DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT, dated as of August 9, 2002, between Credit Suisse
Strategic Small Cap Fund, Inc. (the "Fund"), and Credit Suisse Asset Management
Securities, Inc. (the "Distributor").
The Fund is registered as an investment company under the Investment
Company Act of 1940 (the "1940 Act"), and 3 billion shares of Common Stock, par
value $.001 per share (the "Shares"), have been registered under the Securities
Act of 1933, as amended (the "1933 Act"), to be offered for sale to the public
in a continuous public offering in accordance with terms and conditions set
forth in the Prospectus and Statement of Additional Information (the
"Prospectus") of the Fund included in the Fund's Registration Statement on Form
N-1A, as such documents may be amended from time to time.
In this connection, the Fund desires that the Distributor act as its
exclusive sales agent and distributor for the sale and distribution of Shares.
The Distributor has advised the Fund that it is willing to act in such
capacities, and it is accordingly agreed between them as follows:
1. The Fund hereby appoints the Distributor as exclusive sales agent and
distributor for the sale and distribution of Shares pursuant to the aforesaid
continuous public offering of Shares, and the Fund further agrees from and after
the commencement of such continuous public offering that it will not, without
the Distributor's consent, sell or agree to sell any Shares otherwise than
through the Distributor, except the Fund may issue Shares in connection with a
merger, consolidation or acquisition of assets on such basis as may be
authorized or permitted under the 0000 Xxx.
2. The Distributor hereby accepts such appointment and agrees to use its
best efforts to sell such Shares, provided, however, that when requested by the
Fund at any time for any reason the Distributor will suspend such efforts. The
Fund may also withdraw the offering of Shares at any time when determined to be
in the best interests of the shareholders of the Fund by the Board of Directors,
or when required by the provisions of any statute, order, rule or regulation of
any governmental body having jurisdiction. It is understood that the Distributor
does not undertake to sell all or any specific number of the Shares.
3. The Distributor represents that it is a member in good standing of the
National Association of Dealers, Inc. and agrees that it will use all reasonable
efforts to maintain such status and to abide by the Conduct Rules, the
Constitution and the Bylaws of the National Association of Securities Dealers,
Inc., and all other rules and regulations that are now or may become applicable
to its performance hereunder. The Distributor will undertake and discharge its
obligations hereunder as an independent contractor and it shall have no
authority or power to obligate or bind the Fund by its actions, conduct or
contracts except that it is authorized to accept orders for the purchase or
repurchase of Shares as the Fund's agent and subject to its approval. The Fund
reserves the right to reject any order in whole or in part. The Distributor may
appoint sub-agents or distribute through dealers or otherwise as it may
determine from time to time pursuant to agreements approved by the Fund, but
this Agreement shall not be construed as authorizing any dealer or other person
to accept orders for sale or repurchase of Shares on behalf
of the Fund or otherwise act as the Fund's agent for any purpose. The
Distributor shall not utilize any materials in connection with the sale or
offering of Shares except the then current Prospectus and such other materials
as the Fund shall provide or approve in writing.
4. Shares may be sold by the Distributor only at prices and terms described
in the then current Prospectus relating to the Shares and may be sold either
through persons with whom it has selling agreements or directly to prospective
purchasers. To facilitate sales, the Fund will furnish the Distributor with the
net asset value of its Shares promptly after each calculation thereof.
5. The Fund has delivered to the Distributor a copy of its current
Prospectus. It agrees that it will use its best efforts to continue the
effectiveness of its Registration Statement filed under the 1933 Act and the
1940 Act. The Fund further agrees to prepare and file any amendments to its
Registration Statement as may be necessary and any supplemental data in order to
comply with such Acts.
6. The Fund will take such steps at its own expense as may be necessary and
feasible to qualify Shares for sale in states, territories or dependencies of
the United States of America and in the District of Columbia in accordance with
the laws thereof, and to renew or extend any such qualification; provided,
however, that the Fund shall not be required to qualify Shares or to maintain
the qualification of Shares in any state, territory, dependency or district
where it shall deem such qualification disadvantageous to the Fund. The
Distributor will pay all expenses relating to its broker-dealer qualifications.
