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Execution Copy
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Exhibit e
DISTRIBUTION AGREEMENT
January 3, 2000
Provident Distributors, Inc.
Four Falls Corporate Center, 0xx Xxxxx
Xxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx 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 Provident Distributors, Inc. ("PDI") 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 PDI 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 PDI 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. PDI 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.
PDI 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
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PDI prepares, uses, approves for use and/or files with the SEC and/or the NASD.
1.3 All activities by PDI 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 PDI 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. PDI 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 For its services with respect to the Funds, PDI will be
paid such fee as set forth in the Reimbursement Agreement between Credit Suisse
Asset Management, LLC ("CSAM") and PDI, dated of even date herewith. Such amount
will be paid to PDI by CSAM directly; PDI agrees that it will not look to the
Funds for payments of amounts due but will look solely to CSAM.
1.6 PDI 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
PDI 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, PDI 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 PDI to decline to accept any
particular order to purchase shares of the Fund, including purchase by exchange.
1.7 PDI 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 PDI is notified in writing. A Fund will promptly
advise PDI 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 PDI, and will make
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appropriate book entries pursuant to the instructions of PDI. PDI 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).
1.8 PDI 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 PDI representatives shall attend
Board meetings at the expense of PDI.
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 PDI 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 PDI 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 PDI 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 PDI may from time to time reasonably request.
3. Representations and Warranties
3.1 Each Fund represents and warrants to PDI 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. PDI 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 PDI's counsel, be necessary or advisable.
If a Fund shall not propose such amendment or amendments and/or supplement or
supplements within fifteen (15)
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days after receipt by the Fund of a written request from PDI to do so, PDI 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 PDI 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.
3.2 PDI makes the following representations, warranties and
covenants to the Funds:
(i) PDI is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation, and has
the requisite power and authority to enter into this Agreement and to perform
its services herein;
(ii) PDI is registered and qualified as a
broker-dealer with the SEC and in all states of the United States, Guam, Puerto
Rico and the U.S. Virgin Islands or is exempt from such registration; PDI is a
member in good standing of the NASD; PDI's personnel have all necessary
registrations or qualifications; PDI and its personnel are in compliance in all
material respects with all federal and state securities or similar laws and
regulations applicable to PDI or its personnel; and PDI will maintain all
registrations, authorizations and qualifications for itself and its personnel
necessary to perform the services required hereunder in full force and effect
during the term of this Agreement;
(iii) PDI will not disclose or use any confidential
information relating to the Funds, CSAM or their affiliates without the express
written consent of the relevant Fund or CSAM, as applicable, and will promptly
return such confidential information to the party that provided it upon
termination of this Agreement; provided, however, that such information may be
disclosed or used to the extent necessary for PDI to perform its obligations
under this Agreement, and such information may be disclosed if PDI is legally
compelled to disclose such information in an action, proceeding or investigation
by any court or regulatory authority having jurisdiction over PDI;
(iv) PDI will not, directly or indirectly, at any
time during the term of this Agreement and for a three-year period thereafter,
solicit or induce or attempt to solicit or induce any current or future
employees of a Fund, CSAM or their affiliates to terminate his or her employment
with the Fund or CSAM or their affiliates;
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(v) PDI will not, directly or indirectly, at any time
during the term of this Agreement and for a three-year period thereafter,
solicit or induce or attempt to solicit or induce any current or future client
of CSAM or shareholder of a Fund or one or more other Warburg Pincus Funds to
terminate its advisory relationship with CSAM or redeem its investment in the
Fund or such other Warburg Pincus Funds;
(vi) there is no action, suit, proceeding or
investigation pending or threatened against PDI or its affiliates which
questions the validity of this Agreement, or in which there is a reasonable
possibility of an adverse decision which could adversely affect PDI's ability to
perform its obligations pursuant to this Agreement;
(vii) PDI will maintain or cause to be maintained
with financially sound and reputable insurance companies, policies with respect
to its business against such risks and in at least such amounts as are customary
in the case of distributors of open-end investment companies of comparable size
and for such independent distributors of comparable financial strength, and will
furnish to the Funds, upon request, information presented in reasonable detail
as to such insurance;
(viii) PDI is taking steps (a) believed by it in good
faith to be reasonably designed to address the risk that critical systems and
equipment that it uses relating to its operations may be unable to process and
calculate date-related information and data from and after January 1, 2000 (the
"Year 2000 Problem"), and (b) to obtain assurances deemed reasonable by PDI that
its material service providers are taking reasonable steps to address the Year
2000 Problem. PDI agrees to notify the Funds promptly if it has reason to
believe that a Year 2000 Problem with respect to PDI or its material service
providers is likely to have a material adverse effect on PDI's business or
operations or is likely to adversely affect PDI's ability to perform its
obligations pursuant to this Agreement;
(ix) PDI and its affiliates shall not use the name or
logo of the Funds or CSAM or their affiliates, or any abbreviation or variation
thereof, in any manner without the prior written consent of the Funds or CSAM,
as the case may be; and
(x) PDI will institute appropriate procedures to
monitor the services provided by PDI hereunder to assure that the services are
provided in a professional manner and in accordance with high standards of
excellence.
