Exhibit e
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT made as of the 1st day of October,
2001 by and between TT International U.S.A. Feeder Trust, a Massachusetts
business trust (the "Trust") on behalf of its series TT EAFE Mutual Fund and TT
Europe Mutual Fund (each, a "Fund" and collectively, the "Funds"), and QUASAR
DISTRIBUTORS, LLC, a Delaware limited liability company (the "Distributor");
W I T N E S S E T H:
WHEREAS, each Fund is registered as an open-end management investment
company under the Investment Company Act of 1940 (the "1940 Act") and it is in
the interest of each Fund to offer its shares for sale continuously; and
WHEREAS, the Distributor is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and is a member in
good standing of the National Association of Securities Dealers, Inc. (the
"NASD"); and
WHEREAS, the Funds and the Distributor wish to enter into an agreement
with each other with respect to the continuous offering of the shares of
beneficial interest (the "Shares") of the Funds; and
WHEREAS, TT International Investment Management, an English partnership
("TTI"), will serve as the investment manager of the Funds and will enter into a
Distribution Fee Agreement of even date herewith under which TTI shall pay the
fees of the Distributor for its services under this Agreement;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the parties agree as follows:
1. APPOINTMENT OF DISTRIBUTOR.
(a) Each Fund hereby appoints the Distributor as exclusive
agent to sell and to arrange for the sale of its Shares, on the terms and for
the period set forth in this Agreement, provided the Funds may issue Shares
directly in connection with the payment or reinvestment of Fund dividends. The
Distributor hereby accepts such appointment and agrees to act hereunder directly
and/or through the Funds' transfer agent in the manner set forth in the
applicable Prospectuses (as defined below). It is understood and agreed that the
services of the Distributor hereunder are not exclusive, and the Distributor may
act as principal underwriter for the shares of any other registered investment
company.
(b) The Distributor also acknowledges that this Agreement
does not require the appointment of the Distributor as distributor for any
additional series of the Trust (an "Additional Fund") provided nothing in this
Agreement limits the right of any Additional Fund to enter into a separate
Distribution Agreement with the Distributor.
2. SERVICES AND DUTIES OF THE DISTRIBUTOR.
(a) The Distributor agrees to sell the Shares, as agent for
the Funds, from time to time during the term of this Agreement upon the terms
described in the current Prospectus. As used in this Agreement, the term
"Prospectus" shall mean, with respect to a Fund, a prospectus and statement of
additional information included as part of that Fund's Registration Statement,
as such prospectus and statement of additional information may be amended or
supplemented from time to time, and the term "Registration Statement" shall
mean, with respect to a Fund, the Registration Statement filed from time to time
on behalf of that Fund with the Securities and Exchange Commission ("SEC") and
currently effective under the Securities Act of 1933 (the "1933 Act") and the
1940 Act, as such Registration Statement is amended by any amendments thereto at
the time in effect. The Distributor shall not be obligated to sell any certain
number of Shares. The Distributor undertakes to appoint employees of TTI who are
engaged in the distribution of Shares of one or both of the Funds as registered
representatives of the Distributor and to exercise regulatory supervision over
them. The Distributor agrees to perform its obligations under this Agreement in
accord with such marketing and sales strategy and procedures for regulatory
supervision as may be agreed upon from time to time by the Funds and the
Distributor.
(b) The Distributor will hold itself available to receive
orders, satisfactory to the Distributor, for the purchase of the Shares of each
Fund and will accept such orders and will transmit such orders and funds
received by it in payment for such Shares as are so accepted to the Funds'
transfer agent or custodian, as appropriate, as promptly as practicable.
Purchase orders shall be deemed accepted and shall be effective at the time and
in the manner set forth in the applicable Prospectus. The Distributor shall not
make any short sales of Shares. Each Fund may terminate, suspend, modify the
terms and conditions of, or withdraw the offering of its Shares at any time.
(c) The offering price of the Shares shall be the net asset
value per share of the Shares, plus the sales charge, if any (determined as set
forth in the Prospectus). The Funds shall furnish the Distributor, with all
possible promptness, an advice of each computation of net asset value and
offering price.
(d) The Distributor shall have the right to enter into
selected dealer agreements with securities dealers approved by the Funds
("selected dealers") for the sale of Shares. Shares sold to selected dealers
shall be for resale by such dealers only at the offering price of the Shares as
set forth in the applicable Prospectus. The Distributor shall engage only such
selected dealers as are members in good standing of the NASD. The Distributor
shall reasonably endeavor to require selected dealers to comply with the terms
of this Agreement and applicable laws.
