DISTRIBUTION AGREEMENT
__________, 2000
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, Credit Suisse Institutional Fund, Inc., on behalf of each of its
series (collectively, the "Fund") has agreed that Credit Suisse Asset Management
Securities, Inc. ("CSAMSI") shall be, for the period of this Agreement, the
distributor of shares of common stock of the Fund, par value $.001 per share
(the "Shares"). The Fund's classes of Shares shall be designated as set forth in
the Fund's Articles of Incorporation.
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
the 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 Fund. 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 Fund 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 Fund 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 the 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 the 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 Fund's transfer and dividend disbursing agent, or its delegate or
successor of which CSAMSI is notified in writing. The 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.
The 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
Fund (or its agent).
1.7 CSAMSI will prepare and deliver such quarterly reports as requested by
the Fund's board of directors (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.
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2. DUTIES OF THE FUND
2.1 The 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 The 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. The 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 The 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 the 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. The Fund shall not
file any amendment to any Registration Statement or supplement to any prospectus
or statement of additional information without giving CSAMSI reasonable notice
thereof in advance; provided, however, that nothing contained in this Agreement
shall in any way limit the 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
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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 the 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 The 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 the 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 the Fund
of this Agreement. The Fund's agreement to indemnify CSAMSI Indemnified Persons
and the 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 the performance of their
duties, or by reason of CSAMSI's reckless disregard of its obligations and
duties under this Agreement. The 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
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shall have been served. The failure to so notify the 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. The Fund's
indemnification agreement contained in this Section 5.1 and the 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 the Fund, the Fund's
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 the 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 the 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 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
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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
The 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.
7. AMENDMENTS; ASSIGNMENTS
This Agreement may be amended only by written agreement signed by CSAMSI
and the Fund.
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).
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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 the 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 the 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 the 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 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
the 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 the Fund,
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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,
CREDIT SUISSE INSTITUTIONAL FUND,
INC.
By:________________________________
Name: __________________________
Title: _________________________
Accepted:
CREDIT SUISSE ASSET MANAGEMENT SECURITIES, INC.
By:___________________________
Name: _____________________
Title: ____________________
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