3.3 All representations and warranties contained in this
Section 3 shall be continuing and remain in full force and effect during the
term of this Agreement and shall survive the execution and delivery of this
Agreement.
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4. Effectiveness of Registration
None of the Shares shall be offered by either PDI 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 PDI 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 PDI, its
several officers and directors, and any person who controls PDI within the
meaning of Section 15 of the 1933 Act (collectively, "PDI 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 PDI
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 PDI 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 PDI 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 PDI
pursuant to Section 2.2 hereof; (c) the breach by a Fund of this Agreement. A
Fund's agreement to indemnify PDI 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 PDI
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 PDI's reckless disregard of its obligations and duties under this Agreement.
Each Fund's agreement to indemnify PDI Indemnified Persons as aforesaid, is
expressly conditioned upon the Fund being notified of any action brought against
PDI 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 PDI Indemnified Person by reason of any such
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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 PDI 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 PDI'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 PDI 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 PDI
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 PDI 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 PDI of this Agreement. PDI's
agreement to indemnify a Fund Indemnified Person, as aforesaid, is expressly
conditioned upon PDI'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 PDI of any such action shall not relieve PDI from any
liability that PDI 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 PDI's indemnity agreement contained in this Section 5.2.
PDI's indemnification agreement contained in this Section 5.2 and PDI'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
the Fund Indemnified Persons, and shall survive the delivery of any of the
Shares and termination of this Agreement. This agreement of indemnity will inure
exclusively to the Fund Indemnified Person's benefit, to the benefit of their
several officers and directors, and their respective estates, and to the benefit
of the controlling persons and their successors.
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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 PDI
Each Fund agrees to advise PDI 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. Notice to the Fund
PDI agrees to advise the relevant Fund(s) immediately in
writing:
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(a) of any request for documents or other information
relating to a Fund or the services provided under this Agreement,
pursuant to an informal or formal investigation by the SEC or any other
regulatory authority having jurisdiction over PDI or the Fund;
(b) upon the occurrence of any event that is
reasonably likely to adversely affect PDI's ability to perform its
obligations pursuant to this Agreement;
(c) if at any time any of the representations,
warranties or covenants set forth in Section 3.2 of this Agreement
become inaccurate or untrue; and
(d) of the commencement of any litigation or
proceedings against PDI or any of its officers or directors in
connection with the issuance and sale of any class of the Shares.
8. Amendments; Assignments
This Agreement may be amended only by written agreement signed
by PDI 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).
9. 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 PDI.
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10. 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 PDI:
Provident Distributors, Inc.
Four Falls Corporate Center, 0xx Xxxxx
Xxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx 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 date of delivery if sent
by hand or (b) on the designated date of delivery if sent by express mail or
courier service.
11. 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.
12. 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.
13. Counterparts
This Agreement may be executed in counterparts, each of which
shall be deemed an original.
14. Headings
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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,
THE WARBURG PINCUS FUNDS LISTED ON EXHIBIT A
By: /s/Xxx Xxxxxx
-----------------------------------------
Name: Xxx Xxxxxx
Title: Vice President and Secretary
Accepted:
PROVIDENT DISTRIBUTORS, INC.
By: /s/Xxxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President
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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
Warburg Pincus WorldPerks Money Xxxxxx Xxxx
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Xxxxxxx Xxxxxx 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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