7. The Distributor agrees that:
(a) It will furnish to the Fund any pertinent information required to
be inserted with respect to the Distributor as exclusive sales agent and
distributor within the purview of Federal and state securities laws in any
reports or registrations required to be filed with any government
authority;
(b) It will not make any representations inconsistent with the
information contained in the Registration Statement or Prospectus filed
under the 1933 Act, as in effect from time to time;
(c) It will not use or distribute or authorize the use or distribution
of any statements other than those contained in the Fund's then current
Prospectus or in such supplemental literature or advertising as may be
authorized in writing by the Fund; and
(d) Subject to Section 9 below, the Distributor will bear those costs
of printing and distributing copies of any Prospectuses which are used in
connection with the offering of Shares which are incremental to the costs
of setting in type such Prospectuses and the costs of printing the copies
of such documents that the Fund prepares for distribution to its
shareholders, and the costs of preparing, printing and distributing any
other literature used by the Distributor or furnished by the Distributor
for use in connection with the offering of the Shares and the costs and
expenses incurred by the Distributor in advertising, promoting and selling
Shares to the public. Subject to the
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approval of the Board of Directors, such costs may be reimbursed or
compensated pursuant to Section 9.
8. The Fund will pay its legal and auditing expenses and the cost of
composition, setting in type, printing and distribution of the Prospectuses
reports prepared for distribution to its shareholders.
9. The Fund will compensate the Distributor for its services in connection
with distribution of Shares by the Distributor in accordance with the terms of
the Plans of Distribution (the "Plans") adopted by the Fund pursuant to Rule
12b-1 under the 1940 Act as such Plans may be in effect from time to time;
provided, however, that no payments shall be due or paid to the Distributor
hereunder unless and until this Agreement shall have been approved by Director
Approval and Disinterested Director Approval (as such terms are defined in such
Plans). The Fund reserves the right to modify or terminate such Plans at any
time as specified in the Plans and Rule 12b-1, and this Section 9 shall
thereupon be modified or terminated to the same extent without further action of
the parties. In addition, this Section 9 may be modified or terminated by the
Directors as set forth in Section 12 hereof. The persons authorized to direct
the payment of funds pursuant to this Agreement and the Plans shall provide to
the Fund's Board of Directors, and the Director shall review, at least quarterly
a written report of the amounts so paid and the purposes for which such
expenditures were made. The amounts paid under this Agreement are in addition to
the amount of any initial sales charge or contingent deferred sales charge, if
any, paid to the Distributor pursuant to the terms of the Fund's Registration
Statement as in effect from time to time.
10. The Fund agrees to indemnity, defend and hold the Distributor, its
officers, directors, employees and agents and any person who controls the
Distributor within the meaning of Section 15 of the 1933 Act (each, an
"indemnitee"), free and harmless from and against any and all claims, demands,
liabilities and expenses, including costs of investigation or defense (including
reasonable counsel fees) incurred by such indemnitee in connection with the
defense or disposition of any action, suit or other proceeding, whether civil or
criminal, in which such indemnitee may be or may have been involved as a party
or otherwise or with which he may be or may have been threatened, while the
Distributor was active in such capacity or by reason of the Distributor having
acted in any such capacity or arising out of or based upon any untrue statement
of a material fact contained in the then current Prospectus relating to the
Shares or arising out of or based upon any alleged omission to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as such claims, demands, liabilities or expenses
arise out of or are based upon any such untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information furnished in writing by the Distributor to the Fund expressly for
use in any such Prospectus; provided, however, that (1) no indemnitee shall be
indemnified hereunder against any liability to the Fund or the shareholders of
the Fund or any expense of such indemnitee with respect to any matter as to
which such indemnitee shall have been adjudicated not to have acted in good
faith in the reasonable belief that its action was in the best interest of the
Fund or arising by reason of such indemnitee's willful misfeasance, bad faith,
or gross negligence in the performance of its duties, or by reason of its
reckless disregard of its obligations under this Agreement ("disabling
conduct"), or (2) as to any matter disposed of by settlement or a compromise
payment by such indemnitee, no indemnification shall be provided unless there
has
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been a determination that such settlement or compromise is in the best interests
of the Fund and that such indemnitee appears to have acted in good faith in the
reasonable belief that its action was in the best interest of the Fund and did
not involve disabling conduct by such indemnitee. Notwithstanding the foregoing
the Fund shall not be obligated to provide any such indemnification to the
extent such provision would waive any right which the Fund cannot lawfully
waive.
The Distributor agrees to indemnify, defend and hold the Fund, its
Directors, officers, employees and agents and any person who controls the Fund
within the meaning of Section 15 of the 1933 Act (each, an "indemnitee"), free
and harmless from and against any and all liabilities and expenses, including
costs of investigation or defense (including reasonable counsel fees) incurred
by such indemnitee, but only to the extent that such liability or expense shall
arise out of or be based upon any untrue or alleged untrue statement of a
material fact contained in information furnished in writing by the Distributor
of the Fund expressly for use in a Prospectus or any alleged omission to state a
material fact in connection with such information required to be stated therein
or necessary to make such information not misleading but shall not be liable for
any liability or expense arising by reason of disabling conduct by such
indemnitee or by reason of acts or omissions by any person selling Shares
pursuant to an agreement with the Distributor.
