EXHIBIT INDEX
EXHIBIT A:
Attachment to item 77M: Mergers
EXHIBIT B:
Attachment to item 77Q1: Exhibits
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EXHIBIT A:
Warburg, Pincus Emerging Markets Fund, Inc.
Sub-Item 77M: Merger
(a) Warburg, Pincus Emerging Markets II Fund, Inc. ("the
Acquired Fund")
(b) On February 11, 2000, all or substantially all of the
assets of the Acquired Fund were transferred to Warburg, Pincus
Emerging Markets Fund, Inc. (the "Acquiring Fund") in exchange
for shares of common stock of the Acquiring Fund and the
assumption by the Acquiring Fund of the liabilities of the
Acquired Fund and distribution of the Acquiring Fund shares to
the Acquired Fund shareholders (the "Reorganization"). The Board
of Directors of the Acquiring Fund approved the Reorganization on
October 26, 1999 and February 3, 2000. The Board of Directors of
the Acquired Fund approved the Reorganization on October 26, 1999
and February 3, 2000 and the shareholders of the Acquired Fund
approved the Reorganization on February 10, 2000. Articles of
Dissolution were filed by the Acquired Fund with the Maryland
State Department of Assessments and Taxation on April 20, 2000.
A Form N-8F was filed with the Securities and Exchange Commission
by the Acquired Fund on April 18, 2000.
EXHIBIT B:
Sub-Item 77Q1: Exhibits
(a) Not applicable
(b) Not applicable
(c) Not applicable
(d) Not applicable
(e) Not applicable
(f) Not applicable
(g)(i) Agreement and Plan of Reorganization dated as of
December 1, 1999
(ii) Agreement to amend the Agreement and Plan of
Reorganization dated as of January 27, 2000
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is
made as of this first day of December, 1999, between and among
Warburg, Pincus Emerging Markets Fund, Inc., a Maryland
corporation (the "Acquiring Fund"), and Warburg, Pincus Emerging
Markets II Fund, Inc., a Maryland corporation (the "Fund" and,
together with the Acquiring Fund, the "Funds"), and, solely for
purposes of Section 9.2 hereof, Credit Suisse Asset Management,
LLC, a limited liability company organized under the laws of the
State of Delaware ("CSAM").
This Agreement is intended to be and is adopted as a plan of
reorganization within the meaning of Section 368(a) of the United
States Internal Revenue Code of 1986, as amended (the "Code").
The reorganization of the Fund (collectively, the
"Reorganization") will consist of the transfer of substantially
all of the assets of the Fund in exchange solely for shares of the
applicable class or classes of common stock (collectively, the
"Shares") of the Acquiring Fund, and the assumption by the
Acquiring Fund of liabilities of the Fund, and the distribution,
on or after the Closing Date hereinafter referred to, of Shares of
the Acquiring Fund ("Acquiring Fund Shares") to the shareholders
of the Fund in liquidation of the Fund as provided herein, all
upon the terms and conditions hereinafter set forth in this
Agreement.
WHEREAS, the Board of Directors of the Fund has determined that
the exchange of all of the assets of the Fund for Acquiring Fund
Shares and the assumption of the liabilities of the Fund by the
Acquiring Fund is in the best interests of the Fund and that the
interests of the existing shareholders of the Fund would not be
diluted as a result of this transaction; and
WHEREAS, the Board of Directors of the Acquiring Fund has
determined that the exchange of all of the assets of the 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:
Transfer of Assets of the Fund in Exchange for Acquiring Fund
Shares and Assumption of the Fund's Liabilities and Liquidation of
the Fund
Subject to the terms and conditions herein set forth and on
the basis of the representations and warranties contained herein,
the 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 Fund the number of
Acquiring Fund Shares, including fractional Acquiring Fund Shares,
of each class of the Fund determined by dividing the value of the
Fund's net assets attributable to each such class of shares,
computed in the manner and as of the time and date set forth in
paragraph 2.1, by the net asset value of one Acquiring Fund Share
of the same class; and (ii) to assume the liabilities of the Fund,
as set forth in paragraph 1.3. Such transactions shall take place
at the closing provided for in paragraph 3.1 (the "Closing").
(a) The assets of the 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 Fund and any deferred or prepaid expenses
shown as an asset on the books of the Fund on the closing date
provided in paragraph 3.1 (the "Closing Date").
