DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT, dated as of December 18, 2000, between DLJ
Opportunity Funds, a Delaware business trust (the "Fund"), and Credit Suisse
Asset Management Securities, Inc. (the "Distributor"). The Fund is registered as
a series investment Company under the Investment Company Act of 1940 (the "1940
Act"), and an indefinite number of shares of beneficial interest in one or more
series (the "Shares") have been registered under the Securities Act of 1933 (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 agree 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 Trustees,
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 portion 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 Rules of Fair Practice, 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 Funds 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 Funds, 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 Funds 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 agree 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 Securities Act of 1933, 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 paragraph 9 below, the Distributor will bear those
costs of printing and distributing copies of any prospectuses and annual
or interim reports of the Fund which are used in connection with the
offering of Shares which are incremental to the costs of setting in type
such prospectuses and reports 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 approval of the Board of Trustees, 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 or
annual or interim reports prepared for distribution to its shareholders.
9. The Fund will pay the Distributor for costs and expenses incurred by
the Distributor 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 Trustee Approval and Disinterested Trustee 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 Trustees as set forth in Section 13 hereof. The
persons authorized to direct the payment of funds pursuant to this Agreement and
the Plans shall provide to the Fund's Boards of Trustees, and the Trustees 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 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
Trustees, officers, employees and agents and any person who controls the Funds
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 or
arising by reason of disabling conduct by such indemnitee or 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 unless it is subsequently
determined that the indemnity is entitled to such indemnification and if the
Trustees of the Fund determine that the facts then known to them would not
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 Trustees 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 Trustees") 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 Trustees 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 become effective with respect to any class and
any series when approved by the respective Board of Trustees and shall remain in
effect for up to two years from its effective date (one year in the case of
Section 9) and thereafter from year to year provided such continuance is
specifically approved at least annually prior to each anniversary of such date
by (a) Trustee 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 series
present or represented by proxy and (ii) 50 percent of the outstanding Shares of
such class or series and (b) by Disinterested Trustee 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
Sec tion 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
Trustees, officers or shareholders of the Fund are personally liable hereunder.
Neither the Trustees, 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.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed by the Fund's authorized officers as of December 18, 2000.
DLJ Opportunity Funds
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Credit Suisse Asset Management
Securities, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President and Legal Counsel
