Exhibit (e1)
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made and entered into as of this 1st day of
January, 2008, by and between TIFF Investment Program, Inc., a Maryland
Corporation business Fund Company (the "Fund Company") and QUASAR DISTRIBUTORS,
LLC, a Delaware limited liability company (the "Distributor"). TIFF ADVISORY
SERVICES, INC., a Delaware Corporation and the investment advisor to the Fund
Company (the "Advisor"), is a party hereto with respect to Section 5 only.
WHEREAS, the Fund Company is registered under the Investment Company
Act of 1940, as amended (the "1940 Act"), as an open-end management investment
company, and is authorized to issue shares ("Shares") in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets;
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
of the Financial Industry Regulatory Authority ("FINRA");
WHEREAS, the Fund Company desires to retain the Distributor as
principal underwriter in connection with the offer and sale of the Shares of
each series of the Fund Company listed on Exhibit A hereto (as amended from
time to time) (each a "Fund" and collectively, the "Funds"); and
WHEREAS, this Agreement has been approved by a vote of the Fund
Company's board of directors ("Board of Directors" or the "Board"), including
its disinterested directors voting separately, in conformity with Section 15(c)
of the 1940 Act.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto, intending to be legally
bound, do hereby agree as follows:
1. APPOINTMENT OF QUASAR AS DISTRIBUTOR
The Fund Company hereby appoints the Distributor as its agent for the
sale and distribution of Shares of the Funds in jurisdictions wherein the
Shares may be legally offered for sale, on the terms and conditions set forth
in this Agreement, and the Distributor hereby accepts such appointment and
agrees to perform the services and duties set forth in this Agreement. The
services and duties of the Distributor shall be confined to those matters
expressly set forth herein, and no implied duties are assumed by or may be
asserted against the Distributor hereunder.
2. SERVICES AND DUTIES OF THE DISTRIBUTOR
A. The Distributor agrees to sell Shares on a best efforts basis as
agent for the Fund Company upon the terms and at the current
offering price (plus sales charge, if any) described in the
Prospectus. As used in this Agreement, the term "Prospectus" shall
mean the current prospectus, including the statement of additional
information, as both may be amended or supplemented, relating to
the Fund and included in the currently effective registration
statement (the "Registration Statement") of the Fund Company filed
under the Securities Act of 1933, as amended (the "1933 Act") and
the 1940 Act. The Fund Company shall in all cases receive the net
asset value per Share on all sales. If a sales charge is in effect,
the Distributor shall remit the sales charge (or portion thereof)
to broker-dealers who have sold Shares, as described in Section
2(G), below. In no event shall the Distributor be entitled to all
or any portion of such sales charge.
B. During the continuous public offering of Shares, the Distributor
will hold itself available to receive orders, satisfactory to the
Distributor, for the purchase of Shares and will accept such orders
on behalf of the Fund Company and transmit such orders and funds
received by it to the Fund Company's transfer agent. Such purchase
orders shall be deemed effective at the time and in the manner set
forth in the Prospectus.
C. The Distributor, with the operational assistance of the Fund
Company's transfer agent and if requested by the Fund Company,
shall make Shares available for sale and redemption through the
National Securities Clearing Corporation's Fund/SERV System.
D. The Distributor acknowledges and agrees that it is not authorized
to provide any information or make any representations other than
as contained in the Prospectus and any sales literature
specifically approved by the Fund Company.
E. The Distributor agrees to cooperate with the Fund Company or its
agent in the development of all proposed advertisements and sales
literature relating to a Fund. The Distributor agrees to review all
proposed advertisements and sales literature for compliance with
applicable laws and regulations, and shall file with appropriate
regulators those advertisements and sales literature it believes
are in compliance with such laws and regulations. The Distributor
agrees to furnish to the Fund Company any comments provided by
regulators with respect to such materials and to use its best
efforts to obtain the approval of the regulators to such materials.
