection with the Funds' Dividend Reinvestment
and Cash Purchase Plan,
-39-
- fees and expenses of unaffiliated directors,
- accounting and pricing costs, - membership fees in trade
associations,
- fidelity bond coverage for the Funds' officers and employees,
- directors' and officers' errors and omissions insurance coverage,
- brokerage costs and stock exchange fees,
- taxes,
- stock exchange listing fees and expenses, and
- other extraordinary or non-recurring expenses and other expenses
properly payable by the Funds.
CONTROL PERSONS AND PRINCIPAL HOLDERS OF SECURITIES.
The following table shows certain information based on filings made
with the SEC concerning persons who may be deemed beneficial owners of 5% or
more of the shares of common stock of either Fund because they possessed or
shared voting or investment power with respect to the shares of that Fund:
EIS CRF
SHARES OF COMMON SHARES OF COMMON
STOCK BENEFICIALLY OWNED STOCK BENEFICIALLY OWNED
NAME AND ADDRESS OF BENEFICIAL OWNER AMOUNT % AMOUNT %% OF
------------------------------------ ------------------------ ------------------------
Deep Discount Advisors, Inc.
One West Pack Square 277,200 12.8%(1) 1,188,400 25.0%(1)
Suite 777
Asheville, NC 28801
Ron Olin Investment Management Company 461,400 21.4%(1) 1,015,400 21.4%(1)
One West Pack Square
Suite 777
Asheville, NC 28801
Ronald G. Olin 288,000 13.3% (2)
One West Pack Square
Suite 777
Asheville, NC 28801
-----------------
(1) Based solely upon information presented in a Schedule 13G/A, dated
February 13, 2002 with respect to EIS and February 15, 2002, with respect
to CRF, filed jointly by Deep Discount Advisors, Inc. and Ron
Olin Investment Management Company. Pursuant to that Schedule 13G, each
respective entity has both sole voting and dispositive power, as well as
shared voting and dispositive power, over the shares beneficially owned.
(2) Based solely upon information presented in a Schedule 13G, dated
May 7, filed by Ron Olin.
-40-
All the directors and executive officers, as a group, of EIS, as of
June 30, 2002, owned less than 1% of the outstanding shares of EIS, and all the
directors and executive officers, as a group, of CRF, as of the same date, owned
less than 1% of the outstanding shares of CRF.
EXPERTS
Each Fund previously used PricewaterhouseCoopers LLP, Two Commerce
Square, Philadelphia, PA 19103, as its independent public accountants who
audited each Funds financial statements for the fiscal year ended December 31,
2001. The Stockholders of both EIS on April 18 and CRF on April 19, ratified the
selection of Tait, Weller & Baker as each Fund's respective independent
accountants for the year ending December 31, 2002.
REQUIRED VOTE
The Merger has been approved the Board of Directors of each Fund.
Approval of the Merger requires the affirmative vote of the holders of a
majority of the outstanding shares of common stock of each Fund. Therefore an
abstention is equivalent to a vote against the Merger. The Board of Directors of
each Fund recommends that the Stockholders vote "FOR" this Proposal 1.
LEGAL PROCEEDINGS
There are currently no material legal proceedings to which either
Fund is a party.
LEGAL OPINIONS
Certain legal matters in connection with the Merger will be passed
upon for the Funds by Spitzer & Feldman P.C.
-41-
II. ADDITIONAL PROPOSAL TO BE VOTED ON BY EIS STOCKHOLDERS WHICH WILL ONLY TAKE
EFFECT IN THE EVENT THAT PROPOSAL 1 IS APPROVED BY EIS AND CRF'S
STOCKHOLDERS.
EIS PROPOSAL 2
RATIFICATION OF THE CHANGE IN THE NAME OF THE FUND FROM "EIS FUND, INC."
TO "CORNERSTONE TOTAL RETURN FUND, INC."
In connection with the proposed merger of EIS and CRF, the Board of
Directors of EIS authorized an amendment to the EIS's Certificate of
Incorporation to change the name of the Fund from "EIS Fund, Inc." to
"Cornerstone Total Return Fund, Inc.", but only in the event that the proposed
merger is approved by the stockholders of EIS and CRF. Under the New York
Business Corporation Law, an amendment to a certificate of incorporation, which
changes the name of the corporation, must be authorized by the Board of
Directors and ratified by a majority of the outstanding shares entitled to vote.
At the Board of Directors Meeting held on August 2, 2002, the Board
of Directors unanimously authorized the amendment to the Certificate of
Incorporation to change the name of the Fund from "EIS, Inc." to "Cornerstone
Total Return Fund, Inc.", as set forth on Exhibit C.
Accordingly, the Board of Directors believes that, subject to
stockholder ratification of Proposal 2, changing the name of the Fund to
"Cornerstone Total Return Fund, Inc." is necessary and appropriate and in the
best interests of the Fund and its shareholders.
REQUIRED VOTE
Ratification of the name change requires the affirmative vote of the
holders of a majority of the Fund's outstanding voting securities. If the name
change is approved by the Fund's stockholders, such change will become effective
immediately following the filing of the Fund's Certificate of Amendment to the
Certificate of Incorporation with the New York State Department of State.
THE BOARD OF DIRECTORS, INCLUDING THE NON-INTERESTED DIRECTORS, RECOMMENDS THAT
THE STOCKHOLDERS VOTE "FOR" THE RATIFICATION OF THE AMENDMENT TO THE FUND'S
CERTIFICATE OF INCORPORATION TO CHANGE THE NAME OF THE FUND FROM "EIS FUND,
INC." TO "CORNERSTONE TOTAL RETURN FUND, INC."
-42-
ADDITIONAL INFORMATION
The Proxy Statement/Prospectus does not contain all of the
information set forth in the registration statements and the exhibits relating
thereto which the Funds have filed with the Commission, under the Securities Act
and the Investment Company Act, to which reference is hereby made.
The Funds are subject to the informational requirements of the
Exchange Act and in accordance therewith, file reports and other information
with the SEC. Reports, proxy statements, registration statements and other
information filed by the Funds can be inspected and copied at the public
reference facilities of the SEC in Washington, D.C. Copies of such materials
also can be obtained by mail from the Public Reference Branch, Office of
Consumer Affairs and Information Services, Securities and Exchange Commission,
Washington, D.C. 20594, at prescribed rates.
OTHER MATTERS TO COME BEFORE THE MEETING.
The Board of Directors of each Fund is not aware of any matters that
will be presented for action at the Meeting other than the matters set forth
herein. Should any other matters requiring a vote of Stockholders arise, the
proxy in the accompanying form will confer upon the person or persons entitled
to vote the shares represented by such proxy the discretionary authority to vote
the shares as to any such other matters in their discretion in the interest of
the respective Fund. PLEASE COMPLETE, SIGN AND RETURN THE ENCLOSED PROXY CARD(S)
PROMPTLY. NO POSTAGE IS REQUIRED IF MAILED IN THE UNITED STATES.
By order of the Boards of Directors of EIS Fund, Inc. and The Cornerstone
Strategic Return Fund, Inc.
EIS FUND, INC.
Ralph W. Bradshaw
President, EIS Fund, Inc.
THE CORNERSTONE STRATEGIC RETURN FUND, INC.
Ralph W. Bradshaw
President, The Cornerstone Strategic Return Fund,
Inc.
-43-
EXHIBIT A
MERGER AGREEMENT AND PLAN OF REORGANIZATION
THIS MERGER AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is
made as of this ____ day of October, 2002, between The Cornerstone Strategic
Return Fund, Inc. (the "Target Fund" or "CRF"), a Maryland corporation and a
registered investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"), and EIS Fund, Inc. (the "Acquiring Fund" or "EIS"), a
New York corporation and a registered investment company under the 1940 Act.
This agreement contemplates a tax-free merger transaction which
qualifies for federal income tax purposes as a reorganization within the meaning
of Section 368(a)(1)(A) of the Internal Revenue Code of 1986, as amended (the
"Code").
NOW, THEREFORE, in consideration of the covenants and agreements
hereinafter set forth, the Parties hereto agree as follows:
1. DEFINITIONS
Certain capitalized terms used in this Agreement are specifically
defined herein.
2. BASIC TRANSACTION
2.1 THE MERGER. On and subject to the terms and conditions of
this Agreement, the Target Fund will merge with and into the Acquiring Fund (the
"Merger") at the Effective Date (as defined in Section 2.3 below) in accordance
with the Maryland General Corporation Law ("MGCL") and New York Business
Corporation Law ("BSL"). EIS shall be the surviving investment company. CRF
shall cease to exist as a separate investment company.
Each share of CRF common stock eligible to receive shares of EIS's
common stock under the By-laws of EIS shall receive an equivalent dollar amount
(to the nearest one ten-thousandth of one cent) of shares and fractional shares
of Common Stock of EIS (the "CRF Eligible Shareholders"), with a par value of
$0.001 per share, based on the net asset value per share of each of the Parties
at 4:00 p.m. Eastern Time on the business day prior to the Effective Date (the
"Valuation Time"). Fractional shares of EIS will be issued to CRF Eligible
Shareholders. The Effective Date and the business day prior to it must each be a
day on which the NYSE is open for trading (a "Business Day").
Each Share of CRF common stock that is not eligible to receive shares
of EIS common stock under the By-laws of EIS (the "Ineligible Shareholders")
shall receive cash equal to the average market price for the five day trading
period prior to the Effective Date ("Cash Price") rather than any shares of EIS
common stock.
-1-
From and after the Effective Date, the Acquiring Company shall
possess all of the properties, assets, rights, privileges, powers and shall be
subject to all of the restrictions, liabilities, obligations, disabilities and
duties of CRF, all as provided under Maryland law.
2.2. ACTIONS AT CLOSING. At the closing of the transactions
contemplated by this Agreement (the "Closing") on the date thereof (the "Closing
Date"), (i) CRF will deliver to EIS the various certificates and documents
referred to in Article 7 below, (ii) EIS will deliver to CRF the various
certificates and documents referred to in Article 8 below, and (iii) CRF and EIS
will file jointly with the State Department of Assessments and Taxation of
Maryland (the "Department") articles of merger (the "Articles of Merger") and
the Certificate of Merger with the New York Secretary of State's Office, and
make all other filings or recordings required by Maryland and New York law in
connection with the Merger. The Articles of Merger, Certificate of Merger and
any other document required to be filed in order to consummate the merger shall
be referred to hereinafter as the "Merger Documents."
2.3. EFFECT OF MERGER. Subject to the requisite approvals of the
shareholders of the Parties, and to the other terms and conditions described
herein, the Merger shall become effective at such time as the Articles of Merger
and Certificate of Merger are accepted for record by the Department and the
Secretary of State or at such later time as is specified in the Merger Documents
(the "Effective Date") and the separate corporate existence of CRF shall cease.
As promptly as practicable after the Merger, CRF shall delist its shares from
the NYSE and its registration under the 1940 Act shall be terminated. Any
reporting responsibility of CRF is, and shall remain, the responsibility of CRF
up to and including the Effective Date.
3. REPRESENTATIONS AND WARRANTIES OF CRF
CRF represents and warrants to EIS that the statements contained in
this Article 3 are correct and complete in all material respects as of the
execution of this Agreement on the date hereof. CRF represents and warrants to,
and agrees with, EIS that:
3.1. ORGANIZATION. CRF is a corporation duly organized, validly
existing under the laws of the State of Maryland and is in good standing with
the Department, and has the power to own all of its assets and to carry on its
business as it is now being conducted and to carry out this Agreement.
3.2. REGISTRATIONS AND QUALIFICATIONS. CRF is duly registered
under the 1940 Act as a closed-end, diversified management investment company
(File No. 005-39655), and such registration has not been revoked or rescinded
and is in full force and effect. CRF has elected and qualified for the special
tax treatment afforded regulated investment companies ("RIC") under Sections
851-855 of the Code at all times since its inception. CRF is qualified as a
foreign corporation in every jurisdiction where required, except to the extent
that failure to so qualify would not have a material adverse effect on CRF.
-2-
3.3. REGULATORY CONSENTS AND APPROVALS. No consent, approval,
authorization, or order of any court or governmental authority is required for
the consummation by CRF of the transactions contemplated herein, except (i) such
as have been obtained or applied for under the Securities Act of 1933, as
amended (the "1933 Act"), the Securities Exchange Act of 1934 (the "1934 Act"),
and the 1940 Act, (ii) such as may be required by state securities laws and
(iii) such as may be required under Maryland law for the acceptance for record
of the Articles of Merger by the Department.
3.4. NONCONTRAVENTION. CRF is not, and the execution, delivery
and performance of this Agreement by CRF will not result in, a violation of the
laws of the State of Maryland or of the Articles of Incorporation or the By-laws
of CRF, or of any material agreement, indenture, instrument, contract, lease or
other undertaking to which CRF is a party or by which it is bound, and the
execution, delivery and performance of this Agreement by CRF will not result in
the acceleration of any obligation, or the imposition of any penalty, under any
agreement, indenture, instrument, contract, lease, judgment or decree to which
CRF is a party or by which it is bound.
3.5. FINANCIAL STATEMENTS. EIS has been furnished with CRF's
Annual Report of Stockholders, as of December 31, 2001, said financial
statements having been examined by PricewaterhouseCoopers LLP, independent
public auditors. These financial statements are in accordance with generally
accepted accounting principles applied on a consistent basis ("GAAP") and
present fairly, in all material respects, the financial position of CRF as of
such date in accordance with GAAP, and there are no known contingent liabilities
of CRF required to be reflected on a balance sheet (including the notes thereto)
in accordance with GAAP as of such date not disclosed therein.
EIS has also been furnished with CRF's Semi-Annual Report to
Stockholders dated as of June 30, 2001. This financial statement and the
schedule of investments are in accordance with GAAP and present fairly, in all
material respects, the financial position of CRF as of such date in accordance
with GAAP, and there are no known contingent liabilities of CRF required to be
reflected on a balance sheet (including the notes thereto) in accordance with
GAAP as of such date not disclosed therein.
3.6. This Section has been left intentionally Blank.
3.7. QUALIFICATION, CORPORATE POWER, AUTHORIZATION OF
TRANSACTION. CRF has full power and authority to enter into and perform its
obligations under this Agreement. The execution, delivery and performance of
this Agreement has been duly authorized by all necessary action of its Board of
Directors, and, subject to shareholder approval, this Agreement constitutes a
valid and binding contract enforceable in accordance with its terms, subject to
the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and
similar laws relating to or affecting creditors' rights generally and court
decisions with respect thereto.
-3-
3.8. LEGAL COMPLIANCE. No material litigation or administrative
proceeding or investigation of or before any court or governmental body is
presently pending (in which service of process has been received) or to its
knowledge threatened against CRF or any properties or assets held by it. CRF
knows of no facts which might form the basis for the institution of such
proceedings which would materially and adversely affect its business 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 herein contemplated.
3.9. MATERIAL CONTRACTS. There are no material contracts
outstanding to which CRF is a party that have not been disclosed in the N-14
Registration Statement (as defined in Section 3.13 below) or will not be
otherwise disclosed to EIS prior to the Effective Date.
3.10. UNDISCLOSED LIABILITIES. There has not been any material
adverse change in CRF's financial condition, assets, liabilities or business and
CRF has no known liabilities of a material amount, contingent or otherwise,
required to be disclosed in a balance sheet in accordance with GAAP other than
those shown on CRF's statements of assets, liabilities and capital referred to
above, those incurred in the ordinary course of its business as an investment
company, and those incurred in connection with the Merger. Prior to the
Effective Date, CRF will advise EIS in writing of all known liabilities,
contingent or otherwise, whether or not incurred in the ordinary course of
business, existing or accrued. For purposes of this Section 3.10, a decline in
net asset value per share of CRF due to declines in market values of securities
in CRF's portfolio or the discharge of CRF liabilities will not constitute a
material adverse change.
