EXHIBIT E
FORM OF DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT made as of the ___day of ________, ______ by
and between TT International U.S.A. Feeder Trust, a Massachusetts business
trust (the "Trust") on behalf of its series TT Europe Mutual Fund (the "Fund"),
and FIRST FUND DISTRIBUTORS, INC., a Delaware corporation (the "Distributor");
W I T N E S S E T H:
WHEREAS, the Fund is registered as an openend management investment
company under the Investment Company Act of 1940 (the "1940 Act") and it is in
the interest of the Fund to offer its shares for sale continuously; and
WHEREAS, the Distributor is registered as a brokerdealer 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 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 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 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) The Fund hereby appoints the Distributor as exclusive agent
to sell and to arrange for the sale of the Shares, on the terms and for the
period set forth in this Agreement, provided the Fund 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 Fund's transfer agent in the manner set forth in
the 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
Fund, 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 a prospectus and statement of additional information
included as part of the 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 the Registration
Statement filed from time to time by the 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 the
Fund 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 Fund and the Distributor.
(b) Upon commencement of operations of the Fund, the Distributor
will hold itself available to receive orders, satisfactory to the Distributor,
for the purchase of the Shares 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 Fund's 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 Prospectus. The Distributor
shall not make any short sales of Shares. The Fund may terminate, suspend,
modify the terms and conditions of, or withdraw the offering of 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 Fund 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 Fund ("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 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 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 register
and maintain registration of a sufficient number of Shares under the 0000 Xxx.
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 a Registration Statement or Prospectus, or necessary in
order that there may be no omission to state a material fact in the
Registration Statement or Prospectus which omission would make the statements
therein misleading. If the Fund notifies the Distributor that the effectiveness
of the Fund's Registration Statement has been suspended or that a current
Prospectus 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. The Fund shall, at
its expense, reasonably endeavor to qualify and maintain the qualification of
an appropriate number of 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 the Fund shall
not be required to amend its Agreement and Declaration of Trust or ByLaws to
comply with the laws of any state, to maintain an office in any state, to
change the terms of the offering of the Shares in any state, to change the
terms of the offering of the Shares in any state from the terms set forth in
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 the Shares. The Distributor shall furnish such
information and other material relating to its affairs and activities as may be
required by the Fund in connection with such qualifications.
(c) Copies of Reports and Prospectuses. The 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 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 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 Fund 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 Fund shall not be required to pay any
distribution fees or other amounts to the Distributor in consideration of its
performances under this Agreement.
7. INDEMNIFICATION.
(a) The Distributor 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 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 the 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 the Fund by the Distributor. In no
case (i) is the Distributor'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 Distributor 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 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 the 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 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 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 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 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 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 Fund, such consent
not to be unreasonably withheld.
8. AUTHORIZED REPRESENTATIONS. The Distributor 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 Shares other than the
information and representations contained in a 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 shareholder reports or other
material that may be prepared by or on behalf of the 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 Fund, and the Fund agrees
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 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 Distributor 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 Distributor acknowledges that it
has, no proprietary or other rights in the name of 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 Distributor 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 ByLaws, 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 Distributor 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
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. The Fund represents that it is
registered as an openend 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 Distributor. The Fund
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 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 shareholders 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. FEEDER TRUST, on
behalf of its series TT Europe Mutual Fund
By:________________________________________
Name:
Title:
FIRST FUND DISTRIBUTORS, INC.
By:________________________________________
Name:
Title:
