SUB-ITEM 77Q1(g)--Exhibits
Agreement and Plan of Reorganization for International Focus Portfolio
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as
of this 21st day of May, 2003, between and among Credit Suisse
Institutional Fund, Inc., a Maryland corporation, for and on behalf of
its International Focus Portfolio (the "Acquiring Fund"), and Credit
Suisse Institutional International Fund, Inc., a Maryland corporation
(the "Acquired Fund"), and, solely for purposes of Sections 4.3,
5.9 and 9.2 hereof, Credit Suisse Asset Management, LLC, a limited
liability company organized under the laws of the State of Delaware
("CSAM").
This Agreement is intended to be and is adopted as a plan of reorganization
within the meaning of Section 368(a) of the Internal Revenue Code of 1986,
as amended (the "Code'). The reorganization of the Acquired Fund
(collectively, the "Reorganization") will consist of the transfer of all
of the assets of the Acquired Fund in exchange solely for shares of
common stock of the Acquiring Fund ("Acquiring Fund Shares"), and the
assumption by the Acquiring Fund of the liabilities of the Acquired
Fund, and the distribution, on or after the Closing Date hereinafter
referred to, of Acquiring Fund Shares to the shareholders of the
Acquired Fund ("Acquired Fund Shareholders") in liquidation of the
Acquired Fund as provided herein, all upon the terms and conditions
hereinafter set forth in this Agreement.
As the Acquiring Fund is a portfolio of the Credit Suisse Institutional
Fund, Inc., all parties to this Agreement acknowledge and accept that
the Acquiring Fund does not have a Board of Directors or officers
separate from the other portfolios of Credit Suisse Institutional Fund,
Inc. Accordingly, all representations, warranties, covenants and/or
other obligations of any kind made by the Acquiring Fund in this Agreement
are expressly understood by all parties to this Agreement as being made
by the Directors or officers of Credit Suisse Institutional Fund, Inc.,
as applicable, in their respective capacities as Directors or officers
(and not in their individual capacities) for, and on behalf of, the
Acquiring Fund.
WHEREAS, the Board of Directors of the Acquired Fund has determined that
the exchange of all of the assets of the Acquired Fund for Acquiring Fund
Shares and the assumption of the liabilities of the Acquired Fund by the
Acquiring Fund is in the best interests of the Acquired Fund and that
the interests of the existing Acquired Fund Shareholders would not be
diluted as a result of this transaction; and
WHEREAS, the Board of Directors of the Acquiring Fund has determined
that the exchange of all of the assets of the Acquired Fund for Acquiring
Fund Shares is in the best interests of the Acquiring Fund's shareholders
and that the interests of the existing shareholders of the Acquiring
Fund would not be diluted as a result of this transaction.
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter set forth, the parties hereto covenant and agree
as follows:
1. Transfer of Assets of the Acquired Fund in Exchange for Acquiring
Fund Shares and Assumption of the Acquired Fund's Liabilities and
Liquidation of the Acquired Fund.
1.1. Subject to the terms and conditions herein set forth and on the
basis of the representations and warranties contained herein, the Acquired
Fund agrees to transfer its assets as set forth in paragraph 1.2 to the
Acquiring Fund, and the Acquiring Fund agrees in exchange therefor:
(i) to deliver to the Acquired Fund the number of Acquiring Fund Shares,
including fractional Acquiring Fund Shares, determined by dividing the
value of the Acquired Fund's net assets, computed in the manner and as
of the time and date set forth in paragraph 2.1, by the net asset value
of one Acquiring Fund Share; and (ii) to assume the liabilities of the
Acquired Fund, as set forth in paragraph 1.3. Such transactions shall
take place at the closing provided for in paragraph 3.1 (the "Closing").
1.2. (a) The assets of the Acquired Fund to be acquired by the
Acquiring Fund shall consist of all property including, without
limitation, all cash, securities and dividend or interest receivables
that are owned by or owed to the Acquired Fund and any deferred or
prepaid expenses shown as an asset on the books of the Acquired Fund
on the Closing date provided in paragraph 3.1 (the "Closing Date").
(b) The Acquired Fund has provided the Acquiring Fund with a list
of all of the Acquired Fund's assets as of the date of execution of
this Agreement. The Acquired Fund reserves the right to sell any of
these securities but will not, without the prior approval of the
Acquiring Fund, acquire any additional securities other than securities
of the type in which the Acquiring Fund is permitted to invest.
The Acquired Fund will, within a reasonable time prior to the Closing
Date, furnish the Acquiring Fund with a list of the securities, if any,
on the Acquired Fund's list referred to in the first sentence of this
paragraph which do not conform to the Acquiring Fund's investment
objective, policies and restrictions. In the event that the Acquired
Fund holds any investments which the Acquiring Fund may not hold, the
Acquired Fund will dispose of such securities prior to the Closing Date.
In addition, if it is determined that the portfolios of the Acquired
Fund and the Acquiring Fund, when aggregated, would contain investments
exceeding certain percentage limitations imposed upon the Acquiring
Fund with respect to such investments or would contain investments
exceeding the number CSAM considers appropriate given the Acquiring
Fund's focused investment approach, the Acquired Fund, if requested
by the Acquiring Fund, will dispose of and/or reinvest a sufficient
amount of such investments as may be necessary to avoid violating such
limitations or investment policy as of the Closing Date.
1.3. The Acquired Fund will endeavor to discharge all of the known
liabilities and obligations of the Acquired Fund prior to the Closing
Date, other than those liabilities and obligations which would otherwise
be discharged at a later date in the ordinary course of business.
The Acquiring Fund shall assume all liabilities, expenses, costs,
charges and reserves, including those liabilities reflected on unaudited
statements of assets and liabilities of the Acquired Fund and the
Acquiring Fund prepared by State Street Bank and Trust Company
("State Street"), the accounting agent of each Fund, as of the
Valuation Date (as defined in paragraph 2.1), in accordance with
generally accepted accounting principles consistently applied from
the prior audited period. The Acquiring Fund shall also assume any
liabilities, expenses, costs or charges incurred by or on behalf
of the Acquired Fund specifically arising from or relating to the
operations and/or transactions of the Acquired Fund prior to and
including the Closing Date but which are not reflected on the above-
mentioned statement of assets and liabilities, including any liabilities,
expenses, costs or charges arising under paragraph 5.7 hereof.