F. The Distributor, at its sole discretion, may repurchase Shares
offered for sale by shareholders of a Fund. Repurchase of Shares by
the Distributor shall be at the price determined in accordance
with, and in the manner set forth in, the Prospectus. At the end of
each business day, the Distributor shall notify the Fund Company
and its transfer agent, by any appropriate means, of the orders for
repurchase of Shares received by the Distributor since the last
report, the amount to be paid for such Shares and the identity of
the shareholders offering Shares for repurchase. The Fund Company
reserves the right to suspend such repurchase right upon written
notice to the Distributor. The Distributor further agrees to act as
agent for the Fund Company to receive and transmit promptly to the
Fund Company's transfer agent, shareholder requests for redemption
of Shares.
G. The Distributor may, if requested by the Fund Company, enter into
agreements with such qualified broker-dealers as the distributor
and the Fund Company may mutually agree, in order that such
broker-dealers also may sell Shares of the Funds. The form of any
dealer agreement shall be approved by the Fund Company. To the
extent there is a sales charge in effect, the Distributor shall pay
the applicable sales charge (or portion thereof), or allow a
discount, to the selling broker-dealer, as described in the
Prospectus.
H. The Distributor shall devote its best efforts to effect sales of
Shares of the Funds but shall not be obligated to sell any certain
number of Shares.
I. The Distributor shall prepare reports for the Board regarding its
activities under this Agreement as from time to time shall be
reasonably requested by the Board, including reports, if
applicable, regarding the use of any 12b-1 payments received by the
Distributor.
J. The Distributor agrees to advise the Fund Company promptly in
writing of the initiation of any proceedings against it by the SEC
or its staff, FINRA or any state regulatory authority.
K. If applicable, the Distributor shall monitor amounts paid under
Rule 12b-1 plans and pursuant to sales loads to ensure compliance
with applicable FINRA rules.
3. REPRESENTATIONS AND COVENANTS OF THE FUND COMPANY
A. The Fund Company hereby represents and warrants to the Distributor,
which representations and warranties shall be deemed to be
continuing throughout the term of this Agreement, that:
(1) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on
its business as now conducted, to enter into this Agreement and
to perform its obligations hereunder;
(2) This Agreement has been duly authorized, executed and delivered
by the Fund Company in accordance with all requisite action and
constitutes a valid and legally binding obligation of the Fund
Company, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting the rights and remedies
of creditors and secured parties;
(3) It is conducting its business in compliance in all material
respects with all applicable laws and regulations, both state
and federal, and has obtained all regulatory approvals
necessary to carry on its business as now conducted; there is
no statute, rule, regulation, order or judgment binding on it
and no provision of its charter, bylaws or any contract binding
it or affecting its property which would prohibit its execution
or performance of this Agreement;
(4) All Shares to be sold by it, including those offered under this
Agreement, are validly authorized and, when issued in
accordance with the description in the Prospectus, will be
fully paid and non-assessable;
(5) The Registration Statement, and Prospectus included therein,
have been prepared in conformity with the requirements of the
1933 Act and the 1940 Act and the rules and regulations
thereunder; and
(6) The Registration Statement (at the time of its effectiveness)
and any advertisements and sales literature prepared by the
Fund Company or its agent (excluding statements relating to the
Distributor and the services it provides that are based upon
written information furnished by the Distributor expressly for
inclusion therein) shall not contain any untrue statement of
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and that all statements or information furnished to
the Distributor pursuant to this Agreement shall be true and
correct in all material respects.
B. The Fund Company, or its agent, shall take or cause to be taken,
all necessary action to register Shares of the Funds under the 1933
Act, qualify such shares for sale in such states as the Fund
Company and the Distributor shall approve, and maintain an
effective Registration Statement for such Shares in order to permit
the sale of Shares as herein contemplated. The Fund Company
authorizes the Distributor to use the Prospectus, in the form
furnished to the Distributor from time to time, in connection with
the sale of Shares.