3.11. TAX FILINGS. All federal and other tax returns and
information reports of CRF required by law to have been filed shall have been
filed and are or will be correct in all material respects, and all federal and
other taxes shown as due or required to be shown as due on said returns and
reports shall have been paid or provision shall have been made for the payment
thereof, and, to the best of CRF's knowledge, no such return is currently under
audit and no assessment has been asserted with respect to such returns. All tax
liabilities of CRF have been adequately provided for on its books, and no tax
deficiency or liability of CRF has been asserted and no question with respect
thereto has been raised by the Internal Revenue Service or by any state or local
tax authority for taxes in excess of those already paid, up to and including the
taxable year in which the Effective Date occurs.
3.12. QUALIFICATION UNDER SUBCHAPTER M. For each taxable year of
its operation (including the taxable year ending on the Effective Date), CRF has
met the requirements of Subchapter M of the Code for qualification as a RIC 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, and will have distributed
substantially all of its investment company taxable income and net realized
capital gain (as defined in the Code) that has accrued through the Effective
Date.
-4-
3.13. FORM N-14.The registration statement to be filed by EIS on
Form N-14 relating to EIS common stock to be issued pursuant to this Agreement,
and any supplement or amendment thereto or to the documents therein, as amended
(the "N-14 Registration Statement"), on the effective date of the N-14
Registration Statement, at the time of the shareholders' meetings referred to in
Article 6 of this Agreement and at the Effective Date, insofar as it relates to
CRF (i) shall have complied or will comply in all material respects with the
provisions of the 1933 Act, the 1934 Act and the 1940 Act and the rules and
regulations thereunder and (ii) did not or will not contain 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 not misleading; and the
prospectus included therein did not or will not contain any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; provided, however, that the representations and warranties in
this Section 3.13 shall only apply to statements in, or omissions from, the N-14
Registration Statement made in reliance upon and in conformity with information
furnished by EIS for use in the N-14 Registration Statement.
3.14. CAPITALIZATION.
(a) All issued and outstanding shares of CRF (i) have been
offered and sold in compliance in all material respects with applicable
registration requirements of the 1933 Act and state securities laws, (ii) are,
and on the Effective Date will be, duly and validly issued and outstanding,
fully paid and non-assessable, and (iii) will be held at the time of the Closing
by the persons and in the amounts set forth in the records of the transfer agent
as provided in Section 6.7. CRF does not have outstanding any options, warrants
or other rights to subscribe for or purchase any of CRF shares, nor is there
outstanding any security convertible into, or exchangeable for, any of CRF
shares.
(b) CRF is authorized to issue 100,000,000 shares of stock, par
value $0.001 per share, all of which shares are classified as common stock and
each outstanding share of which is fully paid, non-assessable and has full
voting rights. 3.15. BOOKS AND RECORDS. The books and records of CRF made
available to EIS are substantially true and correct and contain no material
misstatements or omissions with respect to the operations of CRF.
4. REPRESENTATIONS AND WARRANTIES OF EIS
EIS represents and warrants to CRF that the statements contained in
this Article 4 are correct and complete in all material respects as of the
execution of this Agreement on the date hereof. EIS represents and warrants to,
and agrees with, CRF that:
4.1. ORGANIZATION. EIS is a corporation duly organized, validly
existing under the laws of the State of New York and is in good standing with
the Secretary of State, and has the power to own all of its assets and to carry
on its business as it is now being conducted and to carry out this Agreement.
-5-
4.2. REGISTRATIONS AND QUALIFICATIONS. EIS is duly registered
under the 1940 Act as a closed-end, diversified management investment company
(File No. 005-40528) and such registration has not been revoked or rescinded and
is in full force and effect. EIS has elected and qualified for the special tax
treatment afforded RICs under Sections 851-855 of the Code at all times since
its inception. EIS is qualified as a foreign corporation in every jurisdiction
where required, except to the extent that failure to so qualify would not have a
material adverse effect on EIS.
4.3. REGULATORY CONSENTS AND APPROVALS. No consent, approval,
authorization, or order of any court or governmental authority is required for
the consummation by EIS of the transactions contemplated herein, except (i) such
as have been obtained or applied for under the 1933 Act, the 1934 Act and the
1940 Act, (ii) such as may be required by state securities laws and (iii) such
as may be required under New York law for the acceptance for record of the
Certificate of Merger by the Secretary of State.
4.4. NONCONTRAVENTION. EIS is not, and the execution, delivery
and performance of this Agreement by EIS will not result, in violation of the
laws of the State of Maryland or of the Articles of Incorporation or the By-laws
of EIS, or of any material agreement, indenture, instrument, contract, lease or
other undertaking to which EIS is a party or by which it is bound, and the
execution, delivery and performance of this Agreement by EIS will not result in
the acceleration of any obligation, or the imposition of any penalty, under any
agreement, indenture, instrument, contract, lease, judgment or decree to which
EIS is a party or by which it is bound.
4.5. FINANCIAL STATEMENTS. CRF has been furnished with EIS's Annual Report to
Stockholders as of December 31, 2002, said financial statements having been
examined by PricewaterhouseCoopers LLP, independent public auditors. These
financial statements are in accordance with GAAP and present fairly, in all
material respects, the financial position of EIS as of such date in accordance
with GAAP, and there are no known contingent liabilities of EIS required to be
reflected on a balance sheet (including the notes thereto) in accordance with
GAAP as of such date not disclosed therein.
CRF has been furnished with EIS's Semi-Annual Report to Stockholders
dated as of June 30, 2002. This financial statement and schedule of investments
are in accordance with GAAP and present fairly, in all material respects the
financial position of EIS as of such date in accordance with GAAP, and there are
no known contingent liabilities of EIS required to be reflected on a balance
sheet (including the notes thereto) in accordance with GAAP as of such date not
disclosed therein.
4.6. This Section has been intentionally left blank.
4.7. QUALIFICATION, CORPORATE POWER, AUTHORIZATION OF
TRANSACTION. EIS has full power and authority to enter into and perform its
obligations under this Agreement. The execution, delivery and performance of
this Agreement has been duly authorized by all necessary action of its Board of
Directors, and, subject to shareholder approval, this Agreement constitutes a
valid and binding contract enforceable in accordance with its terms, subject to
the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and
similar laws relating to or affecting creditors' rights generally and court
decisions with respect thereto.
-6-
4.8. LEGAL COMPLIANCE. No material litigation or administrative
proceeding or investigation of or before any court or governmental body is
presently pending or to its knowledge threatened against EIS or any properties
or assets held by it. EIS knows of no facts which might form the basis for the
institution of such proceedings which would materially and adversely affect its
business 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 herein
contemplated.
4.9. MATERIAL CONTRACTS. There are no material contracts
outstanding to which EIS is a party that have not been disclosed in the N-14
Registration Statement or will not be otherwise disclosed to CRF prior to the
Effective Date.
4.10. UNDISCLOSED LIABILITIES. Since entering into this
Agreement, there has not been any material adverse change in EIS's financial
condition, assets, liabilities, or business and EIS has no known liabilities of
a material amount, contingent or otherwise, required to be disclosed in a
balance sheet with GAAP other than those shown on EIS's statements of assets,
liabilities and capital referred to above, those incurred in the ordinary course
of its business as an investment company since 1989, and those incurred in
connection with the Merger. Prior to the Effective Date, EIS will advise CRF in
writing of all known liabilities, contingent or otherwise, whether or not
incurred in the ordinary course of business, existing or accrued. For purposes
of this Section 4.10, a decline in net asset value per share of EIS due to
declines in market values of securities in EIS's portfolio or the discharge of
EIS liabilities will not constitute a material adverse change.
4.11. TAX FILINGS. All federal and other tax returns and
information reports of EIS required by law to have been filed shall have been
filed and are or will be correct in all material respects, and all federal and
other taxes shown as due or required to be shown as due on said returns and
reports shall have been paid or provision shall have been made for the payment
thereof, and, to the best of EIS's knowledge, no such return is currently under
audit and no assessment has been asserted with respect to such returns. All tax
liabilities of EIS have been adequately provided for on its books, and no tax
deficiency or liability of EIS has been asserted and no question with respect
thereto has been raised by the Internal Revenue Service or by any state or local
tax authority for taxes in excess of those already paid, up to and including the
taxable year in which the Effective Date occurs.
-7-
4.12. QUALIFICATION UNDER SUBCHAPTER M. For each taxable year of
its operation, EIS has met the requirements of Subchapter M of the Code for
qualification as a RIC 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, and
will have distributed substantially all of its investment company taxable income
and net realized capital gain (as defined in the Code) that has accrued through
the Effective Date.
4.13. FORM N-14.The N-14 Registration Statement, on the effective
date of the N-14 Registration Statement, at the time of the shareholders'
meetings referred to in Section 6 of this Agreement and at the Effective Date,
insofar as it relates to EIS (i) shall have complied or will comply in all
material respects with the provisions of the 1933 Act, the 1934 Act and the 1940
Act and the rules and regulations thereunder and (ii) did not or will not
contain 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
not misleading; and the prospectus included therein did not or will not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this Section 4.13 shall not apply to
statements in, or omissions from, the N-14 Registration Statement made in
reliance upon and in conformity with information furnished by CRF for use in the
N-14 Registration Statement.
4.14. CAPITALIZATION.
(a) All issued and outstanding shares of EIS (i) have been
offered and sold in compliance in all material respects with applicable
registration requirements of the 1933 Act and state securities laws, (ii) are,
and on the Effective Date will be, duly and validly issued and outstanding,
fully paid and non-assessable, and (iii) will be held at the time of the Closing
by the persons and in the amounts set forth in the records of the transfer
agent. EIS does not have outstanding any options, warrants or other rights to
subscribe for or purchase any of EIS shares, nor is there outstanding any
security convertible into, or exchangeable for, any of EIS shares.
(b) EIS is authorized to issue 15,000,000 shares of stock, par
value $0.01 per share, all of which shares are classified as common stock and
each outstanding share of which is fully paid, non-assessable and has full
voting rights.
4.15. ISSUANCE OF STOCK.
(a) The offer and sale of the shares to be issued pursuant to
this Agreement will be in compliance with all applicable federal and state
securities laws.
(b) At or prior to the Effective Date, EIS will have obtained
any and all regulatory, director and shareholder approvals necessary to issue
EIS common stock.
4.16. BOOKS AND RECORDS. The books and records of EIS made
available to CRF are substantially true and correct and contain no material
misstatements or omissions with respect to the operations of EIS.
-8-
5. CONVERSION TO EIS COMMON STOCK
5.1. CONVERSION.
(a) Subject to the requisite approval of the shareholders of
the parties, and the other terms and conditions contained herein, at the
Effective Date, each Eligible Share of common stock of CRF will be converted
into an equivalent dollar amount (to the nearest one ten-thousandth of one cent)
of shares of EIS common stock, computed based on the net asset value per share
of each of the parties at the Valuation Time.
(b) Fractional shares of EIS will be issued to CRF's Eligible
Shareholders.
5.2. COMPUTATION OF NET ASSET VALUE. The net asset value per
share of the Parties shall be determined as of the Valuation Time, and no
formula will be used to adjust the net asset value so determined of either of
the parties to take into account differences in realized and unrealized gains
and losses. The value of the assets of CRF to be transferred to EIS shall be
determined by EIS pursuant to the principles and procedures consistently
utilized by EIS in valuing its own assets and determining its own liabilities
for purposes of the Merger, which principles and procedures are substantially
similar to those employed by CRF when valuing its own assets and determining its
own liabilities. Such valuation and determination shall be made by EIS in
cooperation with CRF and shall be confirmed in writing by EIS to CRF. The net
asset value per share of EIS common stock shall be determined in accordance with
such procedures, and EIS shall certify the computations involved.
5.3. ISSUANCE OF EIS COMMON STOCK. EIS shall issue to the
shareholders of CRF separate certificates or share deposit receipts for EIS
common stock by delivering the certificates or share deposit receipts evidencing
ownership of EIS common stock to American Stock Transfer & Trust Co., as the
transfer agent and registrar for EIS common stock.
5.4. ISSUANCE OF CASH. All Ineligible Shareholders shall receive cash
equal to the average market price for the five day trading period prior to the
Effective Date ("Cash Price").
5.5. SURRENDER OF CRF STOCK CERTIFICATES. With respect to any
CRF shareholder holding certificates representing shares of the common stock of
CRF as of the Effective Date, and subject to EIS being informed thereof in
writing by CRF, EIS will not permit such shareholder to receive new certificates
evidencing ownership of EIS common stock until such shareholder has surrendered
his or her outstanding certificates evidencing ownership of the common stock of
CRF or, in the event of lost certificates, posted adequate bond. CRF will
request its shareholders to surrender their outstanding certificates
representing certificates of the common stock of CRF or post adequate bond
therefor. Dividends payable to holders of record of shares of EIS as of any date
after the Effective Date and prior to the exchange of certificates by any
shareholder of CRF shall be paid to such shareholder, without interest; however,
such dividends shall not be paid unless and until such shareholder surrenders
his or her stock certificates of CRF for exchange.
-9-
6. COVENANTS OF THE PARTIES
6.1. SHAREHOLDERS' MEETINGS.
(a) Each of the parties shall hold a meeting of its respective
shareholders for the purpose of considering the Merger as described herein,
which meeting has been called by each party for October __, 2002, and any
adjournments thereof.
(b) Each of the Parties agrees to mail to each of its
respective shareholders of record entitled to vote at the meeting of
shareholders at which action is to be considered regarding the Merger, in
sufficient time to comply with requirements as to notice thereof, a combined
Proxy Statement and Prospectus which complies in all material respects with the
applicable provisions of Section 14(a) of the 1934 Act and Section 20(a) of the
1940 Act, and the rules and regulations, respectively, thereunder.
6.2. OPERATIONS IN THE NORMAL COURSE. Each Party covenants to
operate its business in the ordinary course between the date hereof and the
Effective Date, it being understood that such ordinary course of business will
include (i) the declaration and payment of customary dividends and other
distributions and (ii) in the case of CRF, preparing for its deregistration,
except that the distribution of dividends pursuant to Sections 7.11 and 8.9 of
this Agreement shall not be deemed to constitute a breach of the provisions of
this Section 6.2.
6.3. MERGER DOCUMENTS. The Parties agree that, as soon as
practicable after satisfaction of all conditions to the Merger, they will
jointly file executed Merger Documents with the Department and Secretary of
State and make all other filings or recordings required by state law in
connection with the Merger.
6.4. REGULATORY FILINGS.
(a) CRF undertakes that, if the Merger is consummated, it will
file, or cause its agents to file, an application pursuant to Section 8(f) of
the 1940 Act for an order declaring that CRF has ceased to be a RIC.
(b) EIS will file the N-14 Registration Statement with the SEC
and will use its best efforts to ensure that the N-14 Registration Statement
becomes effective as promptly as practicable. CRF agrees to cooperate fully with
EIS, and will furnish to EIS the information relating to itself to be set forth
in the N-14 Registration Statement as required by the 1933 Act, the 1934 Act,
the 1940 Act, and the rules and regulations thereunder and the state securities
or blue sky laws.
(c) This Section has been intentionally left blank.
-10-
6.5. PRESERVATION OF ASSETS. EIS agrees that it has no plan or
intention to sell or otherwise dispose of the assets of CRF to be acquired in
the Merger, except for dispositions made in the ordinary course of business.
