DISTRIBUTION AGREEMENT
____ __, 1999
Credit Suisse Asset Management Securities, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
This is to confirm that, in consideration of the agreements
hereinafter contained, each of the Warburg Pincus Funds (and the portfolios
thereof) listed in Exhibit A hereto (each a "Fund", and together, the "Funds")
have agreed that Credit Suisse Asset Management Securities, Inc. ("CSAMSI")
shall be, for the period of this Agreement, the distributor of shares of common
stock or beneficial interest, as the case may be, of each Fund, par value $.001
per share (the "Shares"). The Fund's classes of Shares shall be designated as in
the Fund's Articles of Incorporation or Declaration of Trust, as applicable.
1. Services as Distributor
1.1 CSAMSI will be the "principal underwriter" of the Shares (as
defined in the Investment Company Act of 1940, as amended (the "1940 Act")), and
as such, will act as agent for the distribution of all classes of the Shares
covered by each Fund's registration statement on Form N-1A, under the Securities
Act of 1933, as amended (the "1933 Act"), and the 1940 Act (the registration
statement, together with the prospectuses (the "prospectus") and statement of
additional information (the "statement of additional information") included as
part of the registration statement, any amendments to the registration
statement, and any supplements to, or material incorporated by reference into
the prospectus or statement of additional information, being referred to
collectively in this Agreement as the "Registration Statement").
1.2 CSAMSI agrees to use appropriate efforts to solicit orders for
the sale of the Shares at such prices and on the terms and conditions set forth
in the Registration Statement. CSAMSI agrees to file with all necessary
regulatory authorities, such as the National Association of Securities Dealers,
Inc. (the "NASD") and the Securities and Exchange Commission (the "SEC"), such
advertising and sales literature as has been previously approved by the Funds.
CSAMSI agrees that it will have legal responsibility under all applicable laws,
rules and regulations, including the rules and regulations of the SEC and the
NASD, for
the form and use of all advertising and sales literature for the Funds which
CSAMSI prepares, uses, approves for use and/or files with the SEC and/or the
NASD.
1.3 All activities by CSAMSI as distributor of the Shares shall
comply with all applicable laws, rules and regulations, including, without
limitation, all rules and regulations made or adopted by the SEC or by any
securities association registered under the Securities Exchange Act of 1934, as
amended.
1.4 CSAMSI agrees to (a) provide one or more persons during normal
business hours to respond to telephone questions concerning the Funds and their
respective performance, (b) accept purchase, redemption and exchange orders by
telephone or other appropriate means as agreed to with the Funds in accordance
with the pricing and other terms in each Registration Statement, (c) provide
prospectuses and application forms of other Warburg Pincus Funds upon request,
(d) enter into distribution and service agreements with broker-dealers and other
financial intermediaries, and (e) perform such other services as the parties may
agree from time to time. CSAMSI will act only on its own behalf as principal
should it choose to enter into distribution or service agreements but agrees not
to enter into any such agreements without the prior written consent of a duly
authorized Fund officer.
1.5 CSAMSI acknowledges that, whenever in the judgment of a Fund's
officers such action is warranted for any reason, including, without limitation,
market, economic or political conditions, those officers may direct CSAMSI to
decline to accept any orders for, or make any sales of, any class of the Shares
until such time as those officers deem it advisable to accept such orders and to
make such sales. In addition, CSAMSI acknowledges that, whenever in the judgment
of a Fund's officers any person or group is likely to engage in excessive
trading, those officers may direct CSAMSI to decline to accept any particular
order to purchase shares of the Fund, including purchase by exchange.
1.6 CSAMSI will transmit any orders received by it for purchase,
redemption or exchange of the Shares to State Street Bank and Trust Company
("State Street"), the Funds' transfer and dividend disbursing agent, or its
delegate or successor of which CSAMSI is notified in writing. A Fund will
promptly advise CSAMSI of the determination to cease accepting orders or selling
any class of the Shares or to recommence accepting orders or selling any class
of the Shares. Each Fund (or its agent) will confirm orders for the Shares
placed through CSAMSI, and will make appropriate book entries pursuant to the
instructions of CSAMSI. CSAMSI agrees to cause any payment for Shares received
by it and any instructions as to book entries received by it to be delivered
promptly to the relevant Fund (or its agent).
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1.7 CSAMSI will prepare and deliver such quarterly reports as
requested by each Fund's governing board of directors or trustees, as the case
may be (the "Board"), and otherwise from time to time as requested by the Fund.
Such reports shall be substantially in the form requested by the Fund. If
requested by the Fund, one or more appropriate CSAMSI representatives shall
attend Board meetings at the expense of CSAMSI.
