Exhibit e
PLACEMENT AGENCY AGREEMENT
THIS PLACEMENT AGENCY AGREEMENT made as of the 1st day of
October, 2001 by and between TT International U.S.A. Master Trust, a
Massachusetts trust (the "Trust") on behalf of its series TT EAFE Portfolio and
TT Europe Portfolio (each, a "Fund" and collectively, the "Funds"), and QUASAR
DISTRIBUTORS, LLC, a Delaware limited liability company (the "Placement Agent");
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
WHEREAS, the Placement Agent 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 desire to engage the Placement Agent to serve as
placement agent for the beneficial interests (the "Interests") 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 Placement Agent 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 PLACEMENT AGENT.
(a) Each Fund hereby appoints the Placement Agent as
exclusive placement agent for its Interests, and the Placement Agent 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 Registration
Statement (as defined below). It is understood and agreed that the services of
the Placement Agent hereunder are not exclusive, and the Placement Agent may act
as principal underwriter for the shares of any other registered investment
company.
(b) The Placement Agent also acknowledges that this
Agreement does not require the appointment of the Placement Agent 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 Placement Agency Agreement with the Placement Agent
2. SERVICES AND DUTIES OF THE PLACEMENT AGENT.
(a) The Placement Agent agrees to sell the Interests,
as agent for each Fund, from time to time during
the term of this Agreement upon the terms described in the current, applicable
Registration Statement, provided Interests shall be offered and sold only to
such persons as may be approved by the Board of Trustees of the Trust. As used
in this Agreement, 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 1940 Act, as such Registration Statement is amended by any amendments
thereto at the time in effect. The Placement Agent shall not be obligated to
sell any certain number of Interests. The Placement Agent shall not make any
offer or sale of Interests in a manner that would require the Interests to be
registered under the U.S. Securities Act of 1933, as amended (the "1933 Act"),
or under any state securities laws.
(b) Each Fund may terminate, suspend, modify the
terms and conditions of, or withdraw the offering of its Interests at any time.
Nothing in this Agreement shall require a Fund to accept any offer to purchase
any Interests.
(c) The offering price of the Interests shall be the
net asset value of the Interests determined as set forth in the applicable
Registration Statement.
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
maintain the effectiveness of its Registration Statement under the 1940 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 necessary in order that there
may be no omission to state a material fact in its Registration Statement which
omission would make the statements therein misleading.
(b) Maintenance of "Blue Sky" Exemption. Interests
shall be offered and sold only in transactions exempt from the registration
requirements of state securities laws.
(c) Information. Each Fund shall, at its expense,
keep the Placement Agent fully informed with regard to its affairs and in
connection therewith shall furnish to the Placement Agent copies of all
information, financial statements and other papers which the Placement Agent may
reasonably request for use in connection with the placement of Interests in the
Fund.
4. CONFORMITY WITH APPLICABLE LAW AND RULES. The Placement
Agent agrees that in selling Interests hereunder it shall conform in all
respects with the laws of the United States and of any state in which Interests
may be offered, and with applicable rules and regulations of the NASD.
5. INDEPENDENT CONTRACTOR. In performing its duties hereunder,
the Placement Agent shall be an independent contractor and neither the Placement
Agent, nor any of its officers, directors, employees, or representatives is or
shall be an employee of the Funds in the performance of the Placement Agent's
duties hereunder. The Placement Agent 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 Placement Agent assumes full responsibility for its agents and employees
under applicable statutes and agrees to pay all employee taxes thereunder,
provided the Placement Agent shall not be responsible for the compensation,
benefits, or employee taxes of any registered representatives of the Placement
Agent who are employees of TTI.
6. COMPENSATION. The Funds shall not be required to pay any
distribution fees or other amounts to the Placement Agent in consideration of
their performances under this Agreement.
7. INDEMNIFICATION.
(a) The Placement Agent 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 any statute, at
common law, or otherwise, arising out of the acquisition of any Interests 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
Placement Agent or any of the Placement Agent'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,
financial report or other information covering Interests filed by a Fund with
the SEC or authorized by a Fund for use in connection with the offer and sale of
Interests 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 Placement Agent. In no case (i) is the Placement Agent'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 Placement Agent 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 Placement
Agent 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 Placement Agent of any such claim shall not
relieve the Placement Agent from any liability which the Placement Agent may
have to a Fund or any person against whom such action is brought otherwise than
on account of the Placement Agent's indemnity agreement contained in this
Section.
(b) The Placement Agent shall be entitled to participate,
at its own expense, in the defense, or, if the Placement Agent so elects, to
assume the defense of any suit subject to indemnity under Section 7(a), but, if
the Placement Agent elects to assume the defense, such defense shall be
conducted by legal counsel chosen by the Placement Agent and satisfactory to the
applicable Fund, and to the persons indemnified as defendant or defendants, in
the suit. In the event that the Placement Agent 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 Placement Agent does not elect to assume the defense of any such
suit, the Placement Agent 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
Placement Agent 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 Interests. It is
acknowledged that the Placement Agent 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 Placement Agent 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 Interests other than the
information and representations contained in the applicable Registration
Statement filed with the SEC under the 1940 Act, covering Interests, as such
Registration Statement may be amended or supplemented from time to time, or
contained in financial reports or other material that may be prepared by or on
behalf of a Fund for the Placement Agent's use. All advertising, sales
literature or other sales material used by the Placement Agent shall be approved
by or provided by the applicable Fund, and the Funds agree to furnish to the
Placement Agent any advertising, sales literature or other sales material
desired to be used in connection with the offer and sale of Fund Interests so as
to enable the Placement Agent to comply with the applicable filing and
regulatory requirements of NASD Regulation, Inc. No person other than the
Placement Agent 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 Placement Agent 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 Placement Agent acknowledges
that it has, no proprietary or other rights in the name 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 Placement Agent 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 Placement Agent 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
Placement Agent 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 Placement
Agent. The Placement Agent 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 Placement Agent at 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx,
XX 00000. Notices to the Funds 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 investors 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. MASTER TRUST,
on behalf of its series TT EAFE
Portfolio and TT Europe Portfolio
By: /s/ X.X. Xxxxxxx
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Name: X.X. Xxxxxxx
Title: Secretary
QUASAR DISTRIBUTORS, LLC
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: President