1.4. As soon on or after the Closing Date as is conveniently
practicable (the "Liquidation Date"), the Acquired Fund will liquidate
and distribute pro rata to the Acquired Fund's Shareholders of record
determined as of the close of business on the Closing Date the Acquiring
Fund Shares it receives pursuant to paragraph 1.1. Such liquidation and
distribution will be accomplished by the transfer of the Acquiring Fund
Shares then credited to the account of the Acquired Fund on the books
of the Acquiring Fund to open accounts on the share records of the
Acquiring Fund in the name of the Acquired Fund Shareholders representing
the respective pro rata number of the Acquiring Fund Shares due such
shareholders. All issued and outstanding shares of the Acquired Fund
("Acquired Fund Shares") will simultaneously be canceled on the books
of the Acquired Fund, although share certificates representing interests
in the Acquired Fund will represent a number of Acquiring Fund Shares
after the Closing Date as determined in accordance with Section 2.2.
The Acquiring Fund shall not issue certificates representing the
Acquiring Fund Shares in connection with such exchange.
1.5. Ownership of Acquiring Fund Shares will be shown on the books
of the Acquiring Fund's transfer agent. Acquiring Fund Shares will
be issued in the manner described in the Acquiring Fund's current
prospectuses and statement of additional information.
1.6. Any transfer taxes payable upon issuance of the Acquiring Fund
Shares in a name other than the registered holder of the Acquired Fund
Shares on the books of the Acquired Fund as of that time shall, as a
condition of such issuance and transfer, be paid by the person to whom
such Acquiring Fund Shares are to be issued and transferred.
1.7. Any reporting responsibility of the Acquired Fund is and shall
remain the responsibility of the Acquired Fund up to and including
the applicable Closing Date and such later date on which the Acquired
Fund is terminated.
2. Valuation
2.1. The value of the Acquired Fund's assets to be acquired hereunder
shall be the value of such assets computed as of the close of regular
trading on The New York Stock Exchange, Inc. (the "NYSE") on the Closing
Date (such time and date being hereinafter called the "Valuation Date"),
using the valuation procedures set forth in the Acquired Fund's then
current prospectus or statement of additional information.
2.2. The number of Acquiring Fund Shares to be issued (including
fractional shares, if any) in exchange for Acquired Fund Shares shall
be determined by dividing the value of the net assets of the Acquired
Fund Shares determined using the same valuation procedures referred to
in paragraph 2.1, by the per share net asset value of the Acquiring
Fund Shares computed as of the close of regular trading on the NYSE on
the Closing Date, using the valuation procedures set forth in the
Acquiring Fund's then current prospectus or statement of additional
information.
2.3. All computations of value with respect to the Acquiring Fund and
the Acquired Fund shall be made by State Street in accordance with its
regular practice as pricing agent for the Acquiring Fund.
3. Closing and Closing Date
3.1. The Closing Date for the Reorganization shall be August 22, 2003,
or such other date as the parties to such Reorganization may agree to
in writing. All acts taking place at the Closing shall be deemed to
take place simultaneously as of the close of trading on the NYSE on the
Closing Date unless otherwise provided. The Closing shall be held as
of 10:00 a.m., at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ or at such
other time and/or place as the parties may agree.
3.2. State Street, the custodian for the Acquiring Fund, shall deliver
as soon as practicable after the Closing a certificate of an authorized
officer stating that: (a) the Acquired Fund's portfolio securities,
cash and any other assets have been delivered in proper form to the
Acquiring Fund on the Closing Date and (b) all necessary taxes, including
all applicable federal and state stock transfer stamps, if any, have been
paid, or provision for payment has been made, in conjunction with the
delivery of portfolio securities.
3.3. In the event that on the Valuation Date (a) the NYSE or another
primary trading market for portfolio securities of the Acquiring Fund or
the Acquired Fund shall be closed to trading or trading thereon shall
be restricted or (b) trading or the reporting of trading on the NYSE or
elsewhere shall be disrupted so that accurate appraisal of the value
of the net assets of the Acquiring Fund or the Acquired Fund is
impracticable, the applicable Closing Date shall be postponed until
the first business day after the day when trading shall have been
fully resumed and reporting shall have been restored.
3.4. The Acquired Fund shall deliver at the Closing a list of the
names and addresses of the Acquired Fund's Shareholders and the number
of outstanding Acquired Fund Shares owned by each such shareholder
immediately prior to the Closing or provide evidence that such information
has been provided to the Acquiring Fund's transfer agent. The Acquiring
Fund shall issue and deliver a confirmation evidencing the Acquiring
Fund Shares to be credited to the Acquired Fund's account on the Closing
Date to the Secretary of the Acquired Fund or provide evidence
satisfactory to the Acquired Fund that such Acquiring Fund Shares
have been credited to the Acquired Fund's account on the books of the
Acquiring Fund. At the Closing, each party shall deliver to the
relevant other parties such bills of sale, checks, assignments,
share certificates, if any, receipts or other documents as such
other party or its counsel may reasonably request.
4. Representations and Warranties
4.1. The Acquired Fund represents and warrants to the Acquiring
Fund as follows:
(a) The Acquired Fund is a duly organized, validly existing
corporation in good standing under the laws of the State of Maryland;
(b) The Acquired Fund is a registered investment company classified
as a management company of the open-end type and its registration
with the Securities and Exchange Commission (the "Commission") as an
investment company under the Investment Company Act of 1940, as amended
(the "1940 Act"), is in full force and effect;
(c) The Acquired Fund is not, and the execution, delivery and
performance of this Agreement by the Acquired Fund will not result,
in a violation of the Acquired Fund's Articles of Incorporation or
By-Laws or any material agreement, indenture, instrument, contract,
lease or other undertaking to which the Acquired Fund is a party or
by which the Acquired Fund or its property is bound or affected;
(d) There are no contracts or other commitments (other than this
Agreement) of the Acquired Fund which will be terminated with liability
to the Acquired Fund prior to the Closing Date;
(e) Except as previously disclosed in writing to and accepted by
the Acquiring Fund, no litigation or administrative proceeding or
investigation of or before any court or governmental body is presently
pending or to its knowledge threatened against the Acquired Fund or
any of its properties or assets which, if adversely determined, would
materially and adversely affect its financial condition or the conduct
of its business. Except as previously disclosed in writing to and
accepted by the Acquiring Fund, the Acquired Fund knows of no facts
which might form the basis for the institution of such proceedings and
is not party to or subject to the provisions of any order, decree or
judgment of any court or governmental body which materially and
adversely affects its business or the business of the Acquired Fund or
its ability to consummate the transactions herein contemplated;
(f) The Statements of Assets and Liabilities of the Acquired Fund
as of August 31, 2002, including the Schedule of Investments and the
related Statement of Operations for the year then ended, the Statement
of Changes in Net Assets for each of the two years in the period then
ended, and the Financial Highlights for each of the five years in the
period then ended have been audited by PricewaterhouseCoopers LLP (or
one of its legacy firms), independent accountants, and are in accordance
with generally accepted accounting principles consistently applied, and
such statements (copies of which have been furnished to the Acquiring
Fund) fairly reflect the financial condition of the Acquired Fund as of
such dates, and there are no known contingent liabilities as of August
31, 2002 not disclosed therein;
(g) Since August 31, 2002, there has not been any material adverse
change in the Acquired Fund's financial condition, assets, liabilities
or business other than changes occurring in the ordinary course of
business, or any incurrence by the Acquired Fund of indebtedness maturing
more than one year from the date such indebtedness was incurred except
as otherwise disclosed to and accepted in writing by the Acquiring Fund.