6.6. TAX MATTERS. Each of the Parties agrees that by the
Effective Date all of its federal and other tax returns and reports required to
be filed on or before such date shall have been filed and all taxes shown as due
on said returns either have been paid or adequate liability reserves have been
provided for the payment of such taxes. In connection with this covenant, the
Parties agree to cooperate with each other in filing any tax return, amended
return or claim for refund, determining a liability for taxes or a right to a
refund of taxes or participating in or conducting any audit or other proceeding
in respect of taxes. EIS agrees to retain for a period of ten (10) years
following the Effective Date all returns, schedules and work papers and all
material records or other documents relating to tax matters of CRF for its final
taxable year and for all prior taxable periods. Any information obtained under
this Section 6.6 shall be kept confidential except as otherwise may be necessary
in connection with the filing of returns or claims for refund or in conducting
an audit or other proceeding. After the Effective Date, EIS shall prepare, or
cause its agents to prepare, any federal, state or local tax returns, including
any Forms 1099, required to be filed and provided to required persons by CRF
with respect to its final taxable years ending with the Effective Date and for
any prior periods or taxable years for which the due date for such return has
not passed as of the Effective Date and further shall cause such tax returns and
Forms 1099 to be duly filed with the appropriate taxing authorities and provided
to required persons. Notwithstanding the aforementioned provisions of this
Section 6.6, any expenses incurred by EIS (other than for payment of taxes) in
excess of any accrual for such expenses by CRF in connection with the
preparation and filing of said tax returns and Forms 1099 after the Effective
Date shall be borne by EIS.
6.7. SHAREHOLDER LIST. Prior to the Effective Date, CRF shall
have made arrangements with its transfer agent to deliver to EIS, a list of the
names and addresses of all of the shareholders of record of CRF on the Effective
Date and the number of shares of common stock of CRF owned by each such
shareholder, certified by CRF's transfer agent or President to the best of their
knowledge and belief.
6.8. DELISTING, TERMINATION OF REGISTRATION AS AN INVESTMENT
COMPANY. CRF agrees that the (i) delisting of the shares of CRF with the NYSE
and (ii) termination of its registration as a RIC will be effected in accordance
with applicable law as soon as practicable following the Effective Date.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF EIS
The obligations of EIS hereunder shall be subject to the following
conditions:
7.1. APPROVAL OF MERGER. This Agreement shall have been adopted
by the affirmative vote of the holders of a majority of the shares of common
stock of EIS issued and outstanding and entitled to vote thereon and the
affirmative vote of the holders of a majority of the shares of common stock of
CRF issued and outstanding and entitled to vote thereon; and CRF shall have
delivered to EIS a copy of the resolutions approving this Agreement adopted by
its Board of Directors and shareholders, certified by its secretary.
-11-
7.2. CERTIFICATES AND STATEMENTS BY CRF.
(a) CRF shall have furnished a statement of assets, liabilities
and capital, together with a schedule of investments with their respective dates
of acquisition and tax costs, certified on its behalf by its President (or any
Vice President) and its Treasurer, and a certificate executed by both such
officers, dated the Effective Date, certifying that there has been no material
adverse change in its financial position since the Agreement was entered into,
other than changes in its portfolio securities since that date or changes in the
market value of its portfolio securities.
(b) CRF shall have furnished to EIS a certificate signed by its
President (or any Vice President), dated the Effective Date, certifying that as
of the Effective Dates, all representations and warranties made in this
Agreement are true and correct in all material respects as if made at and as of
such date and each has complied with all of the agreements and satisfied all of
the conditions on its part to be performed or satisfied at or prior to such
dates.
(c) CRF shall have delivered to EIS a letter from Tait, Weller
& Baker, dated the Effective Date, stating that such firm has performed a
limited review of the federal, state and local income tax returns for the period
ended December 31, 2001, and that based on such limited review, nothing came to
their attention which caused them to believe that such returns did not properly
reflect, in all material respects, the federal, state and local income taxes of
CRF for the period covered thereby; and that for the period from December 31,
2001 to and including the Effective Date and for any taxable year ending upon
the Effective Date, such firm has performed a limited review to ascertain the
amount of such applicable federal, state and local taxes, and has determined
that either such amount has been paid or reserves have been established for
payment of such taxes, this review to be based on unaudited financial data; and
that based on such limited review, nothing has come to their attention which
caused them to believe that the taxes paid or reserves set aside for payment of
such taxes were not adequate in all material respects for the satisfaction of
federal, state and local taxes for the period from December 31, 2001, to and
including the Effective Date and for any taxable year ending upon the Effective
Date or that CRF would not continue to qualify as a RIC for federal income tax
purposes.
7.3. ABSENCE OF LITIGATION. There shall be no material litigation
pending with respect to the matters contemplated by this Agreement.
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7.4. LEGAL OPINIONS.
(a) EIS shall have received an opinion of ______________, as
counsel to CRF, in form and substance reasonably satisfactory to EIS and dated
the Effective Date, to the effect that (i) CRF is a corporation duly organized,
validly existing under the laws of the State of Maryland and in good standing
with the Department; (ii) the Agreement has been duly authorized, executed and
delivered by CRF, and, assuming that the N-14 Registration Statement complies
with the 1933 Act, 1934 Act and the 1940 Act, constitutes a valid and legally
binding obligation of CRF, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws pertaining to the enforcement of creditors' rights generally and by
equitable principles; (iii) to the best of such counsel's knowledge, no consent,
approval, authorization or order of any United States federal or Maryland state
court or governmental authority is required for the consummation by CRF of the
Merger, except such as may be required under the 1933 Act, the 1934 Act, the
1940 Act, the published rules and regulations of the SEC thereunder and under
Maryland law and such as may be required by state securities or blue sky laws;
(iv) such counsel does not know of any contracts or other documents with respect
to CRF related to the Merger of a character required to be described in the N-14
Registration Statement which are not described therein or, if required to be
filed, filed as required; (v) the execution and delivery of this Agreement does
not, and the consummation of the Merger will not, violate any material provision
of the Articles of Incorporation, as amended, the by-laws, as amended, or any
agreement (known to such counsel) to which CRF is a party or by which CRF is
bound, except insofar as the parties have agreed to amend such provision as a
condition precedent to the Merger; (vi) to the best of such counsel's knowledge,
no material suit, action or legal or administrative proceeding is pending or
threatened against CRF; and (vii) all corporate actions required to be taken by
CRF to authorize this Agreement and to effect the Merger have been duly
authorized by all necessary corporate actions on behalf of CRF. Such opinion
shall also state that (A) while such counsel cannot make any representation as
to the accuracy or completeness of statements of fact in the N-14 Registration
Statement or any amendment or supplement thereto with respect to CRF, nothing
has come to their attention that would lead them to believe that, on the
respective effective dates of the N-14 Registration Statement and any amendment
or supplement thereto with respect to CRF, (1) the N-14 Registration Statement
or any amendment or supplement thereto contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading with respect
to CRF, and (2) the prospectus included in the N-14 Registration Statement
contained any untrue statement of a material fact or omitted to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading with respect to CRF;
provided that such counsel need not express any opinion or belief as to the
financial statements, other financial data, statistical data or information
relating to the CRF contained or incorporated by reference in the N-14
Registration Statement. In giving the opinion set forth above, _______________
may state that it is relying on certificates of officers of CRF with regard to
matters of fact and certain certificates and written statements of governmental
officials with respect to the good standing of CRF and on the opinion of
______________, as to matters of Maryland law.
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(b) EIS shall have received an opinion from Spitzer & Feldman
P.C., as counsel to EIS, dated the Effective Date, to the effect that for
federal income tax purposes (i) the Merger as provided in this Agreement will
constitute a reorganization within the meaning of Section 368(a)(1)(A) of the
Code and that EIS and CRF will each be deemed a "party" to a reorganization
within the meaning of Section 368(b) of the Code; (ii) no gain or loss will be
recognized to CRF as a result of the Merger or the conversion of CRF shares to
EIS common stock; (iii) no gain or loss will be recognized to EIS as a result of
the Merger; (iv) in accordance with Section 354(a)(1) of the Code, no gain or
loss will be recognized to the Eligible Shareholders of CRF on the conversion of
their shares into EIS common stock; (v) gain or loss may be recognized by the
Inelgible Shareholders of CRF on the consummation of the Merger; (vi) the tax
basis of CRF assets in the hands of EIS will be the same as the tax basis of
such assets in the hands of CRF prior to the consummation of the Merger; (vii)
immediately after the Merger, the tax basis of EIS common stock received by the
shareholders of CRF in the Merger will be equal, in the aggregate, to the tax
basis of the shares of CRF converted pursuant to the Merger; (viii) a
shareholder's holding period for EIS common stock will be determined by
including the period for which he or she held the common stock of CRF converted
pursuant to the Merger, provided that such CRF shares were held as a capital
asset; and (ix) EIS's holding period with respect to CRF assets transferred will
include the period for which such assets were held by CRF.
7.5. AUDITOR'S CONSENT AND CERTIFICATION. EIS shall have
received from Tait, Weller & Baker a letter dated as of the effective date of
the N-14 Registration Statement and a similar letter dated within five days
prior to the Effective Date, in form and substance satisfactory to EIS, to the
effect that (i) they are independent public auditors with respect to CRF within
the meaning of the 1933 Act and the applicable published rules and regulations
thereunder; and (ii) in their opinion, the financial statements and
supplementary information of CRF included or 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 published rules and regulations thereunder.
7.6. LIABILITIES. The assets or liabilities of CRF to be
transferred to EIS shall not include any assets or liabilities which EIS, by
reason of limitations in its Registration Statement or Articles of
Incorporation, may not properly acquire or assume. EIS does not anticipate that
there will be any such assets or liabilities but EIS will notify CRF if any do
exist and will reimburse CRF for any reasonable transaction costs incurred by
CRF for the liquidation of such assets and liabilities.
7.7. EFFECTIVENESS OF N-14 REGISTRATION STATEMENT. The N-14
Registration Statement shall have become effective under the 1933 Act and no
stop order suspending such effectiveness shall have been instituted or, to the
knowledge of EIS, contemplated by the SEC.
7.8. REGULATORY FILINGS.
(a) This Section has been intentionally left blank.
(b) This Section has been intentionally left blank.
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7.9. ADMINISTRATIVE RULINGS, PROCEEDINGS. The SEC shall not have
issued an unfavorable advisory report under Section 25(b) of the 1940 Act, nor
instituted or threatened to institute any proceeding seeking to enjoin
consummation of the Merger under Section 25(c) of the 1940 Act; no other legal,
administrative or other proceeding shall be instituted or threatened which would
materially affect the financial condition of CRF or would prohibit the Merger.
7.10. SATISFACTION OF PROGRESSIVE RETURN FUND, INC. All proceedings
taken by CRF and its counsel in connection with the Merger and all documents
incidental thereto shall be satisfactory in form and substance to EIS.
7.11. DIVIDENDS.Prior to the Effective Date, CRF shall have declared
and paid a dividend or dividends which, together with all such previous
dividends, shall have the effect of distributing to its shareholders
substantially all of its net investment company taxable income that has accrued
through the Effective Date, if any (computed without regard to any deduction of
dividends paid), and substantially all of its net capital gain, if any, realized
through the Effective Date.
7.12. CUSTODIAN'S CERTIFICATE. CRF's custodian shall have
delivered to EIS a certificate identifying all of the assets of CRF held or
maintained by such custodian as of the Valuation Time.
7.13. BOOKS AND RECORDS. CRF's transfer agent shall have provided
to EIS (i) the originals or true copies of all of the records of CRF in the
possession of such transfer agent as of the Exchange Date, (ii) a certificate
setting forth the number of shares of CRF outstanding as of the Valuation Time,
and (iii) the name and address of each holder of record of any shares and the
number of shares held of record by each such shareholder.
8. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF CRF
The obligations of CRF hereunder shall be subject to the following
conditions:
8.1. APPROVAL OF MERGER. This Agreement shall have been adopted,
by the affirmative vote of the holders of a majority of the shares of Common
Stock of CRF issued and outstanding and entitled to vote thereon and the
affirmative vote of the holders of a majority of the shares of common stock of
EIS issued and outstanding and entitled to vote thereon; and that EIS shall have
delivered to CRF a copy of the resolutions approving this Agreement adopted by
its Board of Directors and shareholders, certified by its secretary.
8.2. CERTIFICATES AND STATEMENTS BY EIS.
(a) EIS shall have furnished a statement of assets, liabilities
and capital, together with a schedule of investments with their respective dates
of acquisition and tax costs, certified on its behalf by its President (or any
Vice President) and its Treasurer, and a certificate executed by both such
officers, dated the Effective Date, certifying that there has been no material
adverse change in its financial position since the Agreement was entered into,
other than changes in its portfolio securities since that date or changes in the
market value of its portfolio securities.
-15-
(b) EIS shall have furnished to CRF a certificate signed by its
President (or any Vice President), dated the Effective Date, certifying that as
of the Effective Date, all representations and warranties made in this Agreement
are true and correct in all material respects as if made at and as of such date
and each has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied at or prior to such dates.
(c) EIS shall have delivered to CRF a letter from Tait, Weller
& Baker, dated the Effective Date, stating that such firm has performed a
limited review of the federal, state and local income tax returns for the period
ended December 31, 2001, and that based on such limited review, nothing came to
their attention which caused them to believe that such returns did not properly
reflect, in all material respects, the federal, state and local income taxes of
EIS for the period covered thereby; and that for the period from December 31,
2001 to and including the Effective Date, such firm has performed a limited
review to ascertain the amount of such applicable federal, state and local
taxes, and has determined that either such amount has been paid or reserves
established for payment of such taxes, this review to be based on unaudited
financial data; and that based on such limited review, nothing has come to their
attention which caused them to believe that the taxes paid or reserves set aside
for payment of such taxes were not adequate in all material respects for the
satisfaction of federal, state and local taxes for the period from December 31,
2001, to and including the Effective Date or that EIS would not continue to
qualify as a RIC for federal income tax purposes.
8.3. ABSENCE OF LITIGATION. There shall be no material litigation
pending with respect to the matters contemplated by this Agreement.
8.4. LEGAL OPINIONS.
(a) CRF shall have received an opinion of ____________, as
counsel to EIS, in form and substance reasonably satisfactory to CRF and dated
the Effective Date, to the effect that (i) EIS is a corporation duly organized,
validly existing under the laws of the State of Maryland and in good standing
with the Department; (ii) the Agreement has been duly authorized, executed and
delivered by EIS, and, assuming that the N-14 Registration Statement complies
with the 1933 Act, 1934 Act and the 1940 Act, constitutes a valid and legally
binding obligation of EIS, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws pertaining to the enforcement of creditors' rights generally and by
equitable principles; (iii) to the best of such counsel's knowledge, no consent,
approval, authorization or order of any United States federal or Maryland state
court or governmental authority is required for the consummation by EIS of the
Merger, except such as may be required under the 1933 Act, the 1934 Act, the
1940 Act and the published rules and regulations of the SEC thereunder and under
Maryland law and such as may be required under state securities or blue sky
laws; (iv) the N-14 Registration Statement has become effective under the 1933
Act, no stop order suspending the effectiveness of the N-14 Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the 1933 Act, and, with respect
to EIS, the N-14 Registration Statement, and each amendment or supplement
thereto, as of their respective effective dates, appear on their 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 published rules and regulations
-16-
of the SEC thereunder; (v) such counsel does not know of any statutes, legal or
governmental proceedings or contracts with respect to EIS or other documents
related to the Merger of a character required to be described in the N-14
Registration Statement which are not described therein or, if required to be
filed, filed as required; (vi) the execution and delivery of this Agreement does
not, and the consummation of the Merger will not, violate any material provision
of the Articles of Incorporation, as amended, the by-laws, as amended, or any
agreement (known to such counsel) to which EIS is a party or by which EIS is
bound, except insofar as the parties have agreed to amend such provision as a
condition precedent to the Merger; (vii) to the best of such counsel's
knowledge, no material suit, action or legal or administrative proceeding is
pending or threatened against EIS; and (viii) all corporate actions required to
be taken by EIS to authorize this Agreement and to effect the Merger have been
duly authorized by all necessary corporate actions on behalf of EIS. Such
opinion shall also state that (A) while such counsel cannot make any
representation as to the accuracy or completeness of statements of fact in the
N-14 Registration Statement or any amendment or supplement thereto with respect
to EIS, nothing has come to their attention that would lead them to believe
that, on the respective effective dates of the N-14 Registration Statement and
any amendment or supplement thereto, (1) the N-14 Registration Statement or any
amendment or supplement thereto contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading with respect to EIS; and
(2) the prospectus included in the N-14 Registration Statement contained any
untrue statement of a material fact or omitted to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading with respect to EIS; provided that
such counsel need not express any opinion or belief as to the financial
statements, other financial data, statistical data or information relating to
EIS contained or incorporated by reference in the N-14 Registration Statement.