3. DUTIES OF THE FUNDS.
(a) Maintenance of Federal Registration. Each Fund shall,
at its expense, reasonably endeavor to take all necessary action and such steps,
including payment of the related filing fees, as may be necessary to register
and maintain registration of a sufficient number of Shares under the 1933 Act.
Each Fund agrees to file from time to time such amendments, reports and other
documents as may be necessary in order that there may be no untrue statement of
a material fact in its Registration Statement or Prospectus, or necessary in
order that there may be no omission to state a material fact in its Registration
Statement or Prospectus which omission would make the statements therein
misleading. If a Fund notifies the Distributor that the effectiveness of that
Fund's Registration Statement has been suspended or that a current Prospectus
for the Fund is not on file with the SEC, the Distributor will cease the
offering of Shares of the Fund until it is otherwise instructed by the Fund.
(b) Maintenance of "Blue Sky" Qualifications. Each Fund
shall, at its expense, reasonably endeavor to qualify and maintain the
qualification of an appropriate number of its Shares for sale under the
securities laws of such states as the Distributor and the Fund may approve, and,
if necessary or appropriate in connection therewith, to qualify and maintain the
qualification of the Fund as a broker or dealer in such states; provided that a
Fund shall not be required to amend its Agreement and Declaration of Trust or
By-Laws to comply with the laws of any state, to maintain an office in any
state, to change the terms of the offering of its Shares in any state, to change
the terms of the offering of its Shares in any state from the terms set forth in
the applicable Prospectuses, to qualify as a foreign trust in any state or to
consent to service of process in any state other than with respect to claims
arising out of the offering and sale of its Shares. The Distributor shall
furnish such information and other material relating to its affairs and
activities as may be required by the Funds in connection with such
qualifications.
(c) Copies of Reports and Prospectuses. Each Fund shall, at
its expense, keep the Distributor fully informed with regard to its affairs and
in connection therewith shall furnish to the Distributor copies of all
information, financial statements and other papers which the Distributor may
reasonably request for use in connection with the distribution of the Fund's
Shares, including such reasonable number of copies of Prospectuses and annual
and interim reports as the Distributor may request and shall cooperate fully in
the efforts of the Distributor to sell and arrange for the sale of the Fund's
Shares and in the performance of the Distributor under this Agreement.
4. CONFORMITY WITH APPLICABLE LAW AND RULES. The Distributor
agrees that in selling Shares hereunder it shall conform in all respects with
the laws of the United States and of any state in which Shares may be offered,
and with applicable rules and regulations of the NASD.
5. INDEPENDENT CONTRACTOR. In performing its duties hereunder,
the Distributor shall be an independent contractor and neither the Distributor,
nor any of its officers, directors, employees, or representatives is or shall be
an employee of the Funds in the performance of the Distributor's duties
hereunder. The Distributor shall be responsible for its own conduct and the
employment, control, and conduct of its agents and employees and for injury to
such agents or employees or to others through its agents or employees. The
Distributor assumes full responsibility for its agents and employees under
applicable statutes and agrees to pay all employee taxes thereunder, provided
the Distributor shall not be responsible for the compensation, benefits, or
employee taxes of any registered representatives of the Distributor who are
employees of TTI.
6. COMPENSATION. The Funds shall not be required to pay any
distribution fees or other amounts to the Distributor in consideration of their
performances under this Agreement.
7. INDEMNIFICATION.
(a) The Distributor agrees to indemnify and hold harmless
the Trust and the Funds and each of their present or former Trustees, officers,
employees, and representatives and each person, if any, who controls or
previously controlled the Trust or the Funds within the meaning of Section 15 of
the 1933 Act and TTI, its partners and employees against any and all losses,
liabilities, damages, claims, or expenses (including the reasonable costs of
investigating or defending any alleged loss, liability, damage, claims or
expense and reasonable legal counsel fees incurred in connection therewith) to
which the Funds or any such person may become subject under the 1933 Act, under
any other statute, at common law, or otherwise, arising out of the acquisition
of any Shares by any person which (i) may be based upon any wrongful act or
omission (including, without limitation, any breach of Section 4, Section 8 or
Section 15) by the Distributor or any of the Distributor's directors, officers,
employees or representatives, or (ii) may be based upon any untrue statement or
alleged untrue statement of a material fact contained in a Registration
Statement, Prospectus, shareholder report or other information covering Shares
filed or made public by a Fund or any amendment thereof or supplement thereto,
or the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading if
such statement or omission was made in reliance upon and in conformity with
information furnished to a Fund by the Distributor. In no case (i) is the
Distributor's indemnity in favor of a Fund or any other person so indemnified to
be deemed to protect that Fund or such indemnified person against any liability
to which the Fund or such person would otherwise be subject by reason of willful
misfeasance, bad faith, or negligence in the performance of the Fund's or such
person's duties or by reason of negligent disregard of the Fund's or such
person's obligations and duties under this Agreement or (ii) is the Distributor
to be liable under its indemnity agreement contained in this Section with
respect to any claim made against a Fund or any other person indemnified
hereunder unless that Fund or such person, as the case may be, shall have
notified the Distributor in writing of the claim within a reasonable time after
the summons or other first written notification giving information of the nature
of the claim shall have been served upon the Fund or upon such person (or after
the Fund or such person shall have received notice of such service on any
designated agent). However, failure to notify the Distributor of any such claim
shall not relieve the Distributor from any liability which the Distributor may
have to a Fund or any person against whom such action is brought otherwise than
on account of the Distributor's indemnity agreement contained in this Section.