2. Duties of the Fund
2.1 Each Fund agrees at its own expense to execute any and all
documents, to furnish any and all information and to take any other actions that
may be reasonably necessary in connection with the sale of the Shares in those
states that CSAMSI may designate.
2.2 Each Fund shall from time to time furnish for use in connection
with the sale of the Shares, such informational reports with respect to the Fund
and the Shares as CSAMSI may reasonably request, all of which shall be signed by
one or more of the Fund's duly authorized officers; and the Fund warrants that
the statements contained in any such reports, when so signed by one or more of
the Fund's officers, shall be true and correct. Each Fund shall also furnish
CSAMSI upon request with: (a) annual audits of the Fund's books and accounts
made by independent public accountants regularly retained by the Fund, (b)
semiannual unaudited financial statements pertaining to the Fund, (c) a monthly
itemized list of the securities held by the Fund, (d) monthly balance sheets and
(e) such additional information regarding the Fund's financial condition as
CSAMSI may from time to time reasonably request.
3. Representations and Warranties
3.1 Each Fund represents and warrants to CSAMSI that the Fund's
current Registration Statement (a) includes all statements required to be
contained therein in conformity with the 1933 Act, the 1940 Act and the rules
and regulations of the SEC; (b) only contains statements of fact that will be
true and correct when such Registration Statement becomes effective; and (c)
will not include an 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. CSAMSI may, but shall not be obligated to, propose from
time to time such amendment or amendments to any Registration Statement and such
supplement or supplements to any prospectus or statement of additional
information as may, in the opinion of CSAMSI's counsel, be necessary or
advisable. If a Fund shall not propose such amendment or amendments and/or
supplement or supplements within fifteen (15) days after receipt by the Fund of
a written request from CSAMSI to do so, CSAMSI may, at its option, terminate
this Agreement. A Fund shall not file any amendment to any Registration
Statement or supplement to any prospectus or statement of additional information
without giving CSAMSI
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reasonable notice thereof in advance; provided, however, that nothing contained
in this Agreement shall in any way limit a Fund's right to file at any time such
amendments to any Registration Statement and/or supplements to any prospectus or
statement of additional information with respect to any class of the Shares, of
whatever character, as the Fund may deem advisable, such right being in all
respects absolute and unconditional.
4. Effectiveness of Registration
None of the Shares shall be offered by either CSAMSI or a Fund under
any of the provisions of this Agreement and no orders for the purchase or sale
of any class of the Shares shall be accepted by CSAMSI if and so long as the
effectiveness of the Registration Statement shall be suspended under any of the
provisions of the 1933 Act or if and so long as a current prospectus is not on
file with the SEC; provided, however, that nothing contained in this Section 4
shall in any way restrict or have an application to or bearing upon the Fund's
obligation to repurchase its shares from any shareholder in accordance with the
provisions of the Registration Statement.
5. Indemnification
5.1 Each Fund agrees to indemnify, defend and hold CSAMSI, its
several officers and directors, and any person who controls CSAMSI within the
meaning of Section 15 of the 1933 Act (collectively, "CSAMSI Indemnified
Persons"), free and harmless from and against any and all claims, demands,
liabilities and expenses (including the cost of investigating or defending such
claims, demands or liabilities and any counsel fees incurred in connection
therewith) which CSAMSI Indemnified Persons, may incur arising out of or based
upon (a) any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement relating to such Fund; (b) any omission
or alleged omission to state a material fact required to be stated in any
Registration Statement relating to such Fund or necessary to make the statements
in any Registration Statement relating to such Fund not misleading; provided,
however, that each Fund's agreement to indemnify CSAMSI Indemnified Persons
shall not be deemed to cover any claims, demands, liabilities or expenses
arising out of or based upon any statements or representations made by CSAMSI or
its representatives or agents that are inconsistent with or vary from statements
and representations contained in any Registration Statement relating to such
Fund and in such financial and other statements relating to such Fund as are
furnished to CSAMSI pursuant to Section 2.2 hereof; (c) the breach by a Fund of
this Agreement. A Fund's agreement to indemnify CSAMSI Indemnified Persons and a
Fund's representations and warranties hereinbefore set forth in Section 3.1
shall not be deemed to cover any liability to such Fund or its shareholders to
which CSAMSI Indemnified Persons would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in
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the performance of their duties, or by reason of CSAMSI's reckless disregard of
its obligations and duties under this Agreement. Each Fund's agreement to
indemnify CSAMSI Indemnified Persons as aforesaid, is expressly conditioned upon
the Fund being notified of any action brought against CSAMSI Indemnified Persons
within ten (10) days after the summons or other first legal process shall have
been served. The failure to so notify a Fund of any such action shall not
relieve the Fund from any liability that the Fund may have to the CSAMSI
Indemnified Person by reason of any such untrue or alleged untrue statement or
omission or alleged omission otherwise than on account of the Fund's indemnity
agreement contained in this Section 5.1. Each Fund's indemnification agreement
contained in this Section 5.1 and each Fund's representations and warranties in
this Agreement shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of any CSAMSI Indemnified Person, and
shall survive the delivery of any of the Shares and termination of this
Agreement. This agreement of indemnity will inure exclusively to CSAMSI's
benefit, to the benefit of its several officers and directors, and their
respective estates, and to the benefit of the controlling persons and their
successors.