In giving the opinion set forth above, __________________ may state that it is
relying on certificates of officers of EIS with regard to matters of fact and
certain certificates and written statements of governmental officials with
respect to the good standing of EIS and on the opinion of _________________ as
to matters of Maryland law.
(b) CRF shall have received an opinion from Spitzer & Feldman
P.C. and dated the Effective Date, to the effect that for federal income tax
purposes (i) the Merger as provided in this Agreement will constitute a
reorganization within the meaning of Section 368(a)(1)(A) of the Code and that
EIS and CRF will each be deemed a "party" to a reorganization within the meaning
of Section 368(b) of the Code; (ii) no gain or loss will be recognized to CRF as
a result of the Merger or on the conversion of CRF shares to EIS common stock;
(iii) no gain or loss will be recognized to EIS as a result of the Merger; (iv)
no gain or loss will be recognized to the shareholders of CRF on the conversion
of their shares into EIS common stock; (v) gain or loss may be recognized by the
Ineligible Shareholders of CRF as a result of their receipt of cash; (vi) the
tax basis of CRF assets in the hands of EIS will be the same as the tax basis of
such assets in the hands of CRF prior to the consummation of the Merger; (vii)
immediately after the Merger, the tax basis of EIS common stock received by the
shareholders of CRF in the Merger will be equal, in the aggregate, to the tax
basis of the shares of CRF converted pursuant to the Merger; (viii) a
shareholder's holding period for EIS common stock will be determined by
including the period for which he or she held the common stock of CRF converted
pursuant to the Merger, provided, that such CRF shares were held as a capital
asset; and (ix) EIS's holding period with respect to CRF assets transferred will
include the period for which such assets were held by CRF.
-17-
8.5. AUDITOR'S CONSENT AND CERTIFICATION. CRF shall have
received from Tait, Weller & Baker a letter dated as of the effective date of
the N-14 Registration Statement and a similar letter dated within five days
prior to the Effective Date, in form and substance satisfactory to CRF, to the
effect that (i) they are independent public auditors with respect to EIS within
the meaning of the 1933 Act and the applicable published rules and regulations
thereunder; and (ii) in their opinion, the financial statements and
supplementary information of EIS 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
published rules and regulations thereunder.
8.6. EFFECTIVENESS OF N-14 REGISTRATION STATEMENT. The N-14
Registration Statement shall have become effective under the 1933 Act and no
stop order suspending such effectiveness shall have been instituted or, to the
knowledge of CRF, contemplated by the SEC.
8.7. REGULATORY FILINGS.
(a) This Section has been intentionally left blank.
(b) The SEC shall not have issued an unfavorable advisory
report under Section 25(b) of the 1940 Act, nor instituted or threatened to
institute any proceeding seeking to enjoin consummation of the Merger under
Section 25(c) of the 1940 Act; no other legal, administrative or other
proceeding shall be instituted or threatened which would materially affect the
financial condition of CRF or would prohibit the Merger.
(c) EIS shall have received from any relevant state securities
administrator such order or orders as are reasonably necessary or desirable
under the 1933 Act, the 1934 Act, the 1940 Act, and any applicable state
securities or blue sky laws in connection with the transactions contemplated
hereby, and that all such orders shall be in full force and effect.
-18-
8.8. SATISFACTION OF CRF. All proceedings taken by EIS and its
counsel in connection with the Merger and all documents incidental thereto shall
be satisfactory in form and substance to CRF.
8.9. DIVIDENDS.Prior to the Effective Date, EIS shall have
declared and paid a dividend or dividends which, together with all such previous
dividends, shall have the effect of distributing to its shareholders
substantially all of its net investment company taxable income that has accrued
through the Effective Date, if any (computed without regard to any deduction of
dividends paid), and substantially all of its net capital gain, if any, realized
through the Effective Date.
9. PAYMENT OF EXPENSES
9.1. ALLOCATION. All expenses incurred in connection with the
Merger shall be allocated equally between EIS and CRF in the event the Merger is
consummated. Such expenses shall include, but not be limited to, all costs
related to the preparation and distribution of the N-14 Registration Statement,
proxy solicitation expenses, SEC registration fees, and NYSE listing fees.
Neither of the Parties owes any broker's or finder's fees in connection with the
transactions provided for herein.
10. COOPERATION FOLLOWING EFFECTIVE DATE
In case at any time after the Effective Date any further action is
necessary to carry out the purposes of this Agreement, each of the Parties will
take such further action (including the execution and delivery of such further
instruments and documents) as any other Party may reasonably request, all at the
sole cost and expense of the requesting Party (unless the requesting Party is
entitled to indemnification as described below). CRF acknowledges and agrees
that from and after the Effective Date, EIS shall be entitled to possession of
all documents, books, records, agreements and financial data of any sort
pertaining to CRF.
11. INDEMNIFICATION
11.1. CRF. EIS agrees to indemnify and hold harmless CRF and each
of CRF's directors and officers from and against any and all losses, claims,
damages, liabilities or expenses (including, without limitation, the payment of
reasonable legal fees and reasonable costs of investigation) to which jointly
and severally, CRF or any of its directors or officers may become subject,
insofar as any such loss, claim, damage, liability or expense (or actions with
respect thereto) arises out of or is based on any breach by EIS of any of its
representations, warranties, covenants or agreements set forth in this
Agreement.
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11.2. EIS. CRF agrees to indemnify and hold harmless EIS and each
of EIS's directors and officers from and against any and all losses, claims,
liabilities or expenses (including, without limitation, the payment of
reasonable legal fees and reasonable costs of investigation) to which jointly
and severally, EIS or any of its directors or officers may become subject,
insofar as any such loss, claim, damage, liability or expense (or actions with
respect thereto) arises out of or is based on any breach by CRF of any of its
representations, warranties, covenants or agreements set forth in this
Agreement.
12. TERMINATION, POSTPONEMENT AND WAIVERS
12.1. TERMINATION.
(a) Notwithstanding anything to the contrary in this Agreement,
this Agreement may be terminated and the Merger abandoned at any time (whether
before or after adoption by the shareholders of each of the Parties) prior to
the Effective Date, or the Effective Date may be postponed by: (i) mutual
agreement of the Parties' Board of Directors; (ii) the Board of Directors of EIS
if any of the obligations of CRF set forth in this Agreement has not been
fulfilled or waived by such Board or if CRF has made a material and intentional
misrepresentation herein or in connection herewith; or (iii) the Board of
Directors of CRF if any of the obligations of EIS set forth in this Agreement
has not been fulfilled or waived by such Board or if EIS has made a material and
intentional misrepresentation herein or in connection herewith.
(b) If the transaction contemplated by this Agreement shall not
have been consummated by December 31, 2002, this Agreement automatically shall
terminate on that date, unless a later date is mutually agreed to by the Boards
of Directors of the Parties.
(c) In the event of termination of this Agreement pursuant to
the provisions hereof, the Agreement shall become void and have no further
effect, and there shall not be any liability hereunder on the part of either of
the parties or their respective directors or officers, except for any such
material breach or intentional misrepresentation, as to each of which all
remedies at law or in equity of the party adversely affected shall survive.
12.2. WAIVER. At any time prior to the Effective Date, any of the
terms or conditions of this Agreement may be waived by the Board of Directors of
either CRF or EIS (whichever is entitled to the benefit thereof), if, in the
judgment of such Board after consultation with its counsel, such action or
waiver will not have a material adverse effect on the benefits intended in this
Agreement to the shareholders of their respective fund, on behalf of which such
action is taken.
12.3. EXPIRATION OF REPRESENTATIONS AND WARRANTIES.
(a) The respective representations and warranties contained in
Articles 3 and 4 of this Agreement shall expire with, and be terminated by, the
consummation of the Merger, and neither of the Parties nor any of their
officers, directors, agents or shareholders shall have any liability with
respect to such representations or warranties after the Effective Date. This
provision shall not protect any officer, director, agent or shareholder of the
Parties against any liability to the entity for which that officer, director,
agent or shareholder so acts or to its shareholders to which that officer,
director, agent or shareholder would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence, or reckless disregard of the duties in
the conduct of such office.
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(b) If any order or orders of the SEC with respect to this
Agreement shall be issued prior to the Effective Date and shall impose any terms
or conditions which are determined by action of the Boards of Directors of the
parties to be acceptable, such terms and conditions shall be binding as if a
part of this Agreement without further vote or approval of the shareholders of
the parties, unless such terms and conditions shall result in a change in the
method of computing the number of shares of EIS Common Stock to be issued
pursuant to this Agreement, in which event, unless such terms and conditions
shall have been included in the proxy solicitation materials furnished to the
shareholders of the parties prior to the meetings at which the Merger shall have
been approved, this Agreement shall not be consummated and shall terminate
unless the parties call special meetings of shareholders at which such
conditions so imposed shall be submitted for approval.
13. MISCELLANEOUS
13.1. TRANSFER RESTRICTION. Pursuant to Rule 145 under the 1933
Act, and in connection with the issuance of any shares to any person who at the
time of the Merger is, to its knowledge, an affiliate of a party to the Merger
pursuant to Rule 145(c), EIS will cause to be affixed upon the certificate(s)
issued to such person (if any) a legend as follows:
THESE SHARES ARE SUBJECT TO RESTRICTIONS ON TRANSFER UNDER THE
SECURITIES ACT OF 1933 AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED
EXCEPT TO PROGRESSIVE RETURN FUND, INC. (OR ITS STATUTORY SUCCESSOR)
UNLESS (I) A REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE
UNDER THE SECURITIES ACT OF 1933 OR (II) IN THE OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE FUND, SUCH REGISTRATION IS NOT
REQUIRED.
and, further, that stop transfer instructions will be issued to EIS's transfer
agent with respect to such shares. CRF will provide EIS on the Effective Date
with the name of any CRF Shareholder who is to the knowledge of CRF an affiliate
of it on such date.
13.2. MATERIAL PROVISIONS. All covenants, agreements,
representations and warranties made under this Agreement and any certificates
delivered pursuant to this Agreement shall be deemed to have been material and
relied upon by each of the parties, notwithstanding any investigation made by
them or on their behalf.
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13.3. NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to CRF:
Ralph Bradshaw, President
C/o Bear Stearns Funds Management Inc.
Cornerstone Strategic Value Fund, Inc.
383 Madison Avenue
New York, New York 10179
With copies to:
Thomas R. Westle, Esq.
Spitzer & Feldman P.C.
405 Park Avenue, 6th Floor
New York, New York 10022
If to EIS:
Ralph Bradshaw, President
C/o Bear Stearns Funds Management Inc.
Progressive Return Fund, Inc.
383 Madison Avenue
New York, New York 10179
With copies to:
Thomas R. Westle, Esq.
Spitzer & Feldman P.C.
405 Park Avenue, 6th Floor
New York, New York 10022
Any Party may send any notice, request, demand, claim or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the intended
recipient. Any Party may change the address to which notices, requests, demands,
claims and other communications hereunder are to be delivered by giving the
other Parties notice in the manner herein set forth.
13.4. AMENDMENTS. This Agreement may be amended, modified or
supplemented in such manner as may be mutually agreed upon in writing by the
authorized officers of CRF and EIS; provided, however, that following the
meeting of CRF and EIS shareholders to approve the Merger, no such amendment may
have the effect of changing the provisions for determining the number of EIS
shares to be issued to CRF shareholders under this Agreement to the detriment of
such shareholders without their further approval.
13.5. HEADINGS. The Article headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
13.6. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
13.7. ENFORCEABILITY. Any term or provision of this Agreement
that is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.
13.8. SUCCESSORS AND ASSIGNS. 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 the shareholders of the Parties and their respective successors and
assigns, any rights or remedies under or by reason of this Agreement.
13.9. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with the laws of the State of Maryland,
without regard to its principles of conflicts of law.
IN WITNESS WHEREOF, each of the Parties hereto has caused this
Agreement to be executed by its President or Vice President.
EIS FUND, INC.
By:________________________________
Name: Ralph Bradshaw
Title: President
THE CORNERSTONE STRATEGIC RETURN FUND, INC.
By:________________________________
Name: Ralph Bradshaw
Title: President
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EXHIBIT B1
FORM OF PROXY CARD
EIS FUND, INC.
The undersigned stockholder of EIS Fund, Inc. (the "Fund") hereby
constitutes and appoints Messrs. Ralph W. Bradshaw, Thomas R. Westle and Frank
J. Maresca, or any of them, the action of a majority of them voting to be
controlling, as proxy of the undersigned, with full power of substitution, to
vote all shares of common stock of the Fund standing in his or her name on the
books of the Fund at the Special Meeting of Stockholders of the Fund to be held
on _______, October __, 2002 at ____ a.m., New York time, at the offices of Bear
Stearns Funds Management Inc., 383 Madison Avenue, 23rd Floor, Conference Room
__, New York, New York 10179, or at any adjournment thereof, with all the powers
which the undersigned would possess if personally present, as designated on the
reverse hereof.
The undersigned hereby revokes any proxy previously given and
instructs the said proxies to vote in accordance with the aforementioned
instructions with respect to (a) the approval of the plan of merger; (b) the
amendment to the Articles of Incorporation; and (c) the consideration and vote
of such other matters as may properly come before the Special Meeting of
Stockholders or any adjournment thereof. If no such specification is made, the
undersigned will vote FOR each of the proposals set forth above, and in their
discretion with respect to such other matters as may properly come before the
Special Meeting of Stockholders.
--------------------------------------------------------------------------------
THIS PROXY IS SOLICITED ON BEHALF OF EIS FUND, INC.'S BOARD OF DIRECTORS
FOR THE SPECIAL MEETING OF STOCKHOLDERS TO BE HELD ON
OCTOBER __, 2002
(To be dated and signed on reverse side)
-1-
Please mark boxes / / or /X/ in blue or black ink.
PLEASE MARK YOUR VOTES AS IN THIS EXAMPLE:
---------
A.
X
---------
--------------------------------------------------------------------------------
1. To approve the Merger Agreement and Plan of Reorganization:
FOR WITHHELD
[ ] [ ]
2. In the event that Proposal 1 is approved, then to amend the
Certificate of Incorporation to change the name of the Fund from "EIS
Fund, Inc." to "Cornerstone Total Return Fund, Inc.":
FOR AGAINST ABSTAIN
[ ] [ ] [ ]
In their discretion, the proxies are authorized to consider and vote upon
such matters as may properly come before said Meeting or any adjournment
thereof.