For purposes of this subsection (g), a decline in the per share net
asset value of the Acquired Fund Shares due to declines in market
values of securities in the Acquired Fund's portfolio, the discharge
of Fund liabilities, or the redemption of the Acquired Fund Shares by
Acquired Fund shareholders shall not constitute a material adverse change;
(h) At the date hereof and the Closing Date, all federal and other
tax returns and reports, including extensions, of the Acquired Fund
required by law to have been filed by such dates shall have been filed,
and all federal and other taxes shall have been paid so far as due, or
provision shall have been made for the payment thereof and, to the best
of the Acquired Fund's knowledge, no such return is currently under
audit and no assessment has been asserted with respect to such returns;
(i) For each taxable year of its operation (including the taxable
year ending on the Closing Date), the Acquired Fund has met the
requirements of Subchapter M of the Code for qualification and treatment
as a regulated investment company; all of the issued and outstanding
Acquired Fund Shares have been offered and sold in compliance in all
material respects with applicable federal and state securities laws;
(j) All issued and outstanding Acquired Fund Shares are, and at the
Closing Date will be, duly and validly issued and outstanding, fully
paid and non-assessable. All of the issued and outstanding Acquired
Fund Shares will, at the time of Closing, be held by the persons and
in the amounts set forth in the records of the transfer agent as
provided in paragraph 3.4. The Acquired Fund does not have outstanding
any options, warrants or other rights to subscribe for or purchase any
Acquired Fund Shares, nor is there outstanding any security convertible
into any Acquired Fund Shares;
(k) At the Closing Date, the Acquired Fund will have good and
marketable title to the Acquired Fund's assets to be transferred to the
Acquiring Fund pursuant to paragraph 1.2 and full right, power and
authority to sell, assign, transfer and deliver such assets hereunder
and, upon delivery and payment for such assets, the Acquiring Fund will
acquire good and marketable title thereto, subject to no restrictions
on the full transfer thereof, except such restrictions as might arise
under the Securities Act of 1933, as amended (the "1933 Act"), and the
1940 Act with respect to privately placed or otherwise restricted
securities that the Acquired Fund may have acquired in the ordinary
course of business and of which the Acquiring Fund has received notice
and necessary documentation at or prior to the Closing;
(l) The execution, delivery and performance of this Agreement has
been duly authorized by all necessary actions on the part of the
Acquired Fund's Board of Directors, and subject to the approval of
the Acquired Fund Shareholders, this Agreement will constitute a
valid and binding obligation of the Acquired Fund enforceable in
accordance with its terms, subject to the effect of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other laws relating to or affecting creditors' rights and to general
equity principles;
(m) The information to be furnished by the Acquired Fund for use
in applications for orders, registration statements or proxy materials
or for use in any other document filed or to be filed with any
federal, state or local regulatory authority (including the NASD,
Inc.), which may be necessary in connection with the transactions
contemplated hereby, shall be accurate and complete in all material
respects and shall comply in all material respects with federal
securities and other laws and regulations applicable thereto;
(n) The current prospectus and statement of additional information
of the Acquired Fund conform in all material respects to the applicable
requirements of the 1933 Act and the 1940 Act and the rules and
regulations of the Commission thereunder and do not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not materially misleading; and
(o) Insofar as the following relate to the Acquired Fund, the
registration statement filed by the Acquiring Fund on Form N-14
relating to Acquiring Fund Shares that will be registered with the
Commission pursuant to this Agreement, which, without limitation,
shall include a proxy statement of the Acquired Fund (the "Proxy
Statement") and the prospectus of the Acquiring Fund with respect
to the transactions contemplated by this Agreement, and any supplement
or amendment thereto, and the documents contained or incorporated
therein by reference (collectively, the "N-14 Registration Statement"),
on the effective date of the N-14 Registration Statement, at the time
of any shareholders' meeting referred to herein, on the Valuation Date
and on the Closing Date: (i) shall comply in all material respects
with the provisions of the 1933 Act, the Securities Exchange Act
of 1934 (the "1934 Act") and the 1940 Act and the rules and regulations
under those Acts, and (ii) shall not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that the representations and warranties
in this section shall not apply to statements in or omissions from the
Proxy Statement and the N-14 Registration Statement made in reliance
upon and in conformity with information that was furnished or should
have been furnished by the Acquiring Fund for use therein.