C. The Fund Company agrees to advise the Distributor promptly in
writing:
(i) of any material correspondence or other communication
by the Securities and Exchange Commission (the "SEC") or its staff
relating to the Fund, including requests by the SEC for amendments
to the Registration Statement or Prospectus;
(ii) in the event of the issuance by the SEC of any
stop-order suspending the effectiveness of the Registration
Statement then in effect or the initiation of any proceeding for
that purpose;
(iii) of the happening of any event which makes untrue any
statement of a material fact made in the Prospectus or which
requires the making of a change in such Prospectus in order to make
the statements therein not misleading;
(iv) of all actions taken by the SEC with respect to any
amendments to any Registration Statement or Prospectus, which may
from time to time be filed with the SEC; and
(v) in the event that it determines to suspend the sale of
Shares at any time in response to conditions in the securities
markets or otherwise, or in the event that it determines to suspend
the redemption of Shares at any time as permitted by the 1940 Act
or the rules of the SEC, including any and all applicable
interpretations of such by the staff of the SEC.
D. The Fund Company shall notify the Distributor in writing of the
states in which the Shares may be sold and shall notify the
Distributor in writing of any changes to such information.
E. The Fund Company agrees to file from time to time such amendments
to its Registration Statement and Prospectus as may be necessary in
order that its Registration Statement and Prospectus will not
contain any untrue statement of material fact or omit to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading.
F. The Fund Company shall fully cooperate in the efforts of the
Distributor to sell and arrange for the sale of Shares and shall
make available to the Distributor a statement of each computation
of net asset value. In addition, the Fund Company shall keep the
Distributor fully informed of its affairs and shall provide to the
Distributor, from time to time, copies of all information,
financial statements and other papers that the Distributor may
reasonably request for use in connection with the distribution of
Shares, including without limitation, certified copies of any
financial statements prepared for the Fund Company by its
independent public accountants and such reasonable number of copies
of the Prospectus and annual and interim reports to shareholders as
the Distributor may request. The Fund Company shall forward a copy
of any SEC filings, including the Registration Statement, to the
Distributor within one business day of any such filings. The Fund
Company represents that it will not use or authorize the use of any
advertising or sales material unless and until such materials have
been approved and authorized for use by the Distributor. Nothing in
this Agreement shall require the sharing or provision of materials
protected by privilege or limitation of disclosure, including any
applicable attorney-client privilege or trade secret materials.
G. The Fund Company has reviewed and is familiar with the provisions
of FINRA Rule 2830(k) prohibiting directed brokerage. In addition,
the Fund Company agrees not to enter into any agreement (whether
orally or in writing) under which the Fund Company directs or is
expected to direct its brokerage transactions (or any commission,
markup or other payment from such transactions) to a broker or
dealer for the promotion or sale of Fund Shares or the shares of
any other investment company. In the event the Fund Company fails
to comply with the provisions of FINRA Rule 2830(k), the Fund
Company shall promptly notify the Distributor.
4. ADDITIONAL REPRESENTATIONS AND COVENANTS OF THE DISTRIBUTOR
The Distributor hereby represents, warrants and covenants to the Fund
Company, which representations, warranties and covenants shall be deemed to be
continuing throughout the term of this Agreement, that:
(1) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on
its business as now conducted, to enter into this Agreement and
to perform its obligations hereunder;
(2) This Agreement has been duly authorized, executed and delivered
by the Distributor in accordance with all requisite action and
constitutes a valid and legally binding obligation of the
Distributor, enforceable in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting the rights and remedies
of creditors and secured parties;
(3) It is conducting its business in compliance in all material
respects with all applicable laws and regulations, both state
and federal, and has obtained all regulatory approvals
necessary to carry on its business as now conducted; there is
no statute, rule, regulation, order or judgment binding on it
and no provision of its charter, bylaws or any contract binding
it or affecting its property which would prohibit its execution
or performance of this Agreement;
(4) It (i) is registered as a broker-dealer under the 1934 Act and
is a member in good standing of FINRA; and (ii) will promptly
notify the Fund Company of any material correspondence or other
communication by FINRA or the SEC or its staff relating to its
status as a registered broker-dealer or member in good standing
of FINRA or of any change in its status as a registered
broker-dealer or member in good standing of FINRA;
(5) It: (i) has adopted an anti-money laundering compliance program
("AML Program") that satisfies the requirements of all
applicable laws and regulations; (ii) undertakes to carry out
its AML Program to the best of its ability; (iii) will promptly
notify the Fund Company and the Advisor if an inspection by the
appropriate regulatory authorities of its AML Program
identifies any material deficiency; and (vi) will promptly
remedy any material deficiency of which it learns; and
(6) In connection with all matters relating to this Agreement, it
will comply with the requirements of the 1933 Act, the 1934
Act, the 1940 Act, the regulations of FINRA and all other
applicable federal or state laws and regulations.