-2-
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED IN THE MANNER DIRECTED HEREIN
BY THE STOCKHOLDER. IF NO SPECIFICATION IS MADE, THIS PROXY WILL BE VOTED IN
FAVOR OF EACH PROPOSAL.
Your proxy is important to assure a quorum at the Special Meeting of
Stockholders whether or not you plan to attend the meeting in person. You may
revoke this proxy at anytime, and the giving of it will not effect your right to
attend the Special Meeting of Stockholders and vote in person.
PLEASE MARK, SIGN, DATE AND RETURN THE PROXY CARD PROMPTLY USING THE ENCLOSED
ENVELOPE.
SIGNATURE(S)____________________________ DATE___________________
NOTE: Please sign exactly as name appears. When shares are held as joint
tenants, both should sign. When signing as attorney, executor, administrator,
trustee or guardian, please give full title as such. If a corporation, please
sign in full corporate name by president or other authorized officer and if a
partnership, please sign in full partnership name by authorized person.
-3-
EXHIBIT B2
FORM OF PROXY CARD
THE CORNERSTONE STRATEGIC RETURN FUND, INC.
The undersigned stockholder of The Cornerstone Strategic Return Fund,
Inc. (the "Fund") hereby constitutes and appoints Messrs. Ralph W. Bradshaw,
Thomas R. Westle and Frank J. Maresca, or any of them, the action of a majority
of them voting to be controlling, as proxy of the undersigned, with full power
of substitution, to vote all shares of common stock of the Fund standing in his
or her name on the books of the Fund at the Special Meeting of Stockholders of
the Fund to be held on _______, October __, 2002 at ____ a.m., New York time, at
the offices of Bear Stearns Funds Management Inc., 383 Madison Avenue, 23rd
Floor, Conference Room __, New York, New York 10179, or at any adjournment
thereof, with all the powers which the undersigned would possess if personally
present, as designated on the reverse hereof.
The undersigned hereby revokes any proxy previously given and
instructs the said proxies to vote in accordance with the aforementioned
instructions with respect to (a) the approval of the plan of merger; and (b) the
consideration and vote of such other matters as may properly come before the
Special Meeting of Stockholders or any adjournment thereof. If no such
specification is made, the undersigned will vote FOR each of the proposals set
forth above, and in their discretion with respect to such other matters as may
properly come before the Special Meeting of Stockholders.
--------------------------------------------------------------------------------
THIS PROXY IS SOLICITED ON BEHALF
OF THE CORNERSTONE STRATEGIC RETURN FUND, INC.'S BOARD OF DIRECTORS
FOR THE SPECIAL MEETING OF STOCKHOLDERS TO BE HELD ON
OCTOBER __, 2002
(To be dated and signed on reverse side)
-1-
Please mark boxes / / or /X/ in blue or black ink.
PLEASE MARK YOUR VOTES AS IN THIS EXAMPLE:
---------
B.
X
---------
--------------------------------------------------------------------------------
1. To approve the Merger Agreement and Plan of Reorganization:
FOR WITHHELD
[ ] [ ]
In their discretion, the proxies are authorized to consider and vote upon such
matters as may properly come before said Meeting or any adjournment thereof.
-2-
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED IN THE MANNER DIRECTED HEREIN
BY THE STOCKHOLDER. IF NO SPECIFICATION IS MADE, THIS PROXY WILL BE VOTED IN
FAVOR OF EACH PROPOSAL.
Your proxy is important to assure a quorum at the Special Meeting of
Stockholders whether or not you plan to attend the meeting in person. You may
revoke this proxy at anytime, and the giving of it will not effect your right to
attend the Special Meeting of Stockholders and vote in person.
PLEASE MARK, SIGN, DATE AND RETURN THE PROXY CARD PROMPTLY USING THE ENCLOSED
ENVELOPE.
SIGNATURE(S)____________________________ DATE___________________
NOTE: Please sign exactly as name appears. When shares are held as joint
tenants, both should sign. When signing as attorney, executor, administrator,
trustee or guardian, please give full title as such. If a corporation, please
sign in full corporate name by president or other authorized officer and if a
partnership, please sign in full partnership name by authorized person.
-3-
EXHIBIT C
CERTIFICATE OF AMENDMENT OF THE
CERTIFICATE OF INCORPORATION
OF
EIS FUND, INC.
(Under Section 805 of the Business Corporation Law)
---------------------------------------
To the Department of State
State of New York
The undersigned hereby certifies:
FIRST: The name of the corporation is EIS Fund, Inc.
SECOND: The Certificate of Incorporation was filed with the Department of State
of the State of New York on March 14, 1973.
THIRD: The Certificate of Incorporation is amended by deleting Article First and
substituting the following therefor:
"FIRST: The name of the corporation (hereinafter called the
"Company") is "Cornerstone Total Return Fund, Inc."
FOURTH: The foregoing amendment was approved by the vote of a majority of the
outstanding shares entitled to vote thereon.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment
to the Certificate of Incorporation on behalf of the Company this ____ day of
______, 2002.
EIS FUND, INC.
By:
-------------------------------------
Name: Ralph Bradshaw
Title: President
EIS FUND, INC.
383 Madison Avenue
New York, New York 10179
PART B
STATEMENT OF ADDITIONAL INFORMATION
This Statement of Additional Information ("SAI"), relates specifically to the
shares of EIS Fund, Inc. ("EIS") to be issued pursuant to an Agreement and Plan
of Merger, dated October __, 2002, between EIS and The Cornerstone Strategic
Return Fund, Inc. ("CRF"). This SAI does not constitute a prospectus. This SAI
does not contain all the information that a stockholder should consider before
voting on the proposal contained in the Proxy Statement/Prospectus that relates
to their Fund, and, therefore, should be read in conjunction with the related
Proxy Statement/Prospectus, dated September __, 2002. A copy of the Proxy
Statement/Prospectus may be obtained without charge by calling (212) 272-2093.
Please retain this document for future reference.
THIS STATEMENT OF ADDITIONAL INFORMATION IS DATED SEPTEMBER __, 2002
The SEC has not approved or disapproved these securities or determined if this
Proxy Statement/Prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
TABLE OF CONTENTS
DESCRIPTION OF THE FUND............................................... 1
INVESTMENT POLICIES, RISKS AND RESTRICTIONS........................... 1
MANAGEMENT............................................................ 7
CONTROL PERSONS AND PRINCIPAL STOCKHOLDERS............................12
INVESTMENT MANAGEMENT AND OTHER SERVICES..............................12
PORTFOLIO TRANSACTIONS................................................14
TAX STATUS............................................................16
FINANCIAL STATEMENTS..................................................19
THE INFORMATION IN THIS SAI IS NOT COMPLETE AND MAY BE CHANGED. EIS MAY NOT SELL
THESE SECURITIES UNTIL THE PROXY STATEMENT/PROSPECTUS FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION IS DECLARED EFFECTIVE. THIS SAI IS NOT AN OFFER TO SELL
THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY
STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
INTRODUCTION
This SAI is intended to supplement the information provided in the
Proxy Statement/Prospectus dated September __, 2002 (the "Proxy
Statement/Prospectus"). The Proxy Statement/Prospectus has been sent to the
stockholders of CRF and EIS in connection with the solicitation of proxies by
the Board of Directors of each Fund to be voted at the CRF Special Meeting of
Stockholders and the EIS Special Meeting of Stockholders both to be held on
October __, 2002. This SAI incorporates by reference the Prospectus of CRF dated
as of January 29, 1996, the Fund's Annual Report to Stockholders for the fiscal
year ended December 31, 2001 and Semi-Annual Report to Stockholders for the
period ended June 30, 2002.
DESCRIPTION OF THE FUND
EIS was organized as a New York corporation in 1973 under the name
"Excelsior Income Shares, Inc." At the Special Meeting of Stockholders held on
December 27, 2001, the name of the Fund was changed to EIS Fund, Inc. EIS is a
closed-end, diversified management investment company registered under the
Investment Company Act of 1940, as amended (the "Investment Company Act") whose
shares are listed on the New York Stock Exchange. EIS's investment objective is
to seek total return consisting of capital appreciation and current income by
investing primarily in U.S. and non U.S. companies. EIS's shares of common stock
are listed on the NYSE under the symbol "EIS." Reports, proxy materials and
other information concerning each Fund may be inspected at the offices of the
NYSE, 20 Broad Street, New York, New York 10005.
The authorized capitalization of EIS consists of 15,000,000 shares of
common stock having $0.01 par value per share (the "Shares"). Shares of the Fund
have equal voting rights and liquidation rights. When matters are submitted to
stockholders for a vote, each stockholder is entitled to one vote for each full
Share owned and fractional votes for fractional Shares owned. The Fund holds its
annual meeting of stockholders within 120 days after the end of its fiscal year
which ends on December 31.
Each Share of EIS represents an equal proportionate interest in the
assets and liabilities belonging to EIS with each other share of EIS and is
entitled to such dividends and distributions out of the income belonging to EIS
as are declared by the Board of Directors (the "Directors"). The Shares do not
have cumulative voting rights or any preemptive or conversion rights. In the
event of the dissolution or liquidation of the Fund, the holders of shares of
the Fund are entitled to share pro rata in the net assets of the Fund available
for distribution to shareholders.
-1-
INVESTMENT POLICIES, RISKS AND RESTRICTIONS
The Proxy Statement/Prospectus presents the investment objective and
the principal investment strategies and risks of the Fund. The investment
objective of the Fund is to seek total return consisting of capital appreciation
and current income by investing primarily in U.S. and non-U.S. companies. There
can be no assurance that the Fund will achieve its investment objective. This
section supplements the disclosure in the Fund's Proxy Statement/Prospectus and
provides additional information on the Fund's investment policies and
restrictions.
INVESTMENT OBJECTIVES OF THE FUND
The investment objective of the Fund is to seek total return
consisting of capital appreciation and current income by investing primarily in
U.S. and non-U.S. companies. The Fund's investment objectives are fundamental
and may only be changed with shareholder approval. The policies, however, are
not fundamental, and may be changed by the Fund's Board of Directors.
PRINCIPAL INVESTMENT STRATEGIES AND FUNDAMENTAL INVESTMENT RESTRICTIONS OF THE
FUND
The Fund seeks to achieve its investment objectives by investing
primarily in equity securities of U.S. companies and U.S. dollar denominated
debt securities which Fund management believes have demonstrated fundamental
investment value and favorable growth and income prospects. In general, the Fund
will invest in such equity securities that are traded in the United States on a
securities exchange or over the counter or by ADRs, IDRs or other forms of
depositary receipts. Depositary receipts are traded like common stocks in the
United States, are typically issued in connection with a U.S. or foreign banks
or trust companies and evidence ownership of underlying securities issued by a
foreign corporation.
The Fund intends its investment portfolio, under normal market
conditions, to consist principally of the equity securities of large, mid and
small-capitalization companies. Equity securities in which the Fund may invest
include common and preferred stocks, convertible securities, warrants and other
securities having the characteristics of common stocks, such as ADRs and IDRs.
The Fund may, however, invest a portion of its assets in U.S. dollar denominated
debt securities when Fund management believes that it is appropriate to do so in
order to achieve the Fund's secondary investment objective, for example, when
interest rates are high in comparison to anticipated returns on equity
investments. Debt securities in which the Fund may invest include U.S. dollar
denominated bank, corporate or government bonds, notes, and debentures of any
maturity determined by Fund management to be suitable for investment by the
Fund. The Fund may invest in the securities of issuers that it determines to be
suitable for investment by the Fund regardless of their rating, provided,
however, that the Fund may not invest in debt securities that are determined by
Fund management to be rated below "BBB" by S&P or Moody's.
-2-
Fund management utilizes a balanced approach, including "value" and
"growth" investing by seeking out companies at reasonable prices, without regard
to sector or industry, that demonstrate favorable long-term growth
characteristics. Valuation and growth characteristics may be considered for
purposes of selecting potential investment securities. In general in the
securities industry, valuation analysis is used to determine the inherent value
of the company by analyzing financial information such as a company's price to
book, price to sales, return on equity, and return on assets ratios, and growth
analysis is used to determine a company's potential for long-term dividends and
earnings growth due to market-oriented factors such as growing market share, the
launch of new products or services, the strength of its management and market
demand.
The Fund may also invest up to 10% of its assets in the aggregate in
the securities of other investment companies and up to 5% of its assets in any
one such investment company, provided that such investment does not represent
more than 3% of the voting stock of the acquired investment company of which
such shares are purchased. As a shareholder in any investment company, the Fund
will bear its ratable share of the investment company's expenses and would
remain subject to payment of the Fund's advisory and administrative fees with
respect to the assets so invested.
The Fund may invest up to 20% of the value of its total assets in
illiquid U.S. securities. The Fund will invest only in such illiquid securities
that, in the opinion of Fund management, present opportunities for substantial
growth over a period of two to five years.
PORTFOLIO TURNOVER. The Fund does not expect to trade in securities
for short-term gains. Higher portfolio turnover rates resulting from more
actively traded portfolio securities generally result in higher transaction
costs, including brokerage commissions and related capital gains or losses.
Since the Fund's investment policies emphasize long-term investment in the
securities of companies, the Fund's annual portfolio turnover rate is expected
to be relatively low, generally ranging between 25% and 75%.
PRINCIPAL RISKS OF INVESTING IN THE FUND
STOCK MARKET VOLATILITY. Stock markets can be volatile. In other
words, the prices of stocks can rise or fall rapidly in response to developments
affecting a specific company or industry, or to changing economic, political or
market conditions. The Fund is subject to the general risk that the value of the
Fund's investments may decline if the stock markets perform poorly. There is
also a risk that the Fund's investments will underperform either the securities
markets generally or particular segments of the securities markets.
ISSUER SPECIFIC CHANGES. Changes in the financial condition of an
issuer, changes in the specific economic or political conditions that affect a
particular type of security or issuer, and changes in general economic or
political conditions can affect the credit quality or value of an issuer's
securities. Lower-quality debt securities tend to be more sensitive to these
changes than higher-quality debt securities.
-3-
INTEREST RATE RISK. Debt securities have varying levels of
sensitivity to changes in interest rates. In general, the price of a debt
security can fall when interest rates rise and can rise when interest rates
fall. Securities with longer maturities and mortgage securities can be more
sensitive to interest rate changes although they usually offer higher yields to
compensate investors for the greater risks. The longer the maturity of the
security, the greater the impact a change in interest rates could have on the
security's price. In addition, short-term and long-term interest rates do not
necessarily move in the same amount or the same direction. Short-term securities
tend to react to changes in short-term interest rates and long-term securities
tend to react to changes in long-term interest rates.
EXTENSION RISK. The Fund is subject to the risk that an issuer will
exercise its right to pay principal on an obligation held by the Fund (such as
mortgage-backed securities) later than expected. This may happen when there is a
rise in interest rates. These events may lengthen the duration (i.e. interest
rate sensitivity) and potentially reduce the value of these securities.
ILLIQUID SECURITIES. The Fund may invest up to 20% of its respective
total assets in illiquid securities. Illiquid securities may offer a higher
yield than securities which are more readily marketable, but they may not always
be marketable on advantageous terms. The sale of illiquid securities often
requires more time and results in higher brokerage charges or dealer discounts
than does the sale of securities eligible for trading on national securities
exchanges or in the over-the-counter markets. A security traded in the U.S. that
is not registered under the Securities Act of 1933 will not be considered
illiquid if Fund management determines that an adequate investment trading
market exists for that security. However, there can be no assurance that a
liquid market will exist for any security at a particular time.
INVESTMENT IN SMALL AND MID-CAPITALIZATION COMPANIES. The Fund may
invest in companies with mid- or small-sized capital structures (generally a
market capitalization of $5 billion or less). Accordingly, the Fund may be
subject to the additional risks associated with investment in these companies.