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The Fund has provided the Acquiring Fund with a list of all
its assets as of the date of execution of this Agreement. The 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 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 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 Fund holds any investments
which the Acquiring Fund may not hold, the Fund will dispose of
such securities prior to the Closing Date. In addition, if it is
determined that the portfolios of the Fund and the Acquiring Fund,
when aggregated, would contain investments exceeding certain
percentage limitations imposed upon the Acquiring Fund with
respect to such investments, the Fund, if requested by the
Acquiring Fund, will dispose of and/or reinvest a sufficient
amount of such investments as may be necessary to avoid violating
such limitations as of the Closing Date.
The Fund will endeavor to discharge all its known liabilities
and obligations 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 an unaudited
statement of assets and liabilities of the Fund prepared by PFPC,
Inc., each Fund's accounting agent ("PFPC"), 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 Fund specifically arising from or relating to the
operations and/or transactions of the 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
5.10 hereof.
As provided in paragraph 3.4, as soon on or after the Closing
Date as is conveniently practicable (the "Liquidation Date"), the
Fund will liquidate and distribute pro rata to the Fund's
shareholders of record determined as of the close of business on
the Closing Date (the "Fund Shareholders") the Acquiring Fund
Shares it receives pursuant to paragraph 1.1. Such liquidation
and distribution will be accomplished by the transfer of the
Acquiring Fund Shares then credited to the account of the Fund on
the books of the Acquiring Fund to open accounts on the share
records of the Acquiring Fund in the name of the Fund's
shareholders representing the respective pro rata number of the
Acquiring Fund Shares of the particular class due such
shareholders. All issued and outstanding shares of the Fund will
simultaneously be canceled on the books of the Fund, although
share certificates representing interests in the Fund will
represent a number of Acquiring Fund Shares after the Closing Date
as determined in accordance with Section 2.3. The Acquiring Fund
shall not issue certificates representing the Acquiring Fund
Shares in connection with such exchange.
Ownership of Acquiring Fund Shares will be shown on the books
of the Acquiring Fund's transfer agent. Shares of the Acquiring
Fund will be issued in the manner described in the Acquiring
Fund's current prospectuses and statement of additional
information.
Any transfer taxes payable upon issuance of the Acquiring
Fund Shares in a name other than the registered holder of the Fund
Shares on the books of the 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.
Any reporting responsibility of the Fund is and shall remain
the responsibility of the Fund up to and including the applicable
Closing Date and such later dates on which the Fund is terminated.
Valuation
The value of the 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
Fund's then current prospectuses or statements of additional
information.
The number of Shares of each class of the Acquiring Fund to
be issued (including fractional shares, if any) in exchange for
the Fund's net assets shall be determined by dividing the value of
the net assets of the Fund attributable to the respective classes
of Shares determined using the same valuation procedures referred
to in paragraph 2.1 by the net asset value per Share of such class
of the Acquiring Fund computed as of the close of regular trading
on the NYSE on the Closing Date, using the valuation procedures
set forth in the Acquiring Fund's then current prospectuses or
statement of additional information.
All computations of value shall be made by PFPC in accordance
with its regular practice as pricing agent for the Fund and the
Acquiring Fund.
Closing and Closing Date
The Closing Date for the Reorganization shall be January 28,
2000, 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 4:00 p.m., at the offices of Willkie
Farr & Gallagher or at such other time and/or place as the parties
may agree.
The custodian for the Fund (the "Custodian") shall deliver at
the Closing a certificate of an authorized officer stating that:
(a) the 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.
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 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 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.
The Fund shall deliver at the Closing a list of the names and
addresses of the Fund's shareholders and the number and class of
outstanding Shares owned by each such shareholder immediately
prior to the Closing or provide evidence that such information has
been provided to the Acquiring Fund's transfer agent. The
Acquiring Fund shall issue and deliver a confirmation evidencing
the Acquiring Fund Shares to be credited to the Fund's account on
the Closing Date to the Secretary of the Fund or provide evidence
satisfactory to the Fund that such Acquiring Fund Shares have been
credited to the 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.