5. COMPENSATION
The Distributor shall be compensated for providing the services set
forth in this Agreement in accordance with the fee schedule set forth on
Exhibit B hereto (as amended from time to time). The Distributor shall also be
compensated for such out-of-pocket expenses (e.g., telecommunication charges,
postage and delivery charges, and reproduction charges) as are reasonably
incurred by the Distributor in performing its duties hereunder. The Fund
Company shall pay all such fees and reimbursable expenses within 30 calendar
days following receipt of the billing notice, except for any fee or expense
subject to a good faith dispute. The Fund Company shall notify the Distributor
in writing within 30 calendar days following receipt of each invoice if the
Fund Company is disputing any amounts in good faith. The Fund Company shall pay
such disputed amounts within 10 calendar days of the day on which the parties
agree to the amount to be paid. With the exception of any fee or expense the
Fund Company is disputing in good faith as set forth above, unpaid invoices
shall accrue a finance charge of 1 1/2% per month after the due date. As of the
date of this Agreement, the Fund Company has not adopted a Rule 12b-1 plan.
Therefore, the Advisor shall be responsible for the payment of the
Distributor's fees and expenses hereunder. If the Fund Company adopts a Rule
12b-1 plan with respect to any Fund in the future, the following additional
provisions of this Section 5 shall apply. Notwithstanding anything to the
contrary, amounts owed by the Fund Company to the Distributor shall only be
paid out of the assets and property of the particular Fund involved. Such fees
and expenses shall be paid to Distributor by the Fund Company from Rule 12b-1
fees payable by the appropriate Fund or, if the Fund does not have a Rule 12b-1
plan, or if Rule 12b-1 fees are not sufficient to pay such fees and expenses,
or if the Rule 12b-1 plan is discontinued, or if the Advisor otherwise
determines that Rule 12b-1 fees shall not, in whole or in part, be used to pay
Distributor, the Advisor shall be responsible for the payment of the amount of
such fees and expenses not covered by Rule 12b-1 payments.
6. EXPENSES
A. The Fund Company (or the Advisor, to the extent required by
applicable law or otherwise agreed between the Fund Company and the
Advisor) shall bear all costs and expenses in connection with the
registration of its Shares with the SEC and its related compliance
with state securities laws, as well as all costs and expenses in
connection with the offering of the Shares and communications with
shareholders, including but not limited to: (i) fees and
disbursements of its counsel and independent public accountants;
(ii) costs and expenses of the preparation, filing, printing and
mailing of Registration Statements and Prospectuses, as well as
related advertising and sales literature; (iii) costs and expenses
of the preparation, printing and mailing of annual and interim
reports, proxy materials and other communications to shareholders;
and (iv) fees required in connection with the offer and sale of
Shares in such jurisdictions as shall be selected by the Fund
Company pursuant to Section 3(D) hereof.
B. The Distributor shall bear the expenses of registration or
qualification of the Distributor as a dealer or broker under
federal or state laws and the expenses of continuing such
registration or qualification. The Distributor does not assume
responsibility for any expenses not expressly assumed hereunder.
The Distributor shall furnish, at its own expense and without cost
to the Funds, the services of personnel to the extent that such
services are required to carry out its obligations under this
Agreement.