5.2 CSAMSI agrees to indemnify, defend and hold each Fund, the
Funds' investment adviser(s) (the "Adviser"), their several officers and
directors, and any person who controls a Fund or the Adviser within the meaning
of Section 15 of the 1933 Act (collectively, "Fund Indemnified Persons"), free
and harmless from and against any and all claims, demands, liabilities and
expenses (including the costs of investigating or defending such claims, demands
or liabilities and any counsel fees incurred in connection therewith) which Fund
Indemnified Persons may incur, but only to the extent that such liability or
expense incurred by the Fund Indemnified Persons resulting from such claims or
demands shall arise out of or be based upon (a) any sales literature,
advertisements, information, statements or representations issued or made by
CSAMSI without the prior written consent of the Fund or its agent, (b) any
untrue or alleged untrue statement of a material fact contained in information
furnished in writing by CSAMSI to a Fund specifically for use in the
Registration Statement relating to such Fund, (c) any omission or alleged
omission to state a material fact in connection with such information required
or necessary to make such information not misleading or (d) the breach by CSAMSI
of this Agreement. CSAMSI's agreement to indemnify a Fund Indemnified Person, as
aforesaid, is expressly conditioned upon CSAMSI's being notified of any action
brought against the Fund Indemnified Person, such notification to be given in
writing by the Fund Indemnified Person against whom such action is brought,
within ten (10) days after the summons or other first legal process shall have
been served. The failure to so notify CSAMSI of any such action shall not
relieve CSAMSI from any liability that CSAMSI may have to the Fund Indemnified
Person by reason of any such untrue or alleged untrue statement or omission or
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alleged omission otherwise than on account of CSAMSI's indemnity agreement
contained in this Section 5.2.
5.3 In case any action shall be brought against any indemnified
party under Section 5.1 or 5.2, and it shall timely notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish to do so, to assume the
defense thereof with counsel satisfactory to such indemnified party. If the
indemnifying party opts to assume the defense of such action, the indemnifying
party will not be liable to the indemnified party for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than (a) reasonable costs of investigation or the
furnishing of documents or witnesses and (b) all reasonable fees and expenses of
separate counsel to such indemnified party if (i) the indemnifying party and the
indemnified party shall have agreed to the retention of such counsel or (ii) the
indemnified party shall have reasonably concluded that representation of the
indemnifying party and the indemnified party by the same counsel would be
inappropriate due to actual or potential differing interests between them in the
conduct of the defense of such action.
6. Notice to CSAMSI
Each Fund agrees to advise CSAMSI immediately in writing:
(a) of any request by the SEC for amendments to the Registration
Statement relating to such Fund then in effect with respect to any class
of the Shares or for additional information;
(b) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement relating to
such Fund then in effect with respect to any class of the Shares or the
initiation of any proceeding for that purpose;
(c) of the happening of any event that makes untrue any statement of
a material fact made in the Registration Statement relating to such Fund
then in effect with respect to any class of the Shares or that requires
the making of a change in such Registration Statement in order to make the
statements therein not misleading; and
(d) of the commencement of any litigation or proceedings against the
Fund or any of its officers or Board members in connection with the
issuance and sale of any class of the Shares.
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7. Amendments; Assignments
This Agreement may be amended only by written agreement signed by
CSAMSI and each Fund. To the extent that a written amendment pursuant to this
Section is signed by some but not all of the Funds, such amendment shall be
effective only with respect to the Funds that signed such written amendment.
This Agreement may not be assigned by either party without the prior
written consent of the other party. This Agreement will also terminate
automatically in the event of its assignment (as defined in the 1940 Act).
8. Term of Agreement
This Agreement shall continue for an initial period of two years and
thereafter shall continue automatically for successive annual periods with
respect to a Fund, provided such continuance is specifically approved at least
annually by (a) a vote of a majority of the Fund's Board or (b) a vote of a
majority (as defined in the 0000 Xxx) of the Fund's outstanding voting
securities, provided that its continuance is also approved by a vote of a
majority of the Fund's Board members who are not interested persons (as defined
in the 0000 Xxx) of any party to this Agreement, by vote cast in person at a
meeting called for the purpose of voting on such approval. This Agreement is
terminable by a Fund without penalty (a) on sixty (60) days' written notice, by
a vote of a majority of the Fund's Board or by vote of a majority (as defined in
the 0000 Xxx) of the Fund's outstanding voting securities, or (b) on one hundred
twenty (120) days' written notice by CSAMSI.