Representations and Warranties
The Fund represents and warrants to the Acquiring Fund as
follows:
The Fund is a Maryland corporation duly organized, validly
existing and in good standing under the laws of the State of
Maryland;
The 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;
The Fund is not, and the execution, delivery and performance
of this Agreement will not result, in a violation of its Charter
or By-Laws or any material agreement, indenture, instrument,
contract, lease or other undertaking to which the Fund is a party
or by which the Fund or its property is bound or affected;
There are no contracts or other commitments (other than this
Agreement) of the Fund which will be terminated with liability to
the Fund prior to the Closing Date;
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 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 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 Fund or its
ability to consummate the transactions herein contemplated;
The Statements of Assets and Liabilities, including the
Investment Portfolio, Operations, and Changes in Net Assets, and
the Financial Highlights of the Fund at and for each of the fiscal
years ended August 31 in the period beginning with commencement of
the Fund and ending August 31, 1999 have been audited by
PricewaterhouseCoopers LLP, certified public 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 Fund as of such dates, and there are no known
contingent liabilities of the Fund as of such dates not disclosed
therein;
Since August 31, 1999, there has not been any material
adverse change in the Fund's financial condition, assets,
liabilities or business other than changes occurring in the
ordinary course of business, or any incurrence by the Fund of
indebtedness maturing more than one year from the date that such
indebtedness was incurred, except as otherwise disclosed to and
accepted in writing by the Acquiring Fund. For the purposes of
this subparagraph (g), a decline in net asset value per share or
the total assets of the Fund in the ordinary course of business
shall not constitute a material adverse change;
At the date hereof and the Closing Date, all federal and
other tax returns and reports of the 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 Fund's knowledge, no such return is currently under audit and
no assessment has been asserted with respect to such returns;
At the date hereof and the Closing Date, for each taxable
year of its operation, the Fund shall have met the requirements of
Subchapter M of the Code for qualification and treatment as a
regulated investment company; all of the Fund's issued and
outstanding shares have been offered and sold in compliance in all
material respects with applicable federal and state securities
laws;
All issued and outstanding shares of each class of the Fund
are, and at the Closing Date will be, duly and validly issued and
outstanding, fully paid and non-assessable by the Fund. All of
the issued and outstanding shares of the Fund will, at the time of
Closing, be held by the persons and the amounts set forth in the
records of the transfer agent as provided in paragraph 3.4. The
Fund does not have outstanding any options, warrants or other
rights to subscribe for or purchase any of the Fund's shares, nor
is there outstanding any security convertible into any of the
Fund's shares;
At the Closing Date, the Fund will have good and marketable
title to its 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 Fund
may have acquired in the ordinary course of business and which the
Acquiring Fund has received notice and necessary documentation at
or prior to the Closing;
The execution, delivery and performance of this Agreement has
been duly authorized by all necessary actions on the part of the
Fund's Board of Directors, and subject to the approval of the
Fund's shareholders, this Agreement will constitute a valid and
binding obligation of the 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;
The information to be furnished by the Fund for use in
applications for orders, registration statements or proxy
materials or for use in any other document filed or to be filed
with any federal, state or local regulatory authority (including
the National Association of Securities Dealers, Inc.), which may
be necessary in connection with the transactions contemplated
hereby, shall be accurate and complete in all material respects
and shall comply in all material respects with federal securities
and other laws and regulations applicable thereto;
The current prospectus and statements of additional
information of the 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
Insofar as the following relate to the 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 Fund (the "Proxy Statement") and
the prospectuses of the Acquiring Fund with respect to the
transactions contemplated by this Agreement, and any supplement or
amendment thereto, and the documents contained or incorporated
therein by reference (the "N-14 Registration Statement"), on the
effective date of the N-14 Registration Statement, at the time of
any shareholders' meeting referred to herein, on the Valuation
Date and on the Closing Date: (i) shall comply in all material
respects with the provisions of the 1933 Act, the Securities
Exchange Act of 1934 (the "1934 Act") and the 1940 Act and the
rules and regulations under those Acts, and (ii) shall not contain
any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that the
representations and warranties in this section shall not apply to
statements in or omissions from the Proxy Statement and the N-14
Registration Statement made in reliance upon and in conformity
with information that was furnished or should have been furnished
by the Acquiring Fund for use therein.