The market prices of the securities of such companies tend to be more volatile
than those of larger companies. Further, these securities tend to trade at a
lower volume than those of larger more established companies. If the Fund is
heavily invested in these securities and the value of these securities suddenly
declines, the Fund will be susceptible to significant losses.
OVER-THE-COUNTER BULLETIN BOARD MARKETS. The Fund may invest in
companies whose stock is trading on the over-the-counter Bulletin Board which
have only a limited trading market. A more active trading market may never
develop. The Fund may be unable to sell its investments in these companies on
any particular day due to the limited trading market.
NON-PRINCIPAL INVESTMENT POLICIES
TEMPORARY DEFENSIVE POSITIONS. The Fund may, from time to time, take
temporary defensive positions that are inconsistent with its principal
investment strategies in attempting to respond to adverse market, economic,
political or other conditions. Such investments include various short-term
instruments. If the Fund takes a temporary defensive position at the wrong time,
the position would have an adverse impact on the Fund's performance and it may
not achieve its investment objective. The Fund reserves the right to invest all
of its assets in temporary defensive positions.
-4-
SECURITIES LENDING. The Fund may lend its portfolio securities to
broker-dealers in amounts equal to no more than 30% of the Fund's net assets.
These transactions will be fully collateralized at all times with cash and/or
high quality, short-term debt obligations. These transactions involve risk to
the Fund if the other party should default on its obligation and the Fund is
delayed or prevented from recovering the securities lent. In the event the
original borrower defaults on its obligation to return lent securities, the Fund
will seek to sell the collateral, which could involve costs or delays. To the
extent proceeds from the sale of collateral are less than the repurchase price,
the Fund would suffer a loss and you could lose money on your investment.
BORROWING. The Fund shall not borrow money except (i) to purchase
securities, provided that the aggregate amount of such borrowings may not exceed
20% of its total assets, taken at market value at the time of borrowing, and
(ii) from banks for temporary or emergency purposes in an amount not exceeding
5% of the Fund's total assets, taken at market value at time of borrowing. To
reduce its indebtedness, the Fund may have to sell a portion of its investments
at a time when it may be disadvantageous to do so. In addition, interest paid by
the Fund on borrowed funds would decrease the net earnings of the Fund
REPURCHASE AGREEMENTS. The Fund may enter into repurchase agreements
collateralized by the securities in which it may invest. A repurchase agreement
involves the purchase by the Fund of securities with the condition that the
original seller (a bank or broker-dealer) will buy back the same securities
("collateral") at a predetermined price or yield. Repurchase agreements involve
certain risks not associated with direct investments in securities. In the event
the original seller defaults on its obligation to repurchase, the Fund will seek
to sell the collateral, which could involve costs or delays. To the extent
proceeds from the sale of collateral are less than the repurchase price, the
Fund would suffer a loss.
INVESTMENT RESTRICTIONS
The following investment restrictions are deemed fundamental policies
and may be changed only by the vote of a majority of the Fund's outstanding
voting securities, which as used in this Prospectus means the lesser of (i) 67%
of the Fund's outstanding shares of Common Stock present at a meeting of the
holders if more than 50% of the outstanding shares of Common Stock are present
in person or by proxy or (ii) more than 50% of the Fund's outstanding shares of
Common Stock.
The Fund will not:
(1) Issue any senior securities (as defined in the Investment Company
Act of 1940) except insofar as any borrowing permitted by item 2 below might be
considered the issuance of senior securities.
-5-
(2) Borrow money except (i) to purchase securities, provided that the
aggregate amount of such borrowings may not exceed 20% of its total assets,
taken at market value at time of borrowing, and (ii) from banks for temporary or
emergency purposes in an amount not exceeding 5% of its total assets, taken at
market value at time of borrowing.
(3) Mortgage, pledge or hypothecate its assets in an amount exceeding
30% of its total assets, taken at market value at time of incurrence.
(4) Knowingly invest more than 20% of its total assets, taken at
market value at time of investment, in securities subject to legal or
contractual restrictions on resale, including securities which may be sold
publicly only if registered under the Securities Act of 1933.
(5) Act as an underwriter, except to the extent that, in connection
with the disposition of portfolio securities, the Fund may be deemed to be an
underwriter under applicable securities laws.
(6) Purchase real estate or interests in real estate, except that the
Fund may invest in securities secured by real estate or interests therein, or
issued by companies, including real estate investment trusts, which deal in real
estate or interests therein.
(7) Make loans, except through the purchase of debt securities and
the loaning of its portfolio securities in accordance with the Fund's investment
policies.
(8) Invest in companies for the purpose of exercising control
or management.
(9) Purchase securities on margin (except that it may obtain such
short-term credits as may be necessary for the clearance of purchases or sales
of securities) or make short sales of securities (except for sales "against the
box").
(10) Purchase or retain securities of any issuer if, to the Fund's
knowledge, those officers and directors of the Fund or the Adviser individually
owning beneficially more than 1/2 of 1% of the outstanding securities of such
issuer together own beneficially more than 5% of such issuer's outstanding
securities.
(11) Invest in commodities or commodity contracts, or write or
purchase puts, calls or combinations of both.
(12) Purchase the securities of any other investment company, except
(a) in connection with a merger, consolidation, acquisition of assets or other
reorganization approved by the Fund's shareholders, and (b) in the case of
securities of closed-end investment companies only, in the open market where no
commission other than the ordinary broker's commission is paid; provided,
however, that in no event may investments in securities of other investment
companies exceed 10% of the Fund's total assets taken at market value at time of
purchase.
-6-
(13) Invest more than 25% of its total assets, taken at market value
at time of purchase, in securities of issuers in any one industry.
(14) Purchase securities issued by the Trust Company or any company
of which 50% or more of the voting securities are owned by the Trust Company or
an affiliate of the Trust Company, or any investment company (excluding the
Company) or real estate investment trust managed or advised by the Trust Company
or any such company.
(15) Invest more than 5% of its total assets, taken at market value
at time of purchase, in securities of any one issuer other than the United
States Government or its instrumentalities; or invest in the securities of
companies which (together with predecessors) have a record of less than three
years continuous operation, or purchase more than 10% of any class of the
outstanding voting securities of any one issuer.
(16) Purchase interests in oil, gas or other mineral exploration
programs; however, this limitation will not prohibit the acquisition of
securities of companies engaged in the production or transmission of oil, gas or
other minerals.
If a percentage restriction on investment or utilization of assets
set forth in items 2, 3, 4, 10, 12, 13, 14 or 15 above is adhered to at the time
an investment is made, a later change in percentage resulting from, for example,
changing values or a change in the rating of a portfolio security will not be
considered a violation. The Fund may exchange securities, exercise any
conversion rights or exercise warrants or other rights to purchase common stock
or other equity securities and may hold any such securities so acquired without
regard to the foregoing investment restrictions, but the value of the securities
so acquired shall be included in any subsequent determination of the Fund's
compliance with the 20% limitation referred to in item 2 above.
MANAGEMENT OF THE FUND
The business and affairs of the Fund are managed under the direction
of the Fund's Board of Directors, and the day-to-day operations are conducted
through or under the direction of the officers of the Fund.
The following tables set forth the names, ages and principal
occupations of each of the Directors of the Fund:
-7-
Term of Directorships held by
Office Nominee for Director outside
Name, Address and Age Position(s) Since Principal Occupation during of Fund Complex*
with Fund past 5 years
Ralph W. Bradshaw (51)** Chairman of 2001 President of Cornerstone Director of The SmallCap Fund
One West Pack Square the Board and Advisors, Inc.; President of
Suite 1650 President CRF, Cornerstone Strategic
Asheville, NC 28801 Value Fund, Inc. and
Progressive Return Fund, Inc.;
Vice President, Deep Discount
Advisors, Inc. (1993-1999).
Gary A. Bentz** (46) Vice 2001 Chief Financial Officer of
One West Pack Square President, Cornerstone Advisors, Inc.,
Suite 1650 Treasurer and Vice President and Treasurer
Asheville, NC 28801 Director of Progressive Return Fund,
Inc., Cornerstone Strategic
Value Fund, Inc. and CRF;
Chief Financial Officer of
Deep Discount Advisors, Inc.
(1993-2000).
Andrew A. Strauss (48) Director 2001 Attorney and senior member of Director of The SmallCap
77 Central Avenue Strauss & Associates, P.A., Fund, Memorial Mission
Suite F Attorneys, Asheville and Hospital Foundation and
Asheville, NC 28801 Hendersonville, N.C.; previous Deerfield Episcopal
President of White Knight Retirement Community.
Healthcare, Inc. and LMV
Leasing, Inc., a wholly owned
subsidiary of Xerox Credit
Corporation.
-8-
Glenn W. Wilcox, Sr. (70) Director 2001 Chairman of the Board and Director of Wachovia Corp.
One West Pack Square Chief Executive Officer of and The SmallCap Fund, Inc.;
Suite 1700 Wilcox Travel Agency. Board Trustee and Chairman
Asheville, NC 28801 of Appalachian State
University; and Board
Trustee and Director, Mars
Hill College; and Director,
Champion Industries, Inc.;
Chairman, Tower Associates,
Inc. (a real estate venture).
Scott B. Rogers (46) Director 2001 Chief Executive Officer, Director of A-B Vision
30 Cumberland Ave. Asheville Buncombe Community Board; Chairman and
Asheville, NC 28801 Christian Ministry; and Director, Recycling
President, ABCCM Doctor's Unlimited and
Medical Clinic; Appointee, NC Interdenominational
Governor's Commission on Ministerial Alliance; and
Welfare to Work. Director, Southeastern
Jurisdiction Urban
Networkers.
------------
* As of January 2, 2002, the Fund Complex is comprised of EIS, CRF, Cornerstone Strategic Value Fund, Inc. and Progressive
Return Fund, Inc. all of which are managed by Cornerstone Advisors.
** Mr. Bradshaw and Mr. Bentz are "interested persons" as defined in the Investment Company Act of 1940 ("Investment Company
Act") because they are both directors, officers and 50% shareholders in Cornerstone Advisors, Inc., the Fund's investment
manager.
All of the Directors listed above, except for Mr. Bentz, served on
the Board of Directors for each closed-end fund within the Fund Complex that was
managed by Cornerstone Advisors, Inc. ("Cornerstone Advisors"), the Fund's
investment manager, during the current fiscal year.
The following table sets forth, for each Director and for the
Directors as a group, the amount of shares beneficially owned EIS as of June 30,
2002. The information as to beneficial ownership is based on statements
furnished to the Fund by each Director. Unless otherwise noted, beneficial
ownership is based on sole investment power.
Name of Director Amount of Securities Beneficially
Owned
Ralph W. Bradshaw 1,001
Gary A. Bentz 1,500
Andrew A. Strauss 400
Glenn W. Wilcox Sr. 1,000
Scott B. Rogers 0
All Directors as a Group 3,901
-9-
The following table sets forth, for each Director, the aggregate
dollar range of equity securities owned of the Fund and of all Funds overseen by
each Director in the Fund Complex as of June 30, 2002. The information as to
beneficial ownership is based on statements furnished to the Fund by each
Director.
------------------------------- ---------------------------
Name Dollar Range of Equity
Securities in the Fund.
------------------------------- ---------------------------
------------------------------- ---------------------------
Ralph A. Bradshaw $10,001-$50,000
------------------------------- ---------------------------
------------------------------- ---------------------------
Gary A. Bentz $10,001-$50,000
------------------------------- ---------------------------
------------------------------- ---------------------------
Andrew A. Strauss $1-$10,000
------------------------------- ---------------------------
------------------------------- ---------------------------
Glenn W. Wilcox Sr. $10,001-$50,000
------------------------------- ---------------------------
------------------------------- ---------------------------
Scott B. Rogers 0
------------------------------- ---------------------------
EXECUTIVE OFFICERS
In addition to Messrs. Bradshaw and Bentz, the other officer of the
Fund is:
Position(s) Term of
Name, Address and Age with Fund Office Principal Occupation during Directorships held by Officer
Since past 5 years
Thomas R. Westle (48) Secretary 2001 Partner of Spitzer & Feldman
405 Park Avenue P.C., a law firm, and previous
New York, NY 10022 Partner at Battle Fowler LLP;
Secretary of Progressive
Return Fund, Inc., Cornerstone
Strategic Value Fund, Inc. and
The Cornerstone Strategic
Return Fund, Inc.
The Fund pays each of its Directors who is not a director, officer,
partner, co-partner or employee of Cornerstone Advisors or any affiliate thereof
a stipend of $6,000, a fee in the amount of $600 per Board Meeting, and a fee of
$100 per Special Telephonic Board Meeting. In addition, the Fund will reimburse
those Directors for travel and out-of-pocket expenses incurred in connection
with Board of Directors meetings.
The Fund has an Audit Committee and a Nominating Committee each of
which is comprised of all of the non-interested members of the Board of
Directors.
AUDIT COMMITTEE
The members of the Audit Committee of the Board of Directors are
Messrs. Strauss, Wilcox and Rogers. The Audit Committee oversees the Fund's
financial reporting process, reviews audit results and recommends annually to
the Fund a firm of independent certified public accountants. During the fiscal
year ended December 31, 2002, the Audit Committee held two meetings in which all
of the members of the Audit Committee attended.
-10-
NOMINATING COMMITTEE
At the Quarterly Meeting of the Board of Directors held on August 2,
2002, the Board of Directors established a Nominating Committee. The members of
the Nominating Committee of the Board of Directors are all Independent Directors
and are Messrs. Strauss, Wilcox and Rogers. The Nominating Committee is
responsible for seeking and reviewing candidates for consideration as nominees
for Trustees as is from time to time considered necessary or appropriate. The
Nominating Committee will consider nominees recommended by stockholders of the
Fund as long as the stockholders properly submit their recommendations as
required under the Fund's By-laws.
The Fund's Board of Directors, including the Directors who are not
interested persons of any party to the Cornerstone Agreement or its affiliates,
approved the Cornerstone Agreement for the Fund on November 16, 2001, with its
legal counsel in attendance.
In approving the Cornerstone Agreement and determining to submit it
to the stockholders of the Fund for their approval, the Board of Directors
considered the best interests of the stockholders and took into account factors
they deemed relevant. The factors considered by the independent Directors
included the nature, quality and scope of the operations and services to be
provided by Cornerstone Advisors, while focusing on the prior experience of
Cornerstone Advisors' principals with respect to: (i) the structure of
closed-end investment companies in general; (ii) management of portfolios of
U.S. equity securities; (iii) implementing aggressive policies to eliminate
closed-end investment companies' discounts; and (iv) implementing policies to
cut costs and expenses of closed-end investment companies. Furthermore, the
Board of Directors of the Fund considered the opportunity to obtain high quality
services at costs that it deemed appropriate and reasonable. The Board of
Directors also reflected upon the intention of Cornerstone Advisors to continue
to act as the investment manager to Progressive Return Fund, Inc., Cornerstone
Strategic Value Fund, Inc. and The Cornerstone Strategic Return Fund, Inc.
("CFR"), thereby creating a family of closed-end funds including but not
necessarily limited to EIS, PGF, CRF and CLM. Lastly, consideration was given to
the fact that there exists no arrangement or understanding in connection with
the Cornerstone Agreement with respect to the composition of the Board of
Directors of the Fund or of Cornerstone Advisors or with respect to the
selection or appointment of any person to any office of the Fund or Cornerstone
Advisors.