4.2. The Acquiring Fund represents and warrants to the Acquired
Fund as follows:
(a) The Acquiring Fund is a duly established portfolio of the
Credit Suisse Institutional Fund, Inc., a duly organized, validly
existing corporation in good standing under the laws of the State
of Maryland;
(b) The Credit Suisse Institutional Fund, Inc. is a registered
investment company classified as a management company of the
open-end type and its registration with the Commission as an investment
company under the 1940 Act is in full force and effect;
(c) The current prospectus and statement of additional information
filed as part of the Acquiring Fund registration statement on Form
N-1A (the "Acquiring Fund Registration Statement") conform in all
material respects to the applicable requirements of the 1933 Act
and the 1940 Act and the rules and regulations of the Commission
under those Acts and do not include any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
materially misleading;
(d) At the Closing Date, the Acquiring Fund will have good and
marketable title to its assets;
(e) The Acquiring Fund is not, and the execution, delivery and
performance of this Agreement will not result, in a violation of
the Acquiring Fund Articles of Incorporation or By-Laws of Credit
Suisse Institutional Fund, Inc. or any material agreement,
indenture, instrument, contract, lease or other undertaking to
which the Acquiring Fund is a party or by which the Acquiring Fund
or its property is bound;
(f) Except as previously disclosed in writing to and accepted
by the Acquired Fund, no litigation or administrative proceeding
or investigation of or before any court or governmental body is
presently pending or to its knowledge threatened against the
Acquiring Fund or any of its properties or assets which, if adversely
determined, would materially and adversely affect its financial
condition or the conduct of its business. The Acquiring Fund knows of
no facts which might form the basis for the institution of such
proceedings and is not a party to or subject to the provisions of
any order, decree or judgment of any court or governmental body which
materially and adversely affects its business or its ability to
consummate the transactions contemplated herein;
(g) Since October 31, 2002, there has not been any material adverse
change in the Acquiring Fund's financial condition, assets,
liabilities or business other than changes occurring in the ordinary
course of business, or any incurrence by the Acquiring Fund of
indebtedness maturing more than one year from the date such indebtedness
was incurred except as otherwise disclosed to and accepted in writing
by the Acquired Fund. For purposes of this subsection (g), a decline
in the per share net asset value of the Acquiring Fund Shares due
to declines in market values of securities in the Acquiring Fund's
portfolio, the discharge of Acquiring Fund liabilities, or the
redemption of Acquiring Fund Shares by Acquiring Fund Shareholders
shall not constitute a material adverse change;
(h) At the Closing Date, all federal and other tax returns and
reports, including extensions, of the Acquiring Fund required by
law then to be filed shall have been filed, and all federal and
other taxes shown as due on said returns and reports shall have
been paid or provision shall have been made for the payment thereof;
(i) For each taxable year of its operation (including the taxable
year which includes the Closing Date), the Acquiring Fund has met
the requirements of Subchapter M of the Code for qualification as
a regulated investment company and has elected to be treated as such,
has been eligible to and has computed its federal income tax under
Section 852 of the Code;
(j) At the date hereof, all issued and outstanding Acquiring
Fund Shares are, and at the Closing Date will be, duly and validly
issued and outstanding, fully paid and non-assessable. The Acquiring
Fund does not have outstanding any options, warrants or other rights
to subscribe for or purchase any Acquiring Fund Shares, nor is there
outstanding any security convertible into any Acquiring Fund Shares;
(k) The execution, delivery and performance of this Agreement has
been duly authorized by all necessary actions on the part of the
Acquiring Fund's Board of Directors, and this Agreement will
constitute a valid and binding obligation of the Acquiring Fund
enforceable in accordance with its terms, subject to the effect of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other laws relating to or affecting creditors' rights
and to general equity principles;
(l) The Acquiring Fund Shares to be issued and delivered to the
Acquired Fund, for the account of the Acquired Fund Shareholders,
pursuant to the terms of this Agreement, will at the Closing Date
have been duly authorized and when so issued and delivered, will be
duly and validly issued Acquiring Fund Shares, and will be fully paid
and non-assessable;
(m) Insofar as the following relate to the Acquiring Fund, the
N-14 Registration Statement, on the effective date of the N-14
Registration Statement, at the time of any shareholders' meeting
referred to herein, on the Valuation Date and on the Closing Date:
(i) shall comply in all material respects with the provisions of the
1933 Act, the 1934 Act and the 1940 Act and the rules and regulations
under those Acts, and (ii) shall not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that the representations and warranties
in this section shall not apply to statements in or omissions from the
Proxy Statement and the N-14 Registration Statement made in reliance
upon and in conformity with information that was furnished or should
have been furnished by the Acquired Fund for use therein; and
(n) The Acquiring Fund agrees to use all reasonable efforts to
obtain the approvals and authorizations required by the 1933 Act, the
1940 Act and such of the state Blue Sky or securities laws as it may
deem appropriate in order to continue its operations after the Closing
Date.
4.3. CSAM represents and warrants to the Acquiring Fund as follows:
To the knowledge of CSAM (i) there are no claims, actions, suits or
proceedings pending against the Acquired Fund, and (ii) there are no
claims, actions, suits or proceedings threatened, or circumstances
that have been identified by the Management Committee of CSAM and the
Secretary thereof as reasonably likely to give rise to any claims,
actions, suits or proceedings, against the Acquired Fund that would
materially adversely affect the Acquired Fund or its assets or
business other than those disclosed in writing to and accepted by
the Acquiring Fund.
5. Covenants of the Acquired Fund and the Acquiring Fund
5.1. The Acquiring Fund and the Acquired Fund will operate their
respective businesses in the ordinary course between the date hereof
and the Closing Date. It is understood that such ordinary course of
business will include the declaration and payment of customary
dividends and distributions.
5.2. The Acquired Fund will call a meeting of the Acquired Fund
Shareholders to consider and act upon this Agreement and to take all
other actions necessary to obtain approval of the transactions
contemplated herein.
5.3. The Acquired Fund covenants that the Acquiring Fund Shares
to be issued hereunder are not being acquired for the purpose of
making any distribution thereof other than in accordance with the
terms of this Agreement.
5.4. The Acquired Fund will assist the Acquiring Fund in obtaining
such information as the Acquiring Fund reasonably requests concerning
the beneficial ownership of the Acquired Fund Shares.
5.5. Subject to the provisions of this Agreement, the Acquiring
Fund and the Acquired Fund will each take, or cause to be taken,
all action, and do or cause to be done, all things reasonably necessary,
proper or advisable to consummate and make effective the transactions
contemplated by this Agreement.
5.6. The Acquired Fund will provide the Acquiring Fund with
information reasonably necessary for the preparation of a prospectus
(the "Prospectus") which will include the Proxy Statement referred to
in paragraph 4.1(o), all to be included in the N-14 Registration
Statement, in compliance with the 1933 Act, the 1934 Act and the 1940
Act in connection with the meeting of the Acquired Fund Shareholders
to consider approval of this Agreement and the transactions contemplated
herein.