The Acquiring Fund represents and warrants to the Fund as
follows:
The Acquiring Fund is a Maryland corporation, duly organized,
validly existing and in good standing under the laws of the State
of Maryland;
The Acquiring Fund is a registered investment company
classified as a management company of the open-end type and its
registration with the Commission as an investment company under
the 1940 Act is in full force and effect;
The current prospectuses and statement of additional
information filed as part of the Acquiring Fund registration
statement on Form N-1A (the "Acquiring Fund Registration
Statement") conform in all material respects to the applicable
requirements of the 1933 Act and the 1940 Act and the rules and
regulations of the Commission under those Acts and do not include
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not materially misleading;
At the Closing Date, the Acquiring Fund will have good and
marketable title to its assets;
The Acquiring Fund is not, and the execution, delivery and
performance of this Agreement will not result in, a violation of
its Charter or By-Laws or any material agreement, indenture,
instrument, contract, lease or other undertaking to which the
Acquiring Fund is a party or by which the Acquiring Fund or its
property is bound;
Except as previously disclosed in writing to and accepted by
the 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;
Since October 31, 1998, 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 Fund. For purposes of
this subsection (g), a decline in net asset value per share of the
Acquiring Fund due to declines in market values of securities in
the Acquiring Fund's portfolio, the discharge of Acquiring Fund
liabilities, or the redemption of Acquiring Fund shares by
Acquiring Fund Shareholders shall not constitute a material
adverse change;
At the Closing Date, all federal and other tax returns and
reports 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;
At the date hereof and the Closing Date, for each taxable
year of its operation, the Acquiring Fund shall have 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;
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, with no
personal liability attaching to the ownership thereof. 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;
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;
The Acquiring Fund Shares to be issued and delivered to the
Fund, for the account of the Fund's shareholders, pursuant to the
terms of this Agreement, will at the Closing Date have been duly
authorized and when so issued and delivered, will be duly and
validly issued Acquiring Fund Shares, and will be fully paid and
non-assessable with no personal liability attaching to the
ownership thereof;
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 Fund for use therein; and
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.
Covenants of the Fund and the Acquiring Fund
The Acquiring Fund and the Fund will operate its business 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.
The Fund will call a meeting of its shareholders to consider
and act upon this Agreement and to take all other actions
necessary to obtain approval of the transactions contemplated
herein.
The 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.
The Fund will assist the Acquiring Fund in obtaining such
information as the Acquiring Fund reasonably requests concerning
the beneficial ownership of the Fund's Shares.
Subject to the provisions of this Agreement, the Acquiring
Fund and the Fund each will 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.
The 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 Fund's shareholders
to consider approval of this Agreement and the transactions
contemplated herein.
The Fund will provide the Acquiring Fund with information
reasonably necessary for the preparation of the Acquiring Fund
Registration Statement.
As promptly as practicable, but in any case within thirty
days of the Closing Date, the Fund shall furnish the Acquiring
Fund with a statement containing information required for purposes
of complying with Rule 24f-2 under the 1940 Act. A notice
pursuant to Rule 24f-2 will be filed by the Acquiring Fund
offsetting redemptions by the Fund during the fiscal year ending
on or after the applicable Closing Date against sales of Acquiring
Fund Shares and the Fund agrees that it will not net redemptions
during such period by the Fund against sales of its shares.
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
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 Fund with respect
to matters specifically relating to the Fund, provided that such
indemnification and advancement of expenses shall be permitted to
the fullest extent that is available under the Maryland General
Corporation law and other applicable law. This paragraph 5.9
shall not protect any such Indemnified Person against any
liability to the Fund, the Acquiring Fund or their shareholders to
which he would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or from reckless
disregard of the duties involved in the conduct of his office. An
Indemnified Person seeking indemnification shall be entitled to
advances from the Acquiring Fund for payment of the reasonable
expenses incurred by him in connection with the matter as to which
he is seeking indemnification in the manner and to the fullest
extent permissible under the Maryland General Corporation law and
other applicable law. Such Indemnified Person shall provide to
the Acquiring Fund a written affirmation of his good faith belief
that the standard of conduct necessary for indemnification by the
Acquiring Fund has been met and a written undertaking to repay any
advance if it should ultimately be determined that the standard of
conduct has not been met. In addition, at least one of the
following additional conditions shall be met: (a) the Indemnified
Person shall provide security in form and amount acceptable to the
Acquiring Fund for its undertaking; (b) the Acquiring Fund is
insured against losses arising by reason of the advance; or (c)
either a majority of a quorum of disinterested non-party Directors
of the Acquiring Fund (collectively, the "Disinterested
Directors"), or independent legal counsel experienced in mutual
fund matters, selected by the Indemnified Person, in a written
opinion, shall have determined, based on a review of facts readily
available to the Acquiring Fund at the time the advance is
proposed to be made, that there is reason to believe that the
Director will ultimately be found to be entitled to
indemnification.
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 Fund or (ii)
use a significant portion of the Fund's historic business assets
in a business, and (b) will not sell or otherwise dispose of any
of the assets of the 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.