The Fund shall make advance payments in connection with the expenses of
defending any action with respect to which indemnification might be sought
hereunder if the Fund receives a written affirmation of the indemnitee's good
faith belief that the standard of conduct necessary for indemnification has been
met and a written undertaking to reimburse the Fund if it is subsequently
determined that the indemnity is entitled to such indemnification and if the
Directors of the Fund determine that the facts then known to them would preclude
indemnification. In addition, at least one of the following conditions must be
met: (A) the indemnitee shall provide a security for his undertaking, (B) the
Fund shall be insured against losses arising by reason of any lawful advances,
or (C) a majority of a quorum of Directors of the Fund who are neither
"interested persons" of the Fund (as defined in Section 2(a)(19) of the Act) nor
parties to the proceeding ("Disinterested Non-Party Directors") or an
independent legal counsel in a written opinion, shall determine, based on a
review of readily available facts (as opposed to a full trial-type inquiry),
that there is reason to believe that the indemnitee ultimately will be found
entitled to indemnification.
All determinations with respect to indemnification hereunder shall be made
(1) by a final decision on the merits by a court or other body before whom the
proceeding was brought that such indemnitee is not liable by reason of disabling
conduct or, (2) in the absence of such a decision, by (i) a majority vote of a
quorum of the Disinterested Non-Party Directors of the Fund, or (ii) if such a
quorum is not obtainable or even, if obtainable, if a majority vote of such
quorum so directs, independent legal counsel in a written opinion.
11. This Agreement shall apply to the Fund's Class A, Class B and Class C
Shares and shall become effective with respect to any other class and any series
when approved by the Board of Directors. This Agreement shall remain in effect
for up to two years from its effective date and thereafter from year to year,
provided such continuance is specifically approved at least annually prior to
each anniversary of such date by (a) Directors Approval or by vote at a meeting
of shareholders of such class or series of the lesser of (i) 67 percent of the
Shares of such class or
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series present or represented by proxy and (ii) 50 percent of the outstanding
Shares of such class or series and (b) by Disinterested Directors Approval.
12. This Agreement may be terminated (a) by the Distributor at any time
without penalty by giving sixty (60) days written notice to the Fund which
notice may be waived by the Fund; or (b) by the Fund at any time without penalty
upon sixty (60) days' written notice to the Distributor (which notice may be
waived by the Distributor); provided, however, that any such termination by the
Fund shall be directed or approved in the same manner as required for
continuance of this Agreement by Section 11(a) (or, in the case of termination
of Section 9, by Section 11(b)).
13. This Agreement may not be amended or changed except in writing signed
by each of the parties hereto and approved in the same manner as provided for
continuance of this Agreement in Section 11(a) (or, in the case of amendment of
Section 9, by Section 11(b)). Any such amendment or change shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors, but this Agreement shall not be assigned by either party and shall
automatically terminate upon assignment (as such term is defined in the 1940 Act
and the rules thereunder).
14. This Agreement shall be construed in accordance with the laws of the
State of New York applicable to agreements to be performed entirely therein and
in accordance with applicable provisions of the 1940 Act.
15. If any provision of this Agreement shall be held or made invalid or
unenforceable by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected or impaired thereby.
16. Notice is hereby given that this Agreement is entered into on behalf of
the Fund by an officer of the Fund in such officer's capacity as an officer and
not individually. It is understood and expressly stipulated that none of the
Directors, officers or shareholders of the Fund are personally liable hereunder.
Neither the Directors, officers or shareholders assume any personal liability
for obligations entered into on behalf of the Fund. All persons dealing with the
Fund shall look solely to the property of the Fund for the enforcement of any
claims against the Fund.
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed by the Fund's authorized officers as of August 9, 2002.
CREDIT SUISSE STRATEGIC SMALL CAP
FUND, INC.
By: /s/Xxx Xxxxxx
-------------
Name: Xxx Xxxxxx
Title: Vice President and Secretary
CREDIT SUISSE ASSET MANAGEMENT
SECURITIES, INC.
By: /s/Xxx Xxxxxx
-------------
Name: Xxx Xxxxxx
Title: Managing Director and General Counsel
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