Exhibit e
PLACEMENT AGENCY AGREEMENT
THIS PLACEMENT AGENCY AGREEMENT made as of the 2nd day of October, 2000 by
and between TT International U.S.A. Master Trust, a Massachusetts trust (the
"Trust") on behalf of its series TT EAFE Portfolio (the "Fund"), and FIRST FUND
DISTRIBUTORS, INC., a Delaware corporation (the "Placement Agent");
W I T N E S S E T H:
WHEREAS, the 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 Fund desires to engage the Placement Agent to serve as
placement agent for the beneficial interests (the "Interests") of the Fund; and
WHEREAS, TT International Investment Management, an English partnership
("TTI"), will serve as the investment manager of the Fund 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) The Fund hereby appoints the Placement Agent as exclusive
placement agent for the Interests, and the Placement Agent hereby accepts such
appointment and agrees to act hereunder directly and/or through the Fund's
transfer agent in the manner set forth in the 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
the Fund, from time to time during the term of this Agreement upon the terms
described in the current 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 the Registration Statement filed from time to time by the
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) The Fund may terminate, suspend, modify the terms and
conditions of, or withdraw the offering of Interests at any time. Nothing in
this Agreement shall require the 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 Registration Statement.
3. DUTIES OF THE FUND.
(a) Maintenance of Federal Registration. The 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 the Registration Statement under the 1940 Act. The 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 the Registration Statement, or necessary in order that there
may be no omission to state a material fact in the 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. The 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.
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 Fund 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 the TTI.
6. COMPENSATION. The Fund shall not be required to pay any
distribution fees or other amounts to the Placement Agent in consideration of
its performances under this Agreement.
7. INDEMNIFICATION.
(a) The Placement Agent agrees to indemnify and hold harmless the
Trust and the Fund 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 Fund 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 Fund 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 the Fund with
the SEC or authorized by the 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 the Fund by the Placement Agent. In no case (i) is the Placement Agent's
indemnity in favor of the Fund or any other person so indemnified to be deemed
to protect the 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 the Fund or any other person indemnified
hereunder unless the 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 the 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 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 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 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 Fund 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 Fund, such consent not to be unreasonably withheld.
8. AUTHORIZED REPRESENTATIONS. The Placement Agent is not authorized
by the Fund to give on behalf of the Fund any information or to make any
representations in connection with the sale of Interests other than the
information and representations contained in a 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 the
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 Fund, and the Fund agrees 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 Fund.
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 for a period of two years from the date
first above written. Thereafter, this Agreement shall continue in effect 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 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 Fund who are not parties to this Agreement or interested
persons of any such party. The Placement Agent shall furnish to the 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 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 the Fund such action shall have
been authorized by resolution of a majority of the Trustees of the 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 the 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 Fund 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 Fund 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 the 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 Fund
of responsibility for and control of the conduct of the affairs of the Fund.
The Placement Agent shall, as may be requested from time to time, meet with and
provide reports to the Trustees of the Fund 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. The 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 Fund 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 0000 X. Xxxxxxxxx Xxxx, Xxxxx 000X,
Xxxxxxx, Xxxxxxx 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 TRUSTEES. The obligations of this Agreement are not
binding upon any of the Trustees or investors of the Fund individually, but
bind only the trust estate of the 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
By: Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Trustee,President
FIRST FUND DISTRIBUTORS, INC.
By: Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Sr. V.P.