Conditions Precedent to Obligations of the Fund
The obligations of the 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:
All representations and warranties of the Acquiring Fund
contained in this Agreement shall be true and correct in all
material respects as of the date hereof and, except as they may be
affected by the actions contemplated by this Agreement, as of the
Closing Date with the same force and effect as if made on and as
of the Closing Date;
The Acquiring Fund shall have delivered to the Fund a
certificate executed in its name by its President or Vice
President and its Secretary, Treasurer or Assistant Treasurer, in
a form reasonably satisfactory to the 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 Fund shall reasonably request;
The Fund shall have received a written agreement from (a)
CSAM to waive a portion of the management fee charged to the
Acquiring Fund to the extent necessary for the net management fee
paid by the Acquiring Fund for the two-year period beginning on
the Closing Date to be no higher than the management fee paid by
the Fund as of the Closing Date, (b) Credit Suisse Asset
Management Securities, Inc. to waive a portion of its co-
administration fee charged to the Acquiring Fund to the extent
necessary for the net co-administration fee paid by the Acquiring
Fund for the two-year period beginning on the Closing Date to be
no higher than the co-administration fee paid by the Fund as of
the Closing Date and (c) CSAM to maintain the net expense ratio of
the Acquiring Fund for the two-year period beginning on the
Closing Date at a level no higher than that of the Fund as of the
Closing Date. These expense ratios will be in effect except for
increases in expense ratios due to redemptions of shares outside
of the ordinary course of business; and
The Fund shall have received on the Closing Date a favorable
opinion from Willkie Farr & Gallagher, counsel to the Acquiring
Fund, dated as of the Closing Date, in a form reasonably
satisfactory to the Fund, covering the following points:
That (a) the Acquiring Fund is a validly existing corporation and
in good standing under the laws of the State of Maryland, has the
corporate power to own all of its properties and assets and to
carry on its business as a registered investment company; (b) the
Agreement has been duly authorized, executed and delivered by the
Acquiring Fund and, assuming due authorization, execution and
delivery of the Agreement by the other parties thereto, is a valid
and binding obligation of the Acquiring Fund enforceable against
the Acquiring Fund in accordance with its terms, subject to the
effect of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and to general equity principles; (c)
the Acquiring Fund Shares to be issued to the Fund's shareholders
as provided by this Agreement are duly authorized and upon such
delivery will be validly issued and outstanding and are fully paid
and nonassessable with no personal liability attaching to
ownership thereof, 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, result in a violation of the Acquiring Fund's Charter or By-
Laws or in a material violation of any provision of any agreement
(known to such counsel) to which the Acquiring Fund is a party or
by which it or its property is bound or, to the knowledge of such
counsel, result in the acceleration of any obligation or the
imposition of any penalty, under any agreement, judgment, or
decree to which the Acquiring Fund is a party or by which it or
its property is bound; (e) to the knowledge of such counsel, no
consent, approval, authorization or order of any court or
governmental authority of the United States or 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) such counsel does not know of any legal,
administrative or governmental proceedings, 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 exhibits to the N-14 Registration
Statement which are not described and filed as required; (h) the
Acquiring Fund is registered as an investment company under the
1940 Act and its registration with the Commission as an investment
company under the 1940 Act is in full force and effect; (i) the
Proxy Statement and the Acquiring Fund Registration Statement
(except as to financial and statistical data contained therein, as
to which no opinion need be given) comply as to form in all
material respects with the requirements of the 1933 Act, the 1934
Act and the 1940 Act and the rules and regulations thereunder; and
(j) the Acquiring Fund Registration Statement is effective under
the 1933 Act and the 1940 Act and no stop-order suspending its
effectiveness or order pursuant to section 8(e) of the 1940 Act
has been issued.
In addition, such counsel also shall state that they have
participated in conferences with officers and other
representatives of the Acquiring Fund at which the contents of the
Proxy Statement, the Acquiring Fund Registration Statement and
related matters were discussed and, although they are not passing
upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Proxy
Statement and the Acquiring Fund Registration Statement (except to
the extent indicated in paragraph (i) of their above opinion), on
the basis of the foregoing (relying as to materiality to a large
extent upon the opinions and certificates of officers and other
representatives of the Acquiring Fund), they do not believe that
the Proxy Statement and the Acquiring Fund Registration Statement
as of their respective dates, as of the date of the Fund
shareholders' meeting, and as of the Closing Date, contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein regarding the Acquiring Fund or
necessary to make the statements therein regarding the Acquiring
Fund, in the light of the circumstances under which they were
made, not misleading.