5.7. The Acquiring Fund agrees to indemnify and advance expenses to
each person who at the time of the execution of this Agreement serves
as a Director or Officer ("Indemnified Person") of the Acquired Fund,
against money damages actually and reasonably incurred by such
Indemnified Person in connection with any claim that is asserted against
such Indemnified Person arising out of such person's service as a
Director or officer of the Acquired Fund with respect to matters
specifically relating to the Reorganization, provided that such
indemnification and advancement of expenses shall be permitted to the
fullest extent that is available under applicable law. This paragraph 5.7
shall not protect any such Indemnified Person against any liability to the
Acquired Fund, the Acquiring Fund or their respective shareholders to
which he would otherwise be subject by reason of willful misfeasance, bad
faith, gross negligence or from reckless disregard of the duties involved
in the conduct of his office. An Indemnified Person seeking
indemnification shall be entitled to advances from the Acquiring Fund
for payment of the reasonable expenses incurred by him in connection
with the matter as to which he is seeking indemnification in the manner
and to the fullest extent permissible under applicable law. Such
Indemnified Person shall provide to the Acquiring Fund a written
affirmation of his good faith belief that the standard of conduct
necessary for indemnification by the Acquiring Fund under this
paragraph has been met and a written undertaking to repay any
advance if it should ultimately be determined that the standard of
conduct has not been met. In addition, at least one of the following
additional conditions shall be met: (a) the Indemnified Person shall
provide security in form and amount acceptable to the Acquiring Fund
for its undertaking; (b) the Acquiring Fund is insured against losses
arising by reason of the advance; or (c) either a majority of a quorum
of disinterested non-party Directors of the Acquiring Fund (collectively,
the "Disinterested Directors"), or independent legal counsel experienced
in mutual fund matters, selected by the Indemnified Person, in a written
opinion, shall have determined, based on a review of facts readily a
vailable to the Acquiring Fund at the time the advance is proposed to
be made, that there is reason to believe that the Indemnified Person
will ultimately be found to be entitled to indemnification.
5.8. The Acquiring Fund agrees to take no action that would adversely
affect the qualification of the Reorganization as a reorganization under
Section 368(a) of the Code. In this regard, the Acquiring Fund
covenants that, following the Reorganization, it (a) will (i) continue
the historic business of the Acquired Fund or (ii) use a significant
portion of the Acquired Fund's historic business assets, and (b) will
not sell or otherwise dispose of any of the assets of the Acquired
Fund, except for dispositions in the ordinary course of business or
transfers to a corporation (or other entity classified for federal
income tax purposes as an association taxable as a corporation) that
is "controlled" by the Acquiring Fund within the meaning of Section
368(c) of the Code.
5.9. CSAM agrees that the Credit Suisse Institutional Fund, Inc.,
on behalf of the Acquiring Fund, will succeed to all rights that the
Acquired Fund has, or would have but for the Reorganization, against
CSAM or its affiliates by reason of any act or failure to act by CSAM
or any of its affiliates prior to the Closing Date.
6. Conditions Precedent to Obligations of the Acquired Fund
The obligations of the Acquired Fund to consummate the transactions
provided for herein shall be subject, at its election, to the
performance by the Acquiring Fund of all of the obligations to be
performed by it hereunder on or before the Closing Date and, in
addition thereto, the following further conditions:
6.1. All representations and warranties of the Acquiring Fund c
ontained in this Agreement shall be true and correct in all material
respects as of the date hereof and, except as they may be affected
by the actions contemplated by this Agreement, as of the Closing Date
with the same force and effect as if made on and as of the Closing Date;
6.2. The Acquiring Fund shall have delivered to the Acquired Fund
a certificate executed in its name by its Chairman, President, Vice
President, Secretary, Treasurer or Assistant Treasurer, in a form
reasonably satisfactory to the Acquired Fund and dated as of the
Closing Date, to the effect that the representations and warranties
of the Acquiring Fund made in this Agreement are true and correct
at and as of the Closing Date, except as they may be affected by
the transactions contemplated by this Agreement and as to such other
matters as the Acquired Fund shall reasonably request; and
6.3. The Acquired Fund shall have received on the Closing Date a
favorable opinion from ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel to the
Acquiring Fund, dated as of the Closing Date, in a form reasonably
satisfactory to the Acquired Fund, covering the following points:
That (a) the Credit Suisse Institutional Fund, Inc. is a validly existing
corporation and in good standing under the laws of the State of Maryland,
and has the corporate power to own all of its properties and assets and
to carry on its business as a registered investment company; (b) the
Agreement has been duly authorized, executed and delivered by the
Credit Suisse Institutional Fund, Inc. on behalf of the Acquiring
Fund and the Acquiring Fund is a duly established portfolio of the
Credit Suisse Institutional Fund, Inc. and, assuming due authorization,
execution and delivery of the Agreement by the other parties thereto,
is a valid and binding obligation of the Credit Suisse Institutional
Fund, Inc. enforceable against the Acquiring Fund in accordance with
its terms, subject to the effect of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; (c) the Acquiring Fund Shares to be issued to the
Acquired Fund Shareholders as provided by this Agreement are duly
authorized and upon such delivery will be validly issued and outstanding
and are fully paid and non-assessable, and no shareholder of the Acquiring
Fund has any preemptive rights to subscription or purchase in respect
thereof; (d) the execution and delivery of this Agreement did not, and
the consummation of the transactions contemplated hereby will not,
conflict with the Credit Suisse Institutional Fund, Inc.'s Articles of
Incorporation or By-Laws or result in a material violation of any
provision of any material agreement (known to such counsel) to which the
Credit Suisse Institutional Fund, Inc. is a party or by which it or its
property is bound or, to the knowledge of such counsel, result in the
acceleration of any obligation or the imposition of any penalty, under
any material agreement, judgment or decree to which the Credit Suisse
Institutional Fund, Inc. is a party or by which it or its property is
bound; (e) to the knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority of the
United States or the State of Maryland is required for the consummation
by the Acquiring Fund of the actions contemplated herein, except such
as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act,
and such as may be required under state securities laws; (f) only insofar
as they relate to the Acquiring Fund, the descriptions in the Proxy
Statement of statutes, legal and governmental proceedings, investigations,
orders, decrees or judgments of any court or governmental body in the
United States and contracts and other documents, if any, are accurate
and fairly present the information required to be shown; (g) to the
knowledge of such counsel, there is no legal, administrative or
overnmental proceeding, investigation, order, decree or judgment of
any court or governmental body, only insofar as they relate to the
Acquiring Fund or its assets or properties, pending, threatened or
otherwise existing on or before the effective date of the N-14
Registration Statement or the Closing Date, which are required to be
described in the N-14 Registration Statement or to be filed as an
exhibit to the N-14 Registration Statement which is not described
and filed as required or which materially and adversely affect the
Acquiring Fund's business; (h) the Credit Suisse Institutional Fund,
Inc. is registered as an investment company under the 1940 Act and,
to the knowledge of such counsel, its registration with the Commission
as an investment company under the 1940 Act is in full force and effect;
and (i) the Proxy Statement, as of its date, appeared on its face to be
appropriately responsive in all material respects to the requirements
of the 1933 Act, the 1934 Act and the 1940 Act and the rules and
regulations thereunder; provided, however, that such counsel shall
be entitled to state that it does not assume any responsibility for
the accuracy, completeness or fairness of the Proxy Statement.