9. Notices
All notices required to be given pursuant to this Agreement shall be
in writing, delivered by messenger or express mail or courier service addressed
as follows:
If to CSAMSI:
Credit Suisse Asset Management Securities, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn:________________________
If to a Fund:
c/o Credit Suisse Asset Management, LLC
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxxx, Esq.
Any such notice shall be deemed to have been duly given or made when
delivered to the addresses set forth above (a) on the
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date of delivery if sent by hand or (b) on the designated date of delivery if
sent by express mail or courier service.
10. Limitation of Liability
It is expressly agreed that this Agreement was executed by or on behalf of
each Fund and not by the Board members of the Fund or its officers individually,
and the obligations of the Fund hereunder shall not be binding upon any of the
Board members, shareholders, nominees, officers, agents or employees of the Fund
individually, but bind only the assets and property of the Fund. The execution
and delivery of this Agreement have been authorized by the Board and signed by
an authorized officer of each Fund, acting as such, and neither such
authorization by such Board nor such execution and delivery by such officer
shall be deemed to have been made by any of them individually or to impose any
liability on any of them personally, but shall bind only the property of the
Fund.
11. Choice of Law
This Agreement shall be governed by and interpreted and enforced in
accordance with the laws of the State of New York without giving effect to the
choice-of-law provisions thereof.
12. Counterparts
This Agreement may be executed in counterparts, each of which shall
be deemed an original.
13. Headings
The headings of the Sections of this Agreement are for convenience
of reference only and are not to be considered in construing the terms and
provisions of this Agreement.
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Please confirm that the foregoing is in accordance with your
understanding by indicating your acceptance hereof at the place below indicated,
whereupon it shall become a binding agreement between us.
Very truly yours,
WARBURG, XXXXXX [ ] FUND, INC.
By:_____________________________________
Name: _______________________________
Title: ______________________________
Accepted:
CREDIT SUISSE ASSET MANAGEMENT SECURITIES, INC.
By:________________________________
Name: __________________________
Title: _________________________
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EXHIBIT A
WARBURG PINCUS FUNDS
Warburg Pincus Central & Eastern Europe Fund
Warburg Pincus Emerging Markets II Fund
Warburg Pincus European Equity Fund
Warburg Pincus Global Telecommunications Fund
Warburg Pincus High Yield Fund
Warburg Pincus International Growth Fund
Warburg Pincus Long-Short Equity Fund
Warburg Pincus Long-Short Market Neutral Fund
Warburg Pincus Municipal Bond Fund
Warburg Pincus Select Economic Value Equity Fund
Warburg Pincus Strategic Global Fixed Income Fund
Warburg Pincus U.S. Core Equity Fund
Warburg Pincus U.S. Core Fixed Income Fund
Warburg Pincus Balanced Fund
Warburg Pincus Capital Appreciation Fund
Warburg Pincus Emerging Growth Fund
Warburg Pincus Emerging Markets Fund
Warburg Pincus Fixed Income Fund
Warburg Pincus Global Fixed Income Fund
Warburg Pincus Global Post-Venture Capital Fund
Warburg Pincus Growth & Income Fund
Warburg Pincus Health Sciences Fund
Warburg Pincus Institutional Fund
Emerging Markets Portfolio
International Equity Portfolio
Japan Growth Portfolio
Post-Venture Capital Portfolio
Small Company Growth Portfolio
Small Company Value Portfolio
Value Portfolio
Warburg Pincus Intermediate Maturity Government Fund
Warburg Pincus New York Intermediate Municipal Fund
Warburg Pincus International Equity Fund
Warburg Pincus International Small Company Fund
Warburg Pincus Major Foreign Markets Fund
Warburg Pincus Japan Growth Fund
Warburg Pincus Japan Small Company Fund
Warburg Pincus Post-Venture Capital Fund
Warburg Pincus Small Company Growth Fund
Warburg Pincus Small Company Value Fund
Warburg Pincus Cash Reserve Fund
Warburg Pincus New York Tax Exempt Fund
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Warburg Pincus WorldPerks Money Market Fund
Warburg Pincus WorldPerks Tax Free Money Market Fund
Warburg Pincus Trust
Emerging Growth Portfolio
Emerging Markets Portfolio
Growth & Income Portfolio
International Equity Portfolio
Post-Venture Capital Portfolio
Small Company Growth Portfolio
Warburg Pincus Trust II
Fixed Income Portfolio
Global Fixed Income Portfolio
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