Such opinion may state that such counsel does not express any
opinion or belief as to the financial statements or other
financial data, or as to the information relating to the Fund,
contained in the Proxy Statement, N-14 Registration Statement or
Acquiring Fund Registration Statement, and that such opinion is
solely for the benefit of the Fund, its Directors and its
officers. Such counsel may rely as to matters governed by the
laws of the state of Maryland on an opinion of Maryland counsel
and/or certificates of officers or directors of the Acquiring
Fund. Such opinion also shall include such other matters incident
to the transaction contemplated hereby, as the Fund may reasonably
request.
In this paragraph 6.4, 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.
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 Fund of all the obligations to be performed by
it hereunder on or before the Closing Date and, in addition
thereto, the following conditions:
All representations and warranties of the 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;
The Fund shall have delivered to the Acquiring Fund a
statement of the Fund's assets and liabilities as of the Closing
Date, certified by the Treasurer or Assistant Treasurer of the
Fund;
The Fund shall have delivered to the Acquiring Fund on the
Closing Date a certificate executed in its name by its President
or Vice President and its 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 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
The Acquiring Fund shall have received on the Closing Date a
favorable opinion of Willkie Farr & Gallagher, counsel to the
Fund, in a form satisfactory to the Secretary of the Acquiring
Fund, covering the following points:
That (a) the Fund is a validly existing corporation and in good
standing under the laws of the State of Maryland and has the
statutory power to own all of its properties and assets and to
carry on its business as a registered investment company; (b) the
Agreement has been duly authorized, executed and delivered by the
Fund and, assuming due authorization, execution and delivery of
the Agreement by the other parties hereto, is a valid and binding
obligation of the Fund enforceable against the Fund 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 generally and to
general equity principles; (c) the execution and delivery of the
Agreement did not, and the consummation of the transactions
contemplated hereby will not, result in a violation of the Fund's
Charter or By-Laws or a material violation of any provision of any
agreement (known to such counsel) to which the Fund is a party or
by which it or its properties are bound or, to the knowledge of
such counsel, result in the acceleration of any obligation or the
imposition of any penalty, under any agreement, judgment or decree
to which the Fund is a party or by which it or its properties are
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 state of Maryland is required for the
consummation by the 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) complies as to form in all material respects with
the requirements of the 1934 Act and the 1940 Act and the rules
and regulations thereunder; (f) such counsel does not know of any
legal, administrative or governmental proceedings, investigation,
order, decree or judgment of any court or governmental body, only
insofar as they relate to the 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 exhibits to the N-14 Registration
Statement which are not described and filed as required or which
materially and adversely affect the Fund's business; and (g) the
Fund is registered as an investment company under the 1940 Act and
its registration with the Commission as an investment company
under the 1940 Act is in full force and effect.
Such counsel also shall state that they have participated in
conferences with officers and other representatives of the Fund at
which the contents of the Proxy Statement and related matters were
discussed and, although they are not passing upon and do not
assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Proxy Statement
(except to the extent indicated in paragraph (e) of their above
opinion), on the basis of the foregoing (relying as to materiality
to a large extent upon the opinions and certificates of officers
and other representatives of the Fund), they do not believe that
the Proxy Statement as of its date, as of the date of the Fund's
shareholder meeting, and as of the Closing Date, contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein regarding the Fund or necessary
in the light of the circumstances under which they were made, to
make the statements therein regarding the Fund not misleading.
Such opinion may state that such counsel does not express any
opinion or belief as to the financial statements or other
financial data, or as to the information relating to the Acquiring
Fund, contained in the Proxy Statement or N-14 Registration
Statement, and that such opinion is solely for the benefit of the
Acquiring Fund and its directors and officers. 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.
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:
they are independent public accountants with respect to the
Fund within the meaning of the 1933 Act and the applicable
regulations thereunder;
in their opinion, the financial statements and financial
highlights of the 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; and
on the basis of limited procedures agreed upon by the
Acquiring Fund and the Fund and described in such letter (but not
an examination in accordance with generally accepted auditing
standards), specified information relating to the Fund appearing
in the N-14 Registration Statement and the Proxy Statement has
been obtained from the accounting records of such Fund or from
schedules prepared by officers of the Fund having responsibility
for financial and reporting matters and such information is in
agreement with such records, schedules or computations made
therefrom.