With respect to all matters of Maryland law, such counsel shall be
entitled to state that, with the approval of the Acquired Fund, they
have relied upon the opinion of ▇▇▇▇▇▇▇, Baetjer and ▇▇▇▇▇▇, LLP, and
that their opinion is subject to the same assumptions, qualifications
and limitations with respect to such matters as are contained in the
opinion of ▇▇▇▇▇▇▇, Baetjer and ▇▇▇▇▇▇, LLP. Such opinion also shall
include such other matters incident to the transaction contemplated
hereby as the Acquired Fund may reasonably request.
In this paragraph 6.3, references to the Proxy Statement include and
relate only to the text of such Proxy Statement and not, except as
specifically stated above, to any exhibits or attachments thereto or
to any documents incorporated by reference therein.
6.4. The Board of Directors of the Acquiring Fund, including a
majority of the directors who are not "interested persons" of the
Acquiring Fund (as defined in the 1940 Act), shall have determined
that this Agreement and the transactions contemplated hereby are in
the best interests of the Acquiring Fund and that the interests of
the shareholders in the Acquiring Fund would not be diluted as a result
of such transactions, and the Acquiring Fund shall have delivered
to the Acquired Fund at the Closing, a certificate, executed by an
officer, to the effect that the condition described in this subparagraph
has been satisfied.
7. Conditions Precedent to Obligations of the Acquiring Fund
The obligations of the Acquiring Fund to complete the transactions
provided for herein shall be subject, at its election, to the performance
by the Acquired Fund of all the obligations to be performed by it
hereunder on or before the Closing Date and, in addition thereto, the
following conditions:
7.1. All representations and warranties by or on behalf of the
Acquired Fund contained in this Agreement shall be true and correct
in all material respects as of the date hereof and, except as they
may be affected by the transactions contemplated by this Agreement,
as of the Closing Date with the same force and effect as if made on
and as of the Closing Date;
7.2. The Acquired Fund shall have delivered to the Acquiring Fund
a statement of the Acquired Fund's assets and liabilities as of the
Closing Date, certified by the Treasurer or Assistant Treasurer of
the Acquired Fund;
7.3. The Acquired Fund shall have delivered to the Acquiring Fund
on the Closing Date a certificate executed in its name by its
Chairman, President, Vice President, Secretary, Treasurer or Assistant
Treasurer, in form and substance satisfactory to the Acquiring Fund
and dated as of the Closing Date, to the effect that the representations
and warranties of the Acquired Fund made in this Agreement are true
and correct at and as of the Closing Date, except as they may be
affected by the transactions contemplated by this Agreement, and as
to such other matters as the Acquiring Fund shall reasonably request; and
7.4. The Acquiring Fund shall have received on the Closing Date a
favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel to the Acquired
Fund, in a form satisfactory to the Secretary of the Acquiring Fund,
covering the following points:
That (a) the Acquired Fund is a validly existing corporation and in
good standing under the laws of the State of Maryland and has the
corporate power to own all of its properties and assets and to carry
on its business as a registered investment company; (b) the Agreement
has been duly authorized, executed and delivered by the Acquired Fund
and, assuming due authorization, execution and delivery of the
Agreement by the other parties hereto, is a valid and binding
obligation of the Acquired Fund enforceable against the Acquired Fund
in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights a
nd to general equity principles; (c) the execution and delivery of
the Agreement did not, and the consummation of the transactions
contemplated hereby will not, conflict with the Acquired Fund's Articles
of Incorporation or By-Laws or result in a material violation of any
provision of any material agreement (known to such counsel) to which
the Acquired Fund is a party or by which it or its property is bound
or, to the knowledge of such counsel, result in the acceleration of
any obligation or the imposition of any penalty, under any material
agreement, judgment, or decree to which the Acquired Fund is a party
or by which it or its property is bound; (d) to the knowledge of such
counsel, no consent, approval, authorization or order of any court or
governmental authority of the United States or the State of Maryland
is required for the consummation by the Acquired Fund of the
transactions contemplated herein, except such as have been obtained
under the 1933 Act, the 1934 Act and the 1940 Act, and such as may be
required under state securities laws; (e) the Proxy Statement (except
as to financial and statistical data contained therein, as to which no
opinion need be given), as of its date, appeared on its face to be
appropriately responsive in all material respects to the 1934 Act and
the 1940 Act and the rules and regulations thereunder; provided,
however, that such counsel shall be entitled to state that it does
not assume any responsibility for the accuracy, completeness or fairness
of the Proxy Statement; (f) to the knowledge of such counsel, there is
no legal, administrative or governmental proceeding, investigation,
order, decree or judgment of any court or governmental body, only insofar
as they relate to the Acquired Fund or its assets or properties, pending,
threatened or otherwise existing on or before the effective date of
the N-14 Registration Statement or the Closing Date, which is required
to be described in the N-14 Registration Statement or to be filed as
an exhibit to the N-14 Registration Statement which is not described
or filed as required or which materially and adversely affect the
Acquired Fund's business; and (g) the Acquired Fund is registered as
an investment company under the 1940 Act, and, to the knowledge of
such counsel, its registration with the Commission as an investment
company under the 1940 Act is in full force and effect.
With respect to all matters of Maryland law, such counsel shall be
entitled to state that, with the approval of the Acquiring Fund, they
have relied upon the opinion of ▇▇▇▇▇▇▇, Baetjer and ▇▇▇▇▇▇, LLP and
that their opinion is subject to the same assumptions, qualifications
and limitations with respect to such matters as are contained in the
opinion of ▇▇▇▇▇▇▇, Baetjer and ▇▇▇▇▇▇, LLP. Such opinion also shall
include such other matters incident to the transaction contemplated
hereby as the Acquiring Fund may reasonably request.
In this paragraph 7.4, references to the Proxy Statement include and
relate only to the text of such Proxy Statement and not to any exhibits
or attachments thereto or to any documents incorporated by reference
therein.
7.5. The Acquiring Fund shall have received from PricewaterhouseCoopers
LLP a letter addressed to the Acquiring Fund dated as of the effective
date of the N-14 Registration Statement in form and substance satisfactory
to the Acquiring Fund, to the effect that:
(a) they are independent public accountants with respect to the
Acquired Fund within the meaning of the 1933 Act and the applicable
regulations thereunder; and
(b) in their opinion, the financial statements and financial
highlights of the Acquired Fund included or incorporated by reference
in the N-14 Registration Statement and reported on by them comply as
to form in all material aspects with the applicable accounting
requirements of the 1933 Act and the rules and regulations thereunder.