7. INDEMNIFICATION
A. The Fund Company shall indemnify, defend and hold the Distributor
and each of its managers, officers, employees, representatives and
any person who controls the Distributor within the meaning of
Section 15 of the 1933 Act (collectively, the "Distributor
Indemnitees"), free and harmless from and against any and all
claims, demands, losses, expenses and liabilities of any and every
nature (including reasonable attorneys' fees) (collectively,
"Losses") that the Distributor Indemnitees may sustain or incur or
that may be asserted against a Distributor Indemnitee by any person
(i) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or any Prospectus, or in any annual or interim report to
shareholders, or in any advertisements or sales literature prepared
by the Fund Company or its agent, or (ii) arising out of or based
upon any omission, or alleged omission, to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or (iii) based upon the Fund
Company's refusal or failure to comply with the terms of this
Agreement or from its bad faith, negligence, or willful misconduct
in the performance of its duties under this Agreement; provided,
however, that the Fund Company's obligation to indemnify the
Distributor Indemnitees shall not be deemed to cover any Losses
arising out of any untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement,
Prospectus, annual or interim report, or any advertisement or sales
literature in reliance upon and in conformity with written
information relating to the Distributor and furnished to the Fund
Company or its counsel by the Distributor for the purpose of, and
used in, the preparation thereof. The Fund Company's agreement to
indemnify the Distributor Indemnitees is expressly conditioned upon
the Fund Company being notified of such action or claim of loss
brought against the Distributor Indemnitees within a reasonable
time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon
the Distributor Indemnitees, unless the failure to give notice does
not prejudice the Fund Company; provided, that the failure so to
notify the Fund Company of any such action shall not relieve the
Fund Company from any liability which the Fund Company may have to
the person against whom such action is brought by reason of any
such untrue, or alleged untrue, statement or omission, or alleged
omission, otherwise than on account of the Fund Company's indemnity
agreement contained in this Section 7(A).
B. The Fund Company shall be entitled to participate at its own
expense in the defense, or if it so elects, to assume the defense
of any suit brought to enforce any such Losses, but if the Fund
Company elects to assume the defense, such defense shall be
conducted by counsel chosen by the Fund Company and approved by the
Distributor, which approval shall not be unreasonably withheld. In
the event the Fund Company elects to assume the defense of any such
suit and retain such counsel, the Distributor Indemnitees in such
suit shall bear the fees and expenses of any additional counsel
retained by them. If the Fund Company does not elect to assume the
defense of any such suit, or in case the Distributor does not, in
the exercise of reasonable judgment, approve of counsel chosen by
the Fund Company, or if under prevailing law or legal codes of
ethics, the same counsel cannot effectively represent the interests
of both the Fund Company and the Distributor Indemnitees, the Fund
Company will reimburse the Distributor Indemnitees for the
reasonable fees and expenses of any counsel retained by them. The
Fund Company's indemnification agreement contained in Sections 7(A)
and 7(B) herein shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the
Distributor Indemnitees and shall survive the delivery of any
Shares and the termination of this Agreement. This agreement of
indemnity will inure exclusively to the benefit of the Distributor
Indemnitees and their successors. The Fund Company agrees promptly
to notify the Distributor of the commencement of any litigation or
proceedings against the Fund Company or any of its officers or
directors in connection with the offer and sale of any of the
Shares.
C. The Fund Company shall advance attorneys' fees and other expenses
incurred by any Distributor Indemnitee in defending any claim,
demand, action or suit which is the subject of a claim for
indemnification pursuant to this Section 7 to the maximum extent
permissible under applicable law.
D. The Distributor shall indemnify, defend and hold the Fund Company
and each of its directors, officers, employees, representatives and
any person who controls the Fund Company within the meaning of
Section 15 of the 1933 Act (collectively, the "Fund Company
Indemnitees"), free and harmless from and against any and all
Losses that the Fund Company Indemnitees may sustain or incur or
that may be asserted against a Fund Company Indemnitee by any
person (i) arising out of or based upon any untrue or alleged
untrue statement of a material fact contained in the Registration
Statement or any Prospectus, or in any annual or interim report to
shareholders, or in any advertisements or sales literature prepared
by the Distributor, or (ii) arising out of or based upon any
omission, or alleged omission, to state therein a material fact
required to be stated therein or necessary to make the statement
not misleading, or (iii) based upon the Distributor's refusal or
failure to comply with the terms of this Agreement or from its bad
faith, negligence, or willful misconduct in the performance of its
duties under this Agreement; provided, however, that with respect
to clauses (i) and (ii), above, the Distributor's obligation to
indemnify the Fund Company Indemnitees shall only be deemed to
cover Losses arising out of any untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration
Statement, Prospectus, annual or interim report, or any
advertisement or sales literature in reliance upon and in
conformity with written information relating to the Distributor and
furnished to the Fund Company or its counsel by the Distributor for
the purpose of, and used in, the preparation thereof. The
Distributor's agreement to indemnify the Fund Company Indemnitees
is expressly conditioned upon the Distributor being notified of any
action or claim of loss brought against the Fund Company
Indemnitees within a reasonable time after the summons or other
first legal process giving information of the nature of the claim
shall have been served upon the Fund Company Indemnitees, unless
the failure to give notice does not prejudice the Distributor;
provided, that the failure so to notify the Distributor of any such
action shall not relieve the Distributor from any liability which
the Distributor may have to the person against whom such action is
brought by reason of any such untrue, or alleged untrue, statement
or omission, otherwise than on account of the Distributor's
indemnity agreement contained in this Section 7(D).