-11-
CODE OF ETHICS
The Fund and Cornerstone Advisers have adopted a written Code of
Ethics that are compliant with Rule 17j-1 of the Investment Company Act, which
permit personnel covered by the Code of Ethics ("Covered Persons") to invest in
securities, including securities that may be purchased or held by the Fund. The
Code of Ethics also contains provisions designed to address the conflicts of
interest that could arise from personal trading by advisory personnel. The
following are some of the requirements under the Fund's and Cornerstone
Advisers' Code of Ethics: (1) all Covered Persons must report their personal
securities transactions at the end of each quarter; (2) with certain limited
exceptions, all Covered Persons must obtain preclearance before executing any
personal securities transactions; (3) Covered Persons may not execute personal
trades in a security if there are any pending orders in that security by the
respective Fund; and (4) Covered Persons may not invest in initial public
offerings.
The Board of Directors of the Fund reviews the administration of the
Code of Ethics at least annually and may impose sanctions for violations of the
Code of Ethics. The Codes of Ethics for the Fund and Cornerstone Advisers can be
reviewed and copied either on the EDGAR database on the SEC's website at
http://www.sec.gov or at the Securities Exchange Commission's Public reference
room in Washington, D.C. Information on the operation of the Public Reference
Room may by obtained by calling the SEC at (202) 942-8090.
CONTROL PERSONS AND PRINCIPAL STOCKHOLDERS
Please refer to the Proxy Statement/Prospectus for information on this Item.
INVESTMENT MANAGEMENT AND OTHER SERVICES
INVESTMENT ADVISER.
Cornerstone Advisors, Inc. ("Cornerstone Advisors" or the "Adviser")
is the investment adviser of EIS pursuant to an investment advisory agreement.
Cornerstone Advisors, which has its principal office at One West Pack
Square, Suite 1650, Asheville, North Carolina 28801, was organized in February
of 2001, to provide investment management services to closed-end investment
companies and is registered with the SEC under the Investment Company Act. In
addition to EIS and CRF, Cornerstone Advisors is the investment adviser to two
other closed-end funds, Cornerstone Strategic Value Fund, Inc. and Progressive
Return Fund, Inc.. Mr. Ralph W. Bradshaw, a Director and President of EIS and
CRF, serves as each Fund's portfolio manager.
Mr. Bradshaw and Mr. Gary A. Bentz are the sole stockholders of
Cornerstone Advisors. Messrs. Bradshaw and Bentz have extensive experience with
closed-end investment companies. Mr. Bradshaw, also serves as a Director to The
Smallcap Fund, Inc., Cornerstone Strategic Value Fund, Inc., Progressive Return
Fund, Inc. and The Cornerstone Strategic Return Fund, and served as a Vice
President of Deep Discount Advisors, Inc. ("Deep Discount") from 1993 to 1999.
Mr. Bentz, who currently serves as a Director to EIS Fund, Inc. and is Treasurer
and Vice President of EIS and CRF, and the two other funds for which Cornerstone
Advisors serves as investment adviser, was also affiliated with Deep Discount as
its Chief Financial Officer from 1993 to 2000. Messrs. Bradshaw and Bentz no
longer possess any ownership interest in Deep Discount nor do they provide any
investment advisory services to Deep Discount or its clients. Deep Discount and
Ron Olin Investment Management Company ("ROIMC"), both of which jointly filed a
Schedule 13G with the Securities and Exchange Commission (the "SEC") on
February 12, 2002 as beneficial owners of more than five (5%) percent of the
outstanding shares of each Fund, are registered investment advisers which, on
behalf of their respective advisory clients, invest in the common stock of
closed-end investment companies. There exists no arrangements or understandings
among Cornerstone Advisors, Deep Discount, ROIMC or any of their respective
stockholders with respect to the Funds.
-12-
Cornerstone Advisors has sole investment discretion for the Fund's
assets under the supervision of the Fund's Board of Directors and in accordance
with the Fund's stated policies. Cornerstone Advisors selects investments for
the Fund and places purchase and sale orders on behalf of the Fund.
Pursuant to the Cornerstone Agreement, Cornerstone Advisors conducts
investment research and supervision for the Fund and is responsible for the
purchase and sale of investment securities for the Fund's portfolio, subject to
the supervision and direction of the Board of Directors. Cornerstone Advisors
provides the Fund with investment advice, supervises the Fund's management and
investment programs and provides investment advisory facilities and executive
and supervisory personnel for managing the investments and effectuating
portfolio transactions. Cornerstone Advisors also furnishes, at its own expense,
all necessary administrative services, office space, equipment and clerical
personnel for servicing the investments of the Fund. In addition, Cornerstone
Advisors pays the salaries and fees of all officers of the Fund who are
affiliated with Cornerstone Advisors.
The Cornerstone Agreement provides that the Fund is responsible for
all of its expenses and liabilities, except that Cornerstone Advisors is
responsible for the expenses in connection with maintaining a staff within its
organization to furnish the above services to the Fund. The Fund pays
Cornerstone Advisors monthly an annual fee of one (1.00%) percent of the Fund's
average weekly net assets for the investment management and research services
provided by Cornerstone Advisors. Additionally, Cornerstone Advisors has
voluntarily agreed to limit the Fund's annual operating expenses (excluding
interest, taxes, brokerage commissions, expenditures which are capitalized in
accordance with generally accepted accounting principles, and other
extraordinary expenses not incurred in the ordinary course of the Fund's
business) to one and twenty one-hundredths (1.20%) percent (on an annualized
basis) of the Fund's average net assets for the fiscal period from July 1, 2002
through December 31, 2002.
ADMINISTRATOR.
Bear Stearns Funds Management Inc. ("BSFM") serves as the Fund's
administrator pursuant to an administrative agreement with the Fund. BSFM is
located at 383 Madison Avenue, 23rd Floor, New York, New York 10179.
-13-
BSFM provides office facilities and personnel adequate to perform the
following services for the Fund: 1) oversight of the determination and
publication of the Fund's net asset value in accordance with the Fund's policy
as adopted from time to time by the Board of Directors; 2) maintenance of the
books and records of the Fund as required under the Investment Company Act; 3)
preparation of the Fund's U.S. federal, state and local income tax returns; 4)
preparation of financial information for the Fund's proxy statements and
semi-annual and annual reports to Stockholders; and 5) preparation of certain of
the Fund's reports to the SEC.
CUSTODIAN.
Custodial Trust Company, 101 Carnegie Center, Princeton, New Jersey,
is the custodian for the Fund's assets.
TRANSFER AGENT AND REGISTRAR.
The Fifth Third Bank acts as the transfer agent and registrar of the
Fund.
PORTFOLIO TRANSACTIONS
Decisions to buy and sell securities for the Fund are made by
Cornerstone Advisors subject to the overall review of the Fund's Board of
Directors. Portfolio securities transactions for the Fund are placed on behalf
of the Fund by persons authorized by Cornerstone Advisors. Cornerstone Advisors
manages other investment companies and accounts that invest in securities.
Although investment decisions for the Fund is made independently from those of
the other accounts, investments of the type the Fund may make may also be made
on behalf of those other accounts. When the Fund and one or more of those other
accounts is prepared to invest in, or desires to dispose of, the same security,
available investments or opportunities for each will be allocated in a manner
believed by Cornerstone Advisors to be equitable. In some cases, this procedure
may adversely affect the price paid or received by the Fund or the size of the
position obtained or disposed of by the Fund.
Transactions on U.S. and some foreign stock exchanges involve the
payment of negotiated brokerage commissions, which may vary among different
brokers. The cost of securities purchased from underwriters includes an
underwriter's commission or concession, and the prices at which securities are
purchased from and sold to dealers in the over-the-counter markets include an
undisclosed dealer's mark-up or mark-down. Fixed income securities are generally
traded on a "net" basis with dealers acting as principal for their own accounts
without a stated commission, although the price of the security will likely
include a profit to the dealer.
-14-
In selecting brokers or dealers to execute portfolio transactions on
behalf of the Fund, Cornerstone Advisors will seek the best overall terms
available. The Advisory Agreement provides that, in assessing the best overall
terms available for any transaction, Cornerstone Advisors will consider the
factors it deems relevant, including the breadth of the market in the security,
the price of the security, the financial condition and execution capability of
the broker or dealer and the reasonableness of the commission, if any, for the
specific transaction and on a continuing basis. In addition, the Advisory
Agreement authorizes Cornerstone Advisors in selecting brokers or dealers, to
execute a particular transaction and in evaluating the best overall terms
available, to consider the brokerage and research services (as those terms are
defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the
Fund and/or other accounts over which Cornerstone Advisors exercises investment
discretion. The fees payable under the Advisory Agreements are not reduced as a
result of Cornerstone Advisors receiving such brokerage and research services.
The Board of Directors of the Fund will review periodically the
commissions paid by that Fund to determine if the commissions paid over
representative periods of time were reasonable in relation to the benefits
inuring to such Fund.
DIVIDEND REINVESTMENT AND CASH PURCHASE PLAN
EIS operates a Dividend Reinvestment and Cash Purchase Plan (the
"Program"), sponsored and administered by The Fifth Third Bank (the
"Agent"), pursuant to which Fund dividends and distributions, net of any
applicable U.S. withholding tax, are reinvested in shares of the Fund.
The Fifth Third Bank, serves as the Program Administrator for the stockholders
in administering the Program.
Stockholders who have shares registered directly in their own names
automatically participate in the Fund's Program, unless and until an election is
made to withdraw from the Program on behalf of such participating stockholder.
Stockholders who do not wish to have distributions automatically reinvested
should so notify the Agent at 38 Fountain Plaza Square, Cincinnati, OH 45202.
Under the Program, the Fund's respective dividends and other distributions to
stockholders are reinvested in full and fractional shares as described below.
When the Fund declares an income dividend or a capital gain or other
distribution (each, a "Dividend" and collectively, "Dividends"), the Agent, on
the stockholders behalf, will (i) receive additional authorized shares from the
Fund either newly issued or repurchased from stockholders by the Fund and held
as treasury stock ("Newly Issued Shares") or, (ii) at the sole discretion of the
Board of Directors, be authorized to purchase outstanding shares on the open
market, on the NYSE or elsewhere, with cash allocated to it by the Fund ("Open
Market Purchases").
Shares acquired by the Agent in Open Market Purchases will be
allocated to the reinvesting stockholders based on the average cost of such Open
Market Purchases. Alternatively, the Agent will allocate Newly Issued Shares to
the reinvesting stockholders at a price equal to the average closing price of
the Fund over the five trading days preceding the payment date of such dividend.
-15-
Registered stockholders who acquire their shares through Open Market
Purchases and who do not wish to have their Dividends automatically reinvested
should so notify the Fund in writing. If a stockholder has not elected to
receive cash Dividends and the Agent does not receive notice of an election to
receive cash Dividends prior to the record date of any Dividend, the stockholder
will automatically receive such Dividends in additional shares.
Participants in the Program may withdraw from the Program by
providing written notice to the Agent at least 30 days prior to the applicable
Dividend payment date. When a Participant withdraws from the Program, or upon
termination of the Program as provided below, certificates for whole shares
credited to his/her account under the Program will, upon request, be issued.
Whether or not a participant requests that certificates for whole shares by
issued, a cash payment will be made for any fraction of a share credited to such
account.
The Agent will maintain all stockholder accounts in the Program and
furnish written confirmations of all transactions in the accounts, including
information needed by stockholders for personal and tax records. The Agent will
hold shares in the account of each Program participant in non-certified form in
the name of the participant, and each stockholder's proxy will include those
shares purchased pursuant to the Program. Each participant, nevertheless, has
the right to receive certificates for whole shares owned. The Agent will
distribute all proxy solicitation materials to participating stockholders.
In the case of stockholders, such as banks, brokers or nominees, that
hold shares for others who are beneficial owners participating in the Program,
the Agent will administer the Program on the basis of the number of shares
certified from time to time by the record stockholder as representing the total
amount of shares registered in the stockholder's name and held for the account
of beneficial owners participating in the Program.
All correspondence concerning the Program should be directed to the
Agent at 38 Fountain Square Plaza, Cincinatti, OH 45202.
TAXATION
The following is a summary of certain material United States federal
income tax considerations regarding the purchase, ownership and disposition of
shares in the Fund. Each prospective shareholder is urged to consult his or her
own tax adviser with respect to the specific federal, state, local and foreign
tax consequences of investing in the Fund. The summary is based on the laws in
effect on the date of this SAI, which are subject to change.
-16-
The Fund has qualified and elected to be treated as a regulated
investment company under the Internal Revenue Code of 1986, as amended (the
"Code"), and intends to continue to so qualify, which requires compliance with
certain requirements concerning the sources of its income, diversification of
its assets, and the amount and timing of its distributions to shareholders. Such
qualification does not involve supervision of management or investment practices
or policies by any government agency or bureau. By so qualifying, the Fund will
not be subject to federal income or excise tax on its net investment income or
net capital gain which are distributed to shareholders in accordance with the
applicable timing requirements. Net investment income and net capital gain of
the Fund will be computed in accordance with Section 852 of the Code.
The Fund intends to distribute all of its net investment income, any
excess of net short-term capital gains over net long-term capital losses, and
any excess of net long-term capital gains over net short-term capital losses in
accordance with the timing requirements imposed by the Code and therefore will
not be required to pay any federal income or excise taxes. Distributions of net
investment income and net capital gain will be made no later than December 31 of
each year. Both types of distributions will be in shares of the Fund unless a
shareholder elects to receive cash.
If the Fund fails to qualify as a regulated investment company under
Subchapter M in any fiscal year, it will be treated as a corporation for federal
income tax purposes. As such the Fund would be required to pay income taxes on
its net investment income and net realized capital gains, if any, at the rates
generally applicable to corporations. Shareholders of the a Fund would not be
liable for income tax on the Fund's net investment income or net realized
capital gains in their individual capacities. Distributions to shareholders,
whether from the Fund's net investment income or net realized capital gains,
would be treated as taxable dividends to the extent of current or accumulated
earnings and profits of the Fund.
The Fund is subject to a 4% nondeductible excise tax on certain
undistributed amounts of ordinary income and capital gain under a prescribed
formula contained in Section 4982 of the Code. The formula requires payment to
shareholders during a calendar year of distributions representing at least 98%
of the Fund's ordinary income for the calendar year and at least 98% of its
capital gain net income (i.e., the excess of its capital gains over capital
losses) realized during the one-year period ending October 31 during such year
plus 100% of any income that was neither distributed nor taxed to the Fund
during the preceding calendar year. Under ordinary circumstances, the Fund
expects to time its distributions so as to avoid liability for this tax.
Net investment income is made up of dividends and interest less
expenses. Net capital gain for a fiscal year is computed by taking into account
any capital loss carryforward of the Fund.
The following discussion of tax consequences is for the general
information of shareholders that are subject to tax. Shareholders that are IRAs
or other qualified retirement plans are exempt from income taxation under the
Code.
-17-
Distributions of taxable net investment income and the excess of net
short-term capital gain over net long-term capital loss are taxable to
shareholders as ordinary income.
Distributions of net capital gain ("capital gain dividends") are
taxable to shareholders as long-term capital gain, regardless of the length of
time the shares of the Fund have been held by such shareholders.
Distributions of taxable net investment income and net capital gain
will be taxable as described above, whether received in shares or in cash.
Shareholders electing to receive distributions in the form of additional shares
will have a cost basis for federal income tax purposes in each share so received
equal to the net asset value of a share on the reinvestment date.
All distributions of taxable net investment income and net capital
gain, whether received in shares or in cash, must be reported by each taxable
shareholder on his or her federal income tax return. Dividends or distributions
declared in October, November or December as of a record date in such a month,
if any, will be deemed to have been received by shareholders on December 31, if
paid during January of the following year. Redemptions of shares may result in
tax consequences (gain or loss) to the shareholder and are also subject to these
reporting requirements.