(b) The Distributor shall be entitled to participate, at
its own expense, in the defense, or, if the Distributor so elects, to assume the
defense of any suit subject to indemnity under Section 7(a), but, if the
Distributor elects to assume the defense, such defense shall be conducted by
legal counsel chosen by the Distributor and satisfactory to the applicable Fund,
and to the persons indemnified as defendant or defendants, in the suit. In the
event that the Distributor elects to assume the defense of any such suit and
retain such legal counsel, the applicable Fund and any other persons entitled to
be indemnified under Section 7(a) in relation to such suit shall bear the fees
and expenses of any additional legal counsel retained by them. If the
Distributor does not elect to assume the defense of any such suit, the
Distributor will reimburse the applicable Fund and any other persons entitled to
be indemnified under Section 7(a) in relation to such suit for the reasonable
fees and expenses of any legal counsel retained by them. The Distributor agrees
to promptly notify the Funds of the commencement of any litigation of
proceedings against it or any of its officers, employees or representatives in
connection with the issue or sale of any Shares. It is acknowledged that the
Distributor may not enter into any settlement of any suit, claim or proceeding
subject to its indemnity obligations under this Agreement without the consent of
the applicable Fund, such consent not to be unreasonably withheld.
8. AUTHORIZED REPRESENTATIONS. The Distributor is not
authorized by the Funds to give on behalf of either Fund any information or to
make any representations in connection with the sale of Shares other than the
information and representations contained in the applicable Registration
Statement or Prospectus filed with the SEC under the 1933 Act and/or the 1940
Act, covering Shares, as such Registration Statement and Prospectus may be
amended or supplemented from time to time, or contained in applicable
shareholder reports or other material that may be prepared by or on behalf of a
Fund for the Distributor's use. All advertising, sales literature or other sales
material used by the Distributor shall be approved by or provided by the
applicable Fund, and the Funds agree to furnish to the Distributor any
advertising, sales literature or other sales material desired to be used in
connection with the offer and sale of Fund Shares so as to enable the
Distributor to comply with the applicable filing and regulatory requirements of
NASD Regulation, Inc. No person other than the Distributor is authorized to act
as principal underwriter (as such term is defined in the 0000 Xxx) for the
Funds.
9. TERM OF AGREEMENT. The term of this Agreement shall begin
on the date first above written, and unless sooner terminated as hereinafter
provided, this Agreement shall remain in effect with respect to each Fund for a
period of two years from the date first above written. Thereafter, this
Agreement shall continue in effect with respect to a Fund from year to year,
subject to the termination provisions and all other terms and conditions
thereof, so long as such continuation shall be specifically approved at least
annually by (i) the Board of Trustees or by vote of a majority of the
outstanding voting securities of the applicable Fund and, (ii) by the vote, cast
in person at a meeting called for the purpose of voting on such approval, of a
majority of the Trustees of the applicable Fund who are not parties to this
Agreement or interested persons of any such party. The Distributor shall furnish
to a Fund, promptly upon its request, such information as may reasonably be
necessary to evaluate the terms of this Agreement or any extension, renewal or
amendment hereof.
10. AMENDMENT OR ASSIGNMENT OF AGREEMENT. This Agreement may
not be amended or assigned except as permitted by the 1940 Act, and this
Agreement shall automatically and immediately terminate in the event of its
assignment.
11. TERMINATION OF AGREEMENT. This Agreement may be terminated
with respect to a Fund by either party hereto, without the payment of any
penalty, on not more than upon 60 days' nor less than 30 days' prior notice in
writing to the other party; provided, that in the case of termination by a Fund
such action shall have been authorized by resolution of a majority of the
Trustees of that Fund who are not parties to this Agreement or interested
persons of any such party, or by vote of a majority of the outstanding voting
securities of that Fund.