E. The Distributor shall be entitled to participate at its own expense
in the defense, or if it so elects, to assume the defense of any
suit brought to enforce any such Losses, but if the Distributor
elects to assume the defense, such defense shall be conducted by
counsel chosen by the Distributor and approved by the Fund Company,
which approval shall not be unreasonably withheld. In the event the
Distributor elects to assume the defense of any such suit and
retain such counsel, the Fund Company Indemnitees in such suit
shall bear the fees and expenses of any additional counsel retained
by them. If the Distributor does not elect to assume the defense of
any such suit, or in case the Fund Company does not, in the
exercise of reasonable judgment, approve of counsel chosen by the
Distributor, or if under prevailing law or legal codes of ethics,
the same counsel cannot effectively represent the interests of both
the Fund Company Indemnitees and the Distributor, the Distributor
will reimburse the Fund Company Indemnitees for the reasonable fees
and expenses of any counsel retained by them. The Distributor's
indemnification agreement contained in Sections 7(D) and 7(E)
herein shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Fund
Company Indemnitees and shall survive the delivery of any Shares
and the termination of this Agreement. This agreement of indemnity
will inure exclusively to the benefit of the Fund Company
Indemnitees and their successors. The Distributor agrees promptly
to notify the Fund Company of the commencement of any litigation or
proceedings against the Distributor or any of its officers or
directors in connection with the offer and sale of any of the
Shares.
F. The Distributor shall advance attorneys' fees and other expenses
incurred by any Fund Company Indemnitee in defending any claim,
demand, action or suit which is the subject of a claim for
indemnification pursuant to this Section 7 to the maximum extent
permissible under applicable law.
G. No party to this Agreement shall be liable to the other parties for
consequential, special or punitive damages under any provision of
this Agreement. No person shall be obligated to provide
indemnification under this Section 7 if such indemnification would
be impermissible under the 1940 Act, the 1933 Act, the 1934 Act or
the rules of FINRA; provided, however, in
H. Such event indemnification shall be provided under this Section 7
to the maximum extent so permissible.
8. PROPRIETARY AND CONFIDENTIAL INFORMATION
The Distributor agrees on behalf of itself and its managers, officers,
and employees to treat confidentially and as proprietary information of the
Fund Company, all records and other information relative to the Fund Company
and prior, present or potential shareholders of the Fund Company (and clients
of said shareholders), and not to trade on non-public information received or
use such records and information for any purpose other than the performance of
its responsibilities and duties hereunder, except (i) after prior notification
to and approval in writing by the Fund Company, which approval shall not be
unreasonably withheld and may not be withheld where the Distributor may be
exposed to civil or criminal contempt proceedings for failure to comply, (ii)
when requested to divulge such information by duly constituted authorities, or
(iii) when so requested by the Fund Company. Records and other information
which have become known to the public through no wrongful act of the
Distributor or any of its employees, agents or representatives, and information
that was not known to be confidential that was already in the possession of the
Distributor prior to receipt thereof from the Fund Company or its agent, shall
not be subject to this paragraph provided that it may do so under applicable
law, the distributor shall promptly inform the Fund Company of any request for
information that the Distributor intends to disclose pursuant to clause (ii) of
this Section 8 so that the Fund Company may seek an appropriate protective
order and/or walk compliance with this Section 8.