7.6. The Acquired Fund shall have received from PricewaterhouseCoopers
LLP a letter addressed to the Acquired Fund dated as of the effective
date of the N-14 Registration Statement in form and substance
satisfactory to the Acquired Fund, to the effect that:
(a) they are independent public accountants with respect to the
Acquiring Fund within the meaning of the 1933 Act and the applicable
regulations thereunder; and
(b) in their opinion, the financial statements and financial
highlights of the Acquiring Fund included or incorporated by reference
in the N-14 Registration Statement and reported on by them comply as
to form in all material aspects with the applicable accounting
requirements of the 1933 Act and the rules and regulations thereunder.
7.7. The Acquiring Fund and the Acquired Fund shall have received
from PricewaterhouseCoopers LLP a letter addressed to both Funds and
dated as of the effective date of the N 14 Registration Statement in
form and substance satisfactory to each Fund, to the effect that:
on the basis of limited procedures agreed upon by the Acquiring Fund
and the Acquired Fund and described in such letter (but not an
examination in accordance with generally accepted auditing standards),
specified information relating to each Fund appearing in the N-14
Registration Statement and the Proxy Statement has been obtained from
the accounting records of each Fund or from schedules prepared by
officers of each Fund having responsibility for financial and reporting
matters and such information is in agreement with such records,
schedules or computations made therefrom.
7.8. The Acquired Fund shall have delivered to the Acquiring Fund,
pursuant to paragraph 4.1(f), copies of financial statements of the
Acquired Fund as of and for the fiscal year ended August 31, 2002.
7.9. The Acquiring Fund shall have received from PricewaterhouseCoopers
LLP a letter addressed to the Acquiring Fund and dated as of the Closing
Date stating that, as of a date no more than three (3) business days
prior to the Closing Date, PricewaterhouseCoopers LLP performed limited
procedures and that on the basis of those procedures it confirmed the
matters set forth in paragraph 7.6.
7.10. The Board of Directors of the Acquired Fund, including a
majority of the directors who are not "interested persons" of the
Acquired Fund (as defined by the 1940 Act), shall have determined
that this Agreement and the transactions contemplated hereby are in
the best interests of the Acquired Fund and that the interests of
the shareholders in the Acquired Fund would not be diluted as a result
of such transactions, and the Acquired Fund shall have delivered to
the Acquiring Fund at the Closing, a certificate, executed by an officer,
to the effect that the condition described in this subparagraph has
been satisfied.
8. Further Conditions Precedent to Obligations of the Acquiring
Fund and the Acquired Fund
If any of the conditions set forth below do not exist on or before the
Closing Date with respect to the Acquiring Fund, the Acquired Fund shall,
and if any of such conditions do not exist on or before the Closing
Date with respect to the Acquired Fund, the Acquiring Fund shall, at
their respective option, not be required to consummate the transactions
contemplated by this Agreement.
8.1. The Agreement and the transactions contemplated herein shall
have been approved by the requisite vote of the holders of the
outstanding Acquired Fund Shares in accordance with the provisions
of the Acquired Fund's Articles of Incorporation and applicable law
and certified copies of the votes evidencing such approval shall
have been delivered to the Acquiring Fund.
8.2. On the Closing Date no action, suit or other proceeding shall
be pending before any court or governmental agency in which it is
sought to restrain or prohibit, or obtain damages or other relief
in connection with, this Agreement or the transactions contemplated
herein.
8.3. All consents of other parties and all other consents, orders
and permits of federal, state and local regulatory authorities
(including those of the Commission and of state blue sky and
securities authorities, including "no-action" positions of and
exemptive orders from such federal and state authorities) deemed
necessary by the Acquiring Fund or the Acquired Fund to permit
consummation, in all material respects, of the transactions
contemplated hereby shall have been obtained, except where
failure to obtain any such consent, order or permit would not
involve a risk of a material adverse effect on the assets or
properties of the Acquiring Fund or the Acquired Fund, provided
that either party hereto may for itself waive any of such conditions.
8.4. The N-14 Registration Statement and the Acquiring Fund
Registration Statement shall each have become or be effective under
the 1933 Act and no stop orders suspending the effectiveness thereof
shall have been issued and, to the best knowledge of the parties
hereto, no investigation or proceeding for that purpose shall have
been instituted or be pending, threatened or contemplated under the
▇▇▇▇ ▇▇▇.
8.5. The parties shall have received a favorable opinion of ▇▇▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, addressed to, and in form and substance satisfactory
to, the Acquired Fund and the Acquiring Fund, substantially to the
effect that for U.S. federal income tax purposes:
(a) The transfer of all of the Acquired Fund's assets to the
Acquiring Fund in exchange for the Acquiring Fund Shares and the
assumption by the Acquiring Fund of the liabilities of the Acquired
Fund, and the distribution of such Acquiring Fund Shares to Acquired
Fund Shareholders in exchange for their Acquired Fund Shares, will
constitute a "reorganization" within the meaning of Section 368(a)
of the Code, and the Acquiring Fund and the Acquired Fund will each
be a "party to a reorganization" within the meaning of Section 368(b)
of the Code; (b) no gain or loss will be recognized by the Acquiring
Fund on the receipt of the assets of the Acquired Fund solely in
exchange for the Acquiring Fund Shares and the assumption by the
Acquiring Fund of the liabilities of the Acquired Fund; (c) except
for gain or loss regularly attributable to the termination of the
Acquired Fund's taxable year, no gain or loss will be recognized by
the Acquired Fund upon the transfer of the Acquired Fund's assets to
the Acquiring Fund in exchange for the Acquiring Fund Shares and the
assumption by the Acquiring Fund of the liabilities of the Acquired
Fund or upon the distribution of the Acquiring Fund Shares to the
Acquired Fund Shareholders in exchange for their Acquired Fund Shares;
(d) no gain or loss will be recognized by the Acquired Fund Shareholders
upon the exchange of their Acquired Fund Shares for the Acquiring Fund
Shares; (e) the aggregate tax basis of the Acquiring Fund Shares
received by each of the Acquired Fund Shareholders pursuant to the
Reorganization will be the same as the aggregate tax basis of the
Acquired Fund Shares held by such shareholder immediately prior to
the Reorganization, and the holding period of the Acquiring Fund Shares
to be received by each Acquired Fund Shareholder will include the
period during which the Acquired Fund Shares exchanged therefor were
held by such shareholder (provided that such Acquired Fund Shares were
held as capital assets on the date of the Reorganization); and (f)
except for assets which may be revalued as a consequence of a termination
of the Acquired Fund's taxable year, the tax basis of the Acquired
Fund's assets acquired by the Acquiring Fund will be the same as the tax
basis of such assets to the Acquired Fund immediately prior to the
Reorganization and the holding period of the assets of the Acquired
Fund in the hands of the Acquiring Fund will include the period during
which those assets were held by the Acquired Fund.