The Fund shall have delivered to the Acquiring Fund, pursuant
to paragraph 4.1(f), copies of financial statements of the Fund as
of and for the fiscal year ended August 31, 1999.
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 7.5.
The Board of Directors of the Fund, including a majority of
the directors who are not "interested persons" of the 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 Fund and that the interests of the shareholders
in the Fund would not be diluted as a result of such transactions,
and the 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.
Further Conditions Precedent to Obligations of the Acquiring
Fund and the 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 Fund
shall, and if any of such conditions do not exist on or before the
Closing Date with respect to the Fund, the Acquiring Fund shall,
at their respective option, not be required to consummate the
transactions contemplated by this Agreement.
The Agreement and the transactions contemplated herein shall
have been approved by the requisite vote of the holders of the
outstanding Shares of the Fund in accordance with the provisions
of the Fund's Charter and applicable law and certified copies of
the votes evidencing such approval shall have been delivered to
the Acquiring Fund.
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.
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 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 Fund, provided that either party hereto
may for itself waive any of such conditions.
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 1933 Act.
The parties shall have received a favorable opinion of
Willkie Farr & Gallagher, addressed to, and in form and substance
satisfactory to, the Fund and the Acquiring Fund, substantially to
the effect that for federal income tax purposes:
The transfer of all or substantially all of the Fund's assets
in exchange for the Acquiring Fund Shares and the assumption by
the Acquiring Fund of liabilities of the Fund, and the
distribution of such Acquiring Fund Shares to shareholders of the
Fund in exchange for their shares of the Fund, will constitute a
"reorganization" within the meaning of Section 368(a) of the Code,
and the Acquiring Fund and the 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 Fund solely in exchange for the
Acquiring Fund Shares and the assumption by the Acquiring Fund of
liabilities of the Fund; (c) no gain or loss will be recognized by
the Fund upon the transfer of the Fund's assets to the Acquiring
Fund in exchange for the Acquiring Fund Shares and the assumption
by the Acquiring Fund of liabilities of the Fund or upon the
distribution of the Acquiring Fund Shares to the Fund's
shareholders in exchange for their shares of the Fund; (d) no gain
or loss will be recognized by shareholders of the Fund upon the
exchange of their Fund shares for the Acquiring Fund Shares or
upon the assumption by the Acquiring Fund of liabilities of the
Fund; (e) the aggregate tax basis for the Acquiring Fund Shares
received by each of the Fund's shareholders pursuant to the
Reorganization will be the same as the aggregate tax basis of the
Fund Shares held by such shareholder immediately prior to the
Reorganization, and the holding period of the Acquiring Fund
Shares to be received by each Fund shareholder will include the
period during which the Fund Shares exchanged therefor were held
by such shareholder (provided that the Fund Shares were held as
capital assets on the date of the Reorganization); and (f) the tax
basis of the Fund's assets acquired by the Acquiring Fund will be
the same as the tax basis of such assets to the Fund immediately
prior to the Reorganization, and the holding period of the assets
of the Fund in the hands of the Acquiring Fund will include the
period during which those assets were held by the Fund.
Notwithstanding anything herein to the contrary, neither the
Acquiring Fund nor the Fund may waive the conditions set forth in
this paragraph 8.5.
Brokerage Fees and Expenses; Other Agreements
The Acquiring Fund represents and warrants to the Fund, and
the 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.
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; (ii) preparing
and filing the N-14 Registration Statement covering the Acquiring
Fund Shares to be issued in the Reorganization; (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 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 and (vi) any other reasonable Reorganization expenses.
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.
Entire Agreement; Survival of Warranties
The Acquiring Fund and the 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.
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.
Termination
This Agreement may be terminated at any time at or prior to
the Closing Date by: (1) mutual agreement of the Fund and the
Acquiring Fund; (2) the Fund in the event the Acquiring Fund
shall, or the Acquiring Fund, in the event the Fund shall,
materially breach any representation, warranty or agreement
contained herein to be performed at or prior to the Closing Date;
or (3) the 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.
In the event of any such termination, there shall be no
liability for damages on the part of either the Acquiring Fund or
the Fund, or their respective Directors or officers, to the other
party or parties.
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 Fund and the Acquiring Fund; provided, however,
that following the meeting of the Fund's shareholders called by
the 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 Fund's Shareholders under this Agreement to the detriment
of such shareholders without their further approval.