Further, the Distributor will adhere to the privacy policies adopted
by the Fund Company pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may
be modified from time to time. In this regard, the Distributor shall have in
place and maintain physical, electronic and procedural safeguards reasonably
designed to protect the security, confidentiality and integrity of, and to
prevent unauthorized access to or use of, records and information relating to
the Fund Company and its shareholders.
9. RECORDS
The Distributor shall keep records relating to the services to be
performed hereunder in the form and manner, and for such period, as it may deem
advisable and is agreeable to the Fund Company, but not inconsistent with the
rules and regulations of appropriate government authorities, in particular,
Section 31 of the 1940 Act and the rules thereunder. The Distributor agrees
that all such records prepared or maintained by the Distributor relating to the
services to be performed by the Distributor hereunder are the property of the
Fund Company and will be preserved, maintained, and made available in
accordance with such applicable sections and rules of the 1940 Act and will be
promptly surrendered to the Fund Company or its designee on and in accordance
with its request.
10. COMPLIANCE WITH LAWS
The Fund Company has and retains primary responsibility for all
compliance matters relating to the Funds, including but not limited to
compliance with the 1940 Act, the Internal Revenue Code of 1986, the
Xxxxxxxx-Xxxxx Act of 2002, the USA Patriot Act of 2002 and the policies and
limitations of the Funds relating to its portfolio investments as set forth in
the Prospectus and statement of additional information. The Distributor's
services hereunder shall not relieve the Fund Company of their responsibilities
for assuring such compliance or the Board of Director's oversight
responsibility with respect thereto.
11. TERM OF AGREEMENT; AMENDMENT; ASSIGNMENT
A. This Agreement shall become effective with respect to each Fund
listed on Exhibit A hereof as of the date hereof and, with respect
to each Fund not in existence on that date, on the date an
amendment to Exhibit A to this Agreement relating to that Fund is
executed. Unless sooner terminated as provided herein, this
Agreement shall continue in effect for two years from the date
hereof. Thereafter, if not terminated, this Agreement shall
continue in effect automatically as to each Fund for successive
one-year periods, provided such continuance is specifically
approved at least annually by: (i) the Fund Company's Board, or
(ii) the vote of a "majority of the outstanding voting securities"
of a Fund, and provided that in either event, the continuance is
also approved by a majority of the Fund Company's Board who are not
"interested persons" of any party to this Agreement, by a vote cast
in person at a meeting called for the purpose of voting on such
approval.
B. Notwithstanding the foregoing, this Agreement may be terminated,
without the payment of any penalty, with respect to a particular
Fund: (i) through a failure to renew this Agreement at the end of a
term, (ii) upon mutual consent of the parties, or (iii) upon not
less than 60 days' written notice, by either the Fund Company upon
the vote of a majority of the members of its Board who are not
"interested persons" of the Fund Company and have no direct or
indirect financial interest in the operation of this Agreement, or
by vote of a "majority of the outstanding voting securities" of a
Fund, or by the Distributor. The terms of this Agreement shall not
be waived, altered, modified, amended or supplemented in any manner
whatsoever except by a written instrument signed by the Distributor
and the Fund Company. If required under the 1940 Act, any such
amendment must be approved by the Fund Company's Board, including a
majority of the Fund Company's Board who are not "interested
persons" of any party to this Agreement, by a vote cast in person
at a meeting for the purpose of voting on such amendment. In the
event that such amendment affects the Advisor, the written
instrument shall also be signed by the Advisor. This Agreement will
automatically terminate in the event of its "assignment."
C. As used in this Section, the terms "majority of the outstanding
voting securities," "interested person," and "assignment" shall
have the same meaning as such terms have in the 1940 Act.