Notwithstanding anything herein to the contrary, neither the Acquiring
Fund nor the Acquired Fund may waive the conditions set forth in this
paragraph 8.5.
9. Brokerage Fees and Expenses; Other Agreements
9.1. The Acquiring Fund represents and warrants to the Acquired
Fund, and the Acquired Fund represents and warrants to the Acquiring
Fund, that there are no brokers or finders or other entities to
receive any payments in connection with the transactions provided for
herein.
9.2. CSAM or its affiliates agrees to bear the reasonable expenses
incurred in connection with the transactions contemplated by this
Agreement, whether or not consummated (excluding extraordinary
expenses such as litigation expenses, damages and other expenses
not normally associated with transactions of the type contemplated
by this Agreement). These expenses consist of: (i) expenses
associated with preparing this Agreement, the N-14 Registration
Statement and expenses of the shareholder meetings insofar as they
relate to approval of this Agreement and the transactions
contemplated thereby; (ii) expenses associated with preparing and
filing the N-14 Registration Statement covering the Acquiring Fund
Shares to be issued in the Reorganization insofar as they relate
to approval of this Agreement and the transactions contemplated
thereby; (iii) registration or qualification fees and expenses of
preparing and filing such forms, if any, necessary under applicable
state securities laws to qualify the Acquiring Fund Shares to be
issued in connection with the Reorganization; (iv) postage; printing;
accounting fees; and legal fees incurred by the Acquiring Fund and
by the Acquired Fund in connection with the transactions contemplated
by this Agreement; (v) solicitation costs incurred in connection
with the shareholders meeting referred to in clause (i) above and
paragraph 5.2 hereof insofar as they relate to approval of this
Agreement and the transactions contemplated thereby and (vi) any other
reasonable Reorganization expenses.
9.3. Any other provision of this Agreement to the contrary
notwithstanding, any liability of either Fund under this Agreement,
or in connection with the transactions contemplated herein with
respect to such Fund, shall be discharged only out of the assets
of such Fund.
10. Entire Agreement; Survival of Warranties
10.1. The Acquiring Fund and the Acquired Fund agree that neither
party has made any representation, warranty or covenant not set forth
herein and that this Agreement constitutes the entire agreement among
the parties.
10.2. The representations, warranties and covenants contained in
this Agreement or in any document delivered pursuant hereto or in
connection herewith shall survive the consummation of the transactions
contemplated hereunder.
11. Termination
11.1. This Agreement may be terminated at any time at or prior to
the Closing Date by: (1) either the Acquired Fund or the Acquiring
Fund by written notice to the other; (2) the Acquired Fund in the
event the Acquiring Fund shall, or the Acquiring Fund, in the event
the Acquired Fund shall, materially breach any representation,
warranty or agreement contained herein to be performed at or prior
to the Closing Date; or (3) the Acquired Fund or the Acquiring Fund
in the event a condition herein expressed to be precedent to the
obligations of the terminating party or parties has not been met
and it reasonably appears that it will not or cannot be met within
a reasonable time.
11.2. In the event of any such termination, there shall be no
liability for damages on the part of either the Acquiring Fund, the
Credit Suisse Institutional Fund, Inc. or the Acquired Fund, or
their respective Directors or officers, to the other party or parties.
12. Amendments
This Agreement may be amended, modified or supplemented in writing
in such manner as may be mutually agreed upon by the authorized
officers of the Acquired Fund and the Acquiring Fund; provided,
however, that following the meeting of the Acquired Fund Shareholders
called by the Acquired Fund pursuant to paragraph 5.2 of this
Agreement no such amendment may have the effect of changing the
provisions for determining the number of the Acquiring Fund Shares
to be issued to the Acquired Fund's Shareholders under this Agreement
to the detriment of such shareholders without their further approval.
13. Notices
13.1. Any notice, report, statement or demand required or permitted
by any provisions of this Agreement shall be in writing and shall
be given by prepaid telegraph, telecopy or certified mail addressed
to the Acquiring Fund at:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇, Esq.
or to the Acquired Fund at:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇, Esq.
14. Headings; Counterparts; Governing Law; Assignment;
Limitation of Liability
14.1. The article and paragraph headings contained in this Agreement
are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
14.2. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original.
14.3. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
14.4. This Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns, but no
assignment or transfer hereof or of any rights or obligations
hereunder shall be made by any party without the written consent
of the other party. Except as provided in Section 5.7, nothing
herein expressed or implied is intended or shall be construed to
confer upon or give any person, firm or corporation, other than
the parties hereto and their respective successors and assigns,
any rights or remedies under or by reason of this Agreement.
14.5. Notice is hereby given that this Agreement is entered into
on behalf of the Acquiring Fund by an officer of the Credit Suisse
Institutional Fund, Inc., and on behalf of the Acquired Fund by an
officer of the Acquired Fund, in each case in such officer's capacity
as an officer and not individually. It is understood and expressly
stipulated that none of the Directors, officers or shareholders of
the Credit Suisse Institutional Fund, Inc. or the Acquired Fund are
personally liable hereunder. All persons dealing with the Acquiring
Fund should look solely to the property of the Acquiring Fund for
the enforcement of any claims against the Acquiring Fund.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its Chairman, President, Vice President
or Managing Director and attested to by its Vice President,
Secretary or Assistant Secretary.
CREDIT SUISSE INSTITUTIONAL FUND, INC.
For and on Behalf of its INTERNATIONAL FOCUS PORTFOLIO
By:/s/▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Secretary
Attestation By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
CREDIT SUISSE INSTITUTIONAL INTERNATIONAL FUND, INC.
By: /s/▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Secretary
Attestation By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
Solely with respect to paragraphs 4.3, 5.9 and 9.2 hereof:
CREDIT SUISSE ASSET MANAGEMENT, LLC
By: /s/▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
Attestation By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