Notices
Any notice, report, statement or demand required or permitted
by any provisions of this Agreement shall be in writing and shall
be given by prepaid telegraph, telecopy or certified mail
addressed to the Fund at:
466 Lexington Avenue
New York, NY 10017
Attention: Hal Liebes, Esq.
with a copy to:
Rose F. DiMartino, Esq.
Willkie Farr & Gallagher
787 Seventh Avenue
New York, NY 10019-6099
or to the Acquiring Fund at:
466 Lexington Avenue
New York, NY 10017
Attention: Hal Liebes, Esq.
with a copy to:
Rose F. DiMartino, Esq.
Willkie Farr & Gallagher
787 Seventh Avenue
New York, NY 10019-6099
Headings; Counterparts; Governing Law; Assignment; Limitation
of Liability
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.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original.
This Agreement shall be governed by and construed in
accordance with the laws of the State of Maryland.
This Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns, but no
assignment or transfer hereof or of any rights or obligations
hereunder shall be made by any party without the written consent
of the other party. Nothing herein expressed or implied is
intended or shall be construed to confer upon or give any person,
firm or corporation, other than the parties hereto and their
respective successors and assigns, any rights or remedies under or
by reason of this Agreement.
[Signature page follows]
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its Chairman of the Board, President
or Vice President and attested to by its Secretary or Assistant
Secretary.
WARBURG, PINCUS EMERGING MARKETS II FUND, INC.
By:/s/Hal Liebes
Name: Hal Liebes
Title: Secretary
Attestation By:/s/George Travers
Name: George Travers
Title: Vice President/Compliance
WARBURG, PINCUS EMERGING MARKETS FUND, INC.
By:/s/Hal Liebes
Name: Hal Liebes
Title: Secretary
Attestation By:/s/George Travers
Name: George Travers
Title: Vice President/Compliance Officer
Solely with respect to paragraph 9.2:
CREDIT SUISSE ASSET MANAGEMENT, LLC
By:/s/Hal Liebes
Name: Hal Liebes
Title: General Counsel
Attestation By/s/George Travers
Name: George Travers
Title: Vice President/Compliance Officer
AGREEMENT TO AMEND
THE
AGREEMENT AND PLAN OF REORGANIZATION
Reference is made to the AGREEMENT AND PLAN OF REORGANIZATION
(the "Agreement") dated as of the 1st day of December, 1999,
between and among Warburg, Pincus Emerging Markets Fund, Inc., a
Maryland corporation (the "Acquiring Fund"), and Warburg, Pincus
Emerging Markets II Fund, Inc., a Maryland corporation (the "Fund"
and, together with the Acquiring Fund, the "Funds"), and, solely
for purposes of Section 9.2 thereof, Credit Suisse Asset
Management, LLC, a limited liability company organized under the
laws of the State of Delaware. Capitalized terms used in this
agreement and not otherwise defined herein have the meanings
ascribed thereto in the Agreement.
WHEREAS, Section 3.1 of the Agreement states that the Closing
Date for the Reorganization shall be January 28, 2000, or such
other date as the parties to such Reorganization may agree to in
writing;
WHEREAS, pursuant to Section 12 of the Agreement, the
Agreement may be amended, modified or supplemented in writing in
such manner as may be mutually agreed upon by the authorized
officers of the Fund and the Acquiring Fund; and
WHEREAS, each of the Fund and the Acquiring Fund desires to
amend the terms of Section 3.1 such that the Closing Date for the
Reorganization shall be February 11, 2000.
NOW, THEREFORE, the parties agree that Section 3.1 of the
Agreement is hereby amended and rested in its entirety as follows:
The Closing Date for the Reorganization shall be
February 11, 2000, 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 4:00 p.m., at the
offices of Willkie Farr & Gallagher or at such other time and/or
place as the parties may agree.
IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be executed by its Chairman of the Board,
President or Vice President and attested to by its Secretary or
Assistant Secretary.
WARBURG, PINCUS EMERGING MARKETS FUND, INC.
By:/s/Hal Liebes
Name: Hal Liebes
Title: Secretary
Attestation By: Stuart J. Cohen
Name: Stuart J. Cohen
Title: Assistant Secretary
WARBURG, PINCUS EMERGING MARKETS II FUND, INC.
By: /s/Hal Liebes
Name: Hal Liebes
Title: Secretary
Attestation By: /s/Stuart J. Cohen
Name: Stuart J. Cohen
Title: Assistant Secretary
Dated as of January 27, 2000