D. Sections 7 and 8 shall survive termination of this Agreement.
12. DUTIES IN THE EVENT OF TERMINATION
In the event that, in connection with termination, a successor to any
of the Distributor's duties or responsibilities hereunder is designated by the
Fund Company by written notice to the Distributor, the Distributor will
promptly, upon such termination and at the expense of the Fund Company,
transfer to such successor all relevant books, records, correspondence, and
other data established or maintained by the Distributor under this Agreement in
a form reasonably acceptable to the Fund Company (if such form differs from the
form in which the Distributor has maintained the same, the Fund Company shall
pay any expenses associated with transferring the data to such form), and will
cooperate in the transfer of such duties and responsibilities, including
provision for assistance from the Distributor's personnel in the establishment
of books, records, and other data by such successor. If no such successor is
designated, then such books, records and other data shall be returned to the
Fund Company.
13. EARLY TERMINATION
In the absence of any material breach of this Agreement, should the
Fund Company elect to terminate this Agreement prior to the end of the term,
the Fund Company agrees to pay the following fees:
a. all monthly fees through the life of the contract, including the
rebate of any negotiated discounts;
b. all fees associated with converting services to successor service
provider;
c. all fees associated with any record retention and/or tax reporting
obligations that may not be eliminated due to the conversion to a
successor service provider;
d. all out-of-pocket costs associated with a-c above.
14. GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the
Commonwealth of Pennsylvania without regard to conflicts of law principles. To
the extent that the applicable laws of the Commonwealth of Pennsylvania, or any
of the provisions herein, conflict with the applicable provisions of the 1940
Act, the latter shall control, and nothing herein shall be construed in a
manner inconsistent with the 1940 Act or any rule or order of the SEC
thereunder.
15. NO AGENCY RELATIONSHIP
Nothing herein contained shall be deemed to authorize or empower
either party to act as agent for the other party to this Agreement, or to
conduct business in the name, or for the account, of the other party to this
Agreement.
16. SERVICES NOT EXCLUSIVE
Nothing in this Agreement shall limit or restrict the Distributor from
providing services to other parties that are similar or identical to some or
all of the services provided hereunder.
17. INVALIDITY
Any provision of this Agreement which may be determined by competent
authority to be prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction. In such case,
the parties shall in good faith modify or substitute such provision consistent
with the original intent of the parties.
18. NOTICES
Any notice required or permitted to be given by any party to the
others shall be in writing and shall be deemed to have been given on the date
delivered personally or by courier service, or three days after sent by
registered or certified mail, postage prepaid, return receipt requested, or on
the date sent and confirmed received by facsimile transmission to the other
parties' respective addresses as set forth below:
Notice to the Distributor shall be sent to:
Quasar Distributors, LLC
Attn: President
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Fax No.:_________________
notice to the Fund Company shall be sent to:
TIFF Investment Program, Inc.
Attention: President
000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxxxxxxxxxx, XX 00000
and notice to the Advisor shall be sent to:
TIFF Advisory Services, Inc.
Attention: General Counsel
000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxxxxxxxxxx, XX 00000
19. MULTIPLE ORIGINALS
This Agreement may be executed on two or more counterparts, each of
which when so executed shall be deemed to be an original, but such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by a duly authorized officer on one or more counterparts as of the
date first above written.
THE PARTIES HEREBY AGREE THAT THE DISTRIBUTION SERVICES PROVIDED BY
QUASAR DISTRIBUTORS, LLC HEREUNDER WILL COMMENCE ON JANUARY 1, 2008
TIFF INVESTMENT PROGRAM, INC. QUASAR DISTRIBUTORS, LLC
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------- -------------------------------
Name: Xxxx X. Xxxxxx Name: Xxxxx X. Xxxxxxxxx
----------------------------- -----------------------------
Title: Secretary Title: President
----------------------------- ----------------------------
TIFF ADVISOR SERVICES, INC.
(WITH RESPECT TO SECTION 5 ONLY)
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
-----------------------------
Title: Secretary
-----------------------------
EXHIBIT A
TO THE
DISTRIBUTION AGREEMENT
FUND NAMES
Separate Series of _____TIFF Investment Program, Inc._________________
Name of Series Date Added
-------------- ----------
TIFF Multi-Asset Fund
TIFF International Equity Fund
TIFF Equity Fund
TIFF Short-Term Fund
EXHIBIT B
TO THE
DISTRIBUTION AGREEMENT
FEE SCHEDULE