Under the Code, the Fund will be required to report to the Internal
Revenue Service all distributions of taxable income and capital gains, except in
the case of certain exempt shareholders. Under the backup withholding provisions
of Section 3406 of the Code, distributions of taxable net investment income and
net capital gain may be subject to withholding of federal income tax at the rate
of 30.5% in the case of non-exempt shareholders who fail to furnish the
investment company with their taxpayer identification numbers and with required
certifications regarding their status under the federal income tax law, or if
the Fund is notified by the IRS or a broker that withholding is required due to
an incorrect TIN or a previous failure to report taxable interest or dividends.
If the withholding provisions are applicable, any such distributions and
proceeds, whether taken in cash or reinvested in additional shares, will be
reduced by the amounts required to be withheld.
Shareholders of the Fund may be subject to state and local taxes on
distributions received from the Fund.
A brief explanation of the form and character of the distribution
accompany each distribution. In January of each year the Fund issues to each
shareholder a statement of the federal income tax status of all distributions.
THE FOREGOING IS ONLY A SUMMARY OF CERTAIN MATERIAL TAX CONSEQUENCES AFFECTING
THE FUNDS AND THEIR SHAREHOLDERS. SHAREHOLDERS ARE ADVISED TO CONSULT THEIR OWN
TAX ADVISERS WITH RESPECT TO THE PARTICULAR TAX CONSEQUENCES TO THEM OF AN
INVESTMENT IN EITHER FUND.
-18-
FINANCIAL STATEMENTS
(a) The Financial Statements required under this Item are incorporated by
reference herein from the
1. EIS Fund, Inc.'s Annual Report for the period ended December 31,
2000, filed with the Securities and Exchange Commission on
January 18, 2002 (File No. 811-2363).
2. EIS Fund, Inc.'s Annual Report for the period ended December 31,
2001, as filed with the Securities and Exchange Commission on
March 6, 2002 (File No. 811-2363)
3. EIS Fund, Inc.'s Semi-Annual Report for the period ended June 30,
2002, as filed with the Securities and Exchange Commission on
August __, 2002 (File No. 811-2363)
4. The Cornerstone Strategic Return Fund, Inc. Annual Report for the
period ended December 31, 2000, filed with the Securities and
Exchange Commission on March 1, 2001 (File No. 811-8398).
5. The Cornerstone Strategic Return Fund, Inc. Annual Report for the
period ended December 31, 2001, filed with the Securities and
Exchange Commission on March 5, 2002 (File No. 811-8398).
6. The Cornerstone Strategic Return Fund, Inc. Semi-Annual Report for
the period ended June 30, 2002, filed with the Securities and
Exchange Commission on August __, 2002 (File No. 811-8398).
(b) Pro Forma Financial Information
STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 2001(UNAUDITED)
EIS ACQUIRING FUND
ACQUIRING FUND CRF ADJUSTMENTS PRO FORMA
-------------- --- ----------- ---------
INVESTMENT INCOME
Income:
Interest 2,348,734 575,552 -- $ 2,924,286
Dividends -- 25,679 -- 25,679
Less: Foreign taxes witheld -- (4,344) -- (4,344)
--------- -------- -------- -----------
-----------
Total Investment Income 2,348,734 596,887 -- 2,945,621
--------- -------- -------- -----------
Expenses:
Investment advisory fees 200,002 496,827 199,988 (c) 896,817 (c)
Audit fees 19,998 75,575 (82,573)(d) 13,000
Officer's Salary 226,874 -- (226,874)(e) 0
Legal fees 379,041 126,353 (440,894)(d) 64,500
Shareholders' meeting 153,109 -- (153,109)(f) 0
Administration fees -- 72,708 16,974 (g) 89,682
Custodian fees -- 11,019 3,186 (h) 14,205
Printing 65,629 55,175 (47,804)(i) 73,000
Accounting fees -- 20,992 12,570 (j) 33,562
Directors' fees 60,559 68,342 (77,901)(d) 51,000
Transfer agent fees 11,595 11,679 2,786 (d) 26,060
NYSE listing fees 23,451 26,500 (24,951)(d) 25,000
Insurance 22,989 7,908 (10,897)(d) 20,000
Other 47,185 7,208 (47,248)(d) 7,145
--------- -------- -------- -----------
Total Expenses 1,210,432 980,286 (876,747) 1,313,971
--------- -------- -------- -----------
Less: Fee paid indirectly -- (75,381) (75,381)
Less: Fee waivers -- (73,434) -- (73,434)
--------- -------- -------- -----------
Net Expenses 1,210,432 831,471 (876,747) 1,165,156
--------- -------- -------- -----------
Net Investment Income 1,138,302 (234,584) 876,747 1,780,465
--------- -------- -------- -----------
NET REALIZED AND UNREALIZED GAIN/(LOSS)
ON INVESTMENTS AND FOREIGN
CURRENCY RELATED TRANSACTION
Net realized loss from Investments 311,603 (12,881,037) (12,569,434)
Net change in unrealized appreciation/(depreciation)
in value of investments and translation
of other assets and liabilities denominated in
foreign currencies 221,216 2,927,931 3,149,147
-------- ---------- ----------
Net realized and unrealized gain/(loss) on
investments and foreign currency related transactiON 532,819 (9,953,106) (9,420,287)
-------- ---------- -----------
NET INCREASE IN NET ASSETS RESULTING FROM OPERATIONS 1,671,121 (10,187,690) 876,747 (7,639,822)
---------- ------------ ----------- -----------
------------------------------------------------------------
STATEMENT OF ASSETS AND LIABILITIES
AT DECEMBER 31, 2001 (UNAUDITED)
EIS ACQUIRING FUND CRF ACQUIRING FUND PRO FORMA
ASSETS COST VALUE COST VALUE ADJUSTMENTS COST VALUE
------ ---- ----- ---- ----- ----------- ---- -----
Investments, at value 38,630,035 39,484,717 49,113,722 46,498,003 85,982,720
Cash 1,180 1,180
Cash collateral received for securities loaned 403,806 403,806
Receivables:
Interest 206,984 - 206,984
Dividends - 44,501 44,501
Prepaid expenses and other assets 13,719 2,496 (2,496) (a) 13,719
---------- ---------- ----------
Total Assets 39,706,600 46,948,806 86,652,910
---------- ---------- ----------
LIABILITIES
Payables:
Upon return of securities loaned - 403,806 403,806
Investment advisory fee 50,703 4,221 54,924
Other accrued expenses 108,417 100,666 209,083
---------- ---------- ----------
Total Liabilities 159,120 508,693 667,813
---------- ---------- ----------
Net Assets 39,547,480 46,440,113 85,985,097
---------- ---------- ----------
Net Assets Consist Of:
Capital stock, $0.01 par value; 2,161,091
shares issued and outstanding for EIS
(15,000,000 shares authorized) and
$0.001 par value; 4,630,536 shares
issued and outstanding for CRF
(100,000,000 shares authorized) 21,611 4,631 26,242
Paid-in-capital 38,744,727 73,872,773 (11,891,456) (b) 100,726,044
Cost of 0 and 1,188,211 shares repurchased,
respectively - (11,891,456) 11,891,456 (b) -
Accumulated net investment income 17,592 - (2,496) (a) 15,096
Accumulated net realized loss on investments (91,132) (12,930,116) (13,021,248)
Net unrealized appreciation in value
of investments and translation of other
assets and liabilities denominated in
foreign currencies 854,682 (2,615,719) (1,761,037)
---------- ---------- ----------
39,547,480 46,440,113 85,985,097
---------- ---------- ----------
EIS FUND, INC.
THE CORNERSTONE STRATEGIC RETURN, INC.
NOTES TO PRO FORMA FINANCIAL STATEMENTS (UNAUDITED)
1. Basis of Combination
The unaudited Pro Forma Condensed Portfolio of Investments, Pro Forma
Condensed Statement of Assets and Liabilities and Pro Forma Condensed Statement
of Operations give effect to the proposed merger of EIS Fund, Inc. (EIS) into
The Cornerstone Strategic Return Fund, Inc. ("CRF"). The proposed merger will be
accounted for by the method of accounting for tax-free mergers of investment
companies (sometimes referred to as the pooling-of-interest basis). The Merger
provides for the transfer of all or substantially all of the assets of CRF to
EIS in exchange for EIS common shares, the distribution of such EIS common
shares to common shareholders of CRF and the subsequent liquidation of CRF. Each
share of common stock of CRF will convert into an equivalent dollar amount of
full shares of common stock of EIS based on the net asset value per share of
each Fund.
The pro forma combined statements should be read in conjunction with the
historical financial statements of the constituent Fund and the notes thereto
incorporated by reference in the Registration Statement filed on Form N-14.
EIS and CRF are both closed-end, non-diversified management investment
companies registered under the Investment Company Act of 1940, as amended.
Pro Forma Adjustments:
The Pro Forma adjustments below reflect the impact of the merger between
EIS and CRF.
(a) To remove certain prepaid expenses associated with CRF, in the statement of
assets and liabilities, which will not be assumed by EIS.
(b) In connection with CRF's intention to merge with EIS; CRF reclass its
treasury shares held to paid-in capital.
(c) Adjustment based on contractual agreement with Investment Manager.
(d) Assumes the elimination of duplicative charges resulting from the
combination and reflects management's estimates of combined pro forma
operations.
(e) Assumes elimination of compensation to an officer no longer serving the
fund.
(f) Assumes elimination of fees that are now reflected in printing.
(g) Adjustment based on the contractual agreement with the Administrator for the
combined Fund.
(h) Adjustment based on the contractual agreement with the custodian for the
combined Fund.
(i) Assumes shareholders' meeting fees are combined with printing and reflects
managemant's estimates of combined pro forma operations.
(j) Adjustment based on the contractual agreement with the Accounting fees for
the combined Fund.
2. SIGNIFICANT ACCOUNTING POLICIES
The following is a summary of significant accounting policies, which are
consistently followed by each of PGF and CLM in the preparation of its financial
statements.
MANAGEMENT ESTIMATES: The preparation of financial statements in
accordance with ccounting principles generally accepted in the United States of
America requires management to make certain estimates and assumptions that may
affect the reported amounts and disclosures in the financial statements. Actual
results could differ from those estimates.
PORTFOLIO VALUATION: Investments are stated at value in the accompanying
financial statements. All equity securities are valued at the closing price on
the exchange or market on which the security is primary traded ("Primary
Market"). If the security did not trade on the Primary Market, it shall be
valued at the closing price on another exchange where it trades. If there is no
such sale prices, the value shall be the most recent bid, and if there is no
bid, the security shall be valued at the most recent asked. If no pricing
service is available and there are more than two dealers, the value shall be the
mean of the highest bid and lowest ask. If there is only one dealer, then the
value shall be the mean if bid and ask are available, otherwise the value shall
be the bid.
All other securities and assets
are valued as determined in good faith by the Board of Directors. Short-term
investments having a maturity of 60 days or less are valued on the basis of
amortized cost. The Board of Directors has established general guidelines for
calculating fair value of not readily marketable securities. The net asset value
per share of each Fund is calculated weekly and on the last business day of the
month with the exception of those days on which the New York Stock Exchange is
closed.
INVESTMENT TRANSACTIONS AND INVESTMENT INCOME: Investment transactions
are accounted for on the trade date. The cost of investments sold is determined
by use of the specific identification method for both financial reporting and
income tax purposes. Interest income is recorded on an accrual basis; dividend
income is recorded on the ex-dividend date.
TAXES: No provision is made for U.S. federal income or excise taxes as it
is each Fund's intention to continue to qualify as a regulated investment
company and to make the requisite distributions to its shareholders which will
be sufficient to relieve it from all or substantially all U.S. federal income
and excise taxes.
DISTRIBUTIONS OF INCOME AND GAINS: Each Fund distributes at least
annually to shareholders, substantially all of its net investment income and net
realized short-term capital gains, if any. Each Fund determines annually whether
to distribute any net realized long-term capital gains in excess of net
short-term capital losses, including capital loss carryovers, if any. An
additional distribution may be made to the extent necessary to avoid the payment
of a 4% U.S. federal excise tax. Dividends and distributions to shareholders are
recorded by each Fund on the ex-dividend date. .
The board of Directors of each Fund may, if it it determined to be in the
best interest of each Fund and its shareholders, time to time authorize and
declare distribution that may be substantially characterized as a return of
capital.
The character of distributions made during the year from net investment
income or net realized gains may differ from their ultimate characterization for
U.S. federal income tax purposes due to U.S. generally accepted accounting
principles/tax differences in the character of income and expense recognition.
OTHER: Securities denominated in currencies other than U.S. dollars are
subject to changes in value due to fluctuations in exchange rates.
PART C
OTHER INFORMATION
ITEM 15. INDEMNIFICATION
A policy of insurance covering Cornerstone Advisors, Inc., its
affiliates, and all of the registered investment companies advised by
Cornerstone Advisors insures the Registrant's directors and officers and others
against liability arising by reason of an alleged breach of duty caused by any
negligent act, error or accidental omission in the scope of their duties.
ITEM 16. EXHIBITS.
(1) Copy of the Articles of Incorporation of EIS as now in effect
(2) Amended and Restated By-Laws as of August 2, 2002 of the Registrant
(3) Not Applicable
(4) Copy of Agreement and Plan of Reorganization (included as Exhibit A to the
Proxy Statement/Prospectus, which is part of the Registration Statement on Form
N-14).
(5) Not Applicable
(6) Copy of the Investment Management Agreement dated as of January 2, 2002
between Cornerstone Advisors, Inc. and EIS - incorporated herein by reference to
Exhibit D to EIS's Proxy Statement for the Special Meeting of Stockholders held
on December 27, 2001 on Schedule 14A as filed with the Commission on November
29, 2001.
(7) Not Applicable
(8) Not Applicable
(9) Custody Agreement -
(10) Not Applicable
(11) Opinion and consent of Counsel regarding legality of securities being
registered.
(12) Opinion and consent of Counsel regarding certain tax matters and
consequences to shareholders.
(13) Not Applicable
(14) Consent of Independent Auditors
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(15) Not Applicable
(16) Not Applicable
(17) Not Applicable
ITEM 17. UNDERTAKINGS.
The undersigned registrant agrees that prior to any public reoffering
of the securities registered through the use of a prospectus which is a part of
this registration statement by any person or party who is deemed to be an
underwriter within the meaning of Rule 145(c) of the Securities Act [17 CFR
230.145c], the reoffering prospectus will contain the information called for by
the applicable registration form for reofferings by persons who may be deemed
underwriters, in addition to the information called for by the other items of
the applicable form.
The undersigned registrant agrees that every prospectus that is filed
under paragraph (1) above will be filed as part of an amendment to the
registration statement and will not be used until the amendment is effective,
and that, in determining any liability under the 1933 Act, each post-effective
amendment shall be deemed to be a new registration statement for the securities
offered therein, and the offering of securities at that time shall be deemed to
be the initial bona fide offering of them.
SIGNATURES
As required by the Securities Act of 1933, this registration
statement has been signed on behalf of the registrant, in the City of New York
and the State of New York, on the 2nd day of August, 2002.
EIS FUND, INC.
By: /S/ RALPH W. BRADSHAW
-----------------------------
Name: Ralph Bradshaw
Title: President
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As required by the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated:
/S/ ANDREW STRAUSS
Andrew A. Strauss, Director
/S/ SCOTT ROGERS
Scott B. Rogers, Director
/S/ RALPH W. BRADSHAW
Ralph W. Bradshaw, Director
/S/ GLENN W. WILCOX, SR.
----------------------------------
Glenn W. Wilcox, Sr., Director
/S/ GARY A. BENTZ
-------------------------------
Gary A. Bentz, Director
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