12 USE OF FUND AND TTI NAME. The Distributor acknowledges that
it has, no proprietary or other rights in the names or the Funds and TTI, or any
related names or trademarks and that it will not by virtue of this Agreement or
the performances hereunder acquire any such rights. Following the termination of
this Agreement, the Distributor shall execute and deliver any instrument that
the Funds may reasonably request for the purpose of confirming this section.
13. MISCELLANEOUS.
(a) The captions in this Agreement are included for
convenience of reference only and in no way define or delineate any of the
provisions hereof or otherwise affect their construction or effect.
(b) This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(c) Nothing herein contained shall be deemed to require a
Fund to take any action contrary to its Declaration of Trust or By-Laws, or any
applicable statutory or regulatory requirement to which it is subject or by
which it is bound, or to relieve or deprive the Board of Trustees of the Funds
of responsibility for and control of the conduct of the affairs of the Funds.
The Distributor shall, as may be requested from time to time, meet with and
provide reports to the Trustees of the Funds concerning the activities of the
Distributor hereunder.
(d) References to any Section in this Agreement shall,
unless otherwise indicated, refer to a Section of this Agreement.
(e) The provisions of this Agreement are severable, and in
the event any provision of this Agreement is found to be invalid or
unenforceable (i) such provision shall not affect the validity or enforceability
of any otherwise valid or enforceable provisions of this Agreement, and (ii) any
court of competent jurisdiction is authorized to reform this Agreement by
replacing such invalid or unenforceable provision with a valid and enforceable
provision that to the fullest extent possible effects the purposes of such
invalid or unenforceable provision
14. DEFINITION OF TERMS. Any question of interpretation of any
term or provision of this Agreement having a counterpart in or otherwise derived
from a term or provision of the 1940 Act shall be resolved by reference to such
term or provision of the 1940 Act and to interpretation thereof, if any, by the
United States courts or, in the absence of any controlling decision of any such
court, by rules, regulations or orders of the SEC validly issued pursuant to the
1940 Act. Specifically, the terms "vote of a majority of the outstanding voting
securities", "interested persons," "assignment," and "affiliated person," as
used in Sections 9, 10, and 11 hereof, shall have the meanings assigned to them
by Section 2(a) of the 1940 Act. In addition, where the effect of a requirement
of the 1940 Act reflected in any provision of this Agreement is relaxed by a
rule, regulation or order of the SEC, whether of special or of general
application, such provision shall be deemed to incorporate the effect of such
rule, regulation or order.
15. COMPLIANCE WITH SECURITIES LAWS. Each Fund represents that
it is registered as an open-end management investment company under the 1940
Act, and agrees that it will comply with all the provisions of the 1940 Act and
of the rules and regulations thereunder, provided the Funds shall not be
responsible hereunder for any breach of the 1940 Act or the rules and
regulations thereunder that arises from any act or omission of the Distributor.
The Funds and the Distributor each agree to comply with all of the applicable
terms and provisions of the 1933 Act and of the rules and regulations
thereunder, and, subject to the provisions of Section 4(d), all applicable "Blue
Sky" laws. The Distributor agrees to comply with all of the applicable terms and
provisions of the 1934 Act and of the rules and regulations thereunder.
16. NOTICES. Any notice required to be given pursuant to this
Agreement shall be deemed duly given if delivered or mailed by registered mail,
postage prepaid, to the Distributor at 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX
00000. Notices to the Fund should be sent c/o Investors Bank & Trust Company,
000 Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000, with a copy to Head of Compliance, TT
International Investment Management, Xxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxx, Xxxxxxx,
XX0X ODP.
17. GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the Commonwealth of Massachusetts. Each
party irrevocably consents to the jurisdiction of the courts of the Commonwealth
of Massachusetts, and any U.S. federal courts sitting within said Commonwealth,
for purposes of any proceeding relating to this Agreement and irrevocably waives
any objection to the convenience of any such court.
18. PROTECTION OF FUNDS AND TRUSTEES. Each party acknowledges
and agrees that all obligations of each Fund under this Agreement are binding
only with respect to that Fund; that any liability of a Fund under this
Agreement, or in connection with the transactions contemplated herein, shall be
discharged only out of the assets of that Fund; and that no other series of the
Trust shall be liable with respect to this Agreement or in connection with the
transactions contemplated herein. The obligations of this Agreement are not
binding upon any of the Trustees or shareholders of the Funds individually, but
bind only the trust estate of the applicable Fund and not the assets of any
other series of the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below on the date first written above.
TT INTERNATIONAL U.S.A. FEEDER TRUST, on
behalf of its series TT EAFE Mutual Fund
and TT Europe Mutual Fund
By: /s/ X.X. Xxxxxxx
--------------------------------
Name: X.X. Xxxxxxx
Title: Secretary
QUASAR DISTRIBUTORS, LLC
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: President
