DISTRIBUTION AGREEMENT
This Agreement made as of the 1st day of January, 2000 by and among
TIFF INVESTMENT PROGRAM, INC. a Maryland corporation (the "Fund"), INVESTORS
BANK & TRUST COMPANY, a Massachusetts Trust Company (the "Bank") and FIRST
FUND DISTRIBUTORS, INC., a Delaware corporation (the "Distributor").
W I T N E S S E T H:
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WHEREAS, the Fund is registered as an open-end management
investment company under the Investment Company Act of 1940 (the "1940 Act");
and it is in the interest of the Fund to offer its shares for sale
continuously;
WHEREAS, the Fund offers six series of shares of common stock and
may offer additional series in the future (each, a "series" and collectively,
the "series"), which will have been registered under the Securities Act of
1933 (the "1933 Act");
WHEREAS, the Bank is an affiliate of the Fund's Administrator;
WHEREAS, the Distributor is registered as a broker-dealer under the
Securities Exchange Act of 1934 (the "1934 Act") and is a member in good
standing of the National Association of Securities Dealers, Inc. (the
"NASD"); and
WHEREAS, the Fund, the Bank and the Distributor wish to enter into
an agreement with each other with respect to the continuous offering of the
shares of each existing and future series (the "Shares") of the Fund;
NOW, THEREFORE, the parties agree as follows:
1. Appointment of Distributor. The Fund hereby appoints the
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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, and 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). This appointment applies to each existing
series of Shares as well as any future series, provided that (i) the Fund does
not object to the Distributor in writing on any basis and (ii) the Distributor
does not object to the Fund and the Bank in writing on the basis of the
capabilities of the Distributor. In return for the services to be performed by
the Distributor hereunder, the Distributor shall be paid in the manner agreed to
by the parties hereto. 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.
2. Services and Duties of the Distributor.
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(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 a 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 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.
(b) Upon commencement of operations of any series, 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
s 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 series' Prospectuses.
The Distributor shall not make any short sales of Shares.
(c) The offering price of the Shares shall be the net asset
value per tare of the Shares, plus the sales charge, if any (determined as set
forth in the Prospectuses). 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, with the prior
written agreement of the Fund, to enter into selected dealer agreements with
securities dealers of its choice ("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 Prospectuses. The Distributor
shall offer and sell Shares only to such selected dealers as are members in good
standing of the NASD, unless such dealers are not eligible for membership in the
NASD.
3. Representations and Warranties of the Distributor.
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(a) The Distributor is a corporation duly organized, validly
existing and in good standing under the laws of the state of Delaware awl has
full power and authority, corporate and otherwise, to consummate the
transactions contemplated by this Agreement. The Distributor is duly qualified
to carry out its business, and is in good standing, in any state where such
qualification is required for the Distributor to carry out its duties under this
Agreement.
(b) Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will violate any
provision of the Certificate of lncorporation or By-Laws of the Distributor.
(c) The Distributor is registered as a broker-dealer under the
1934 Act and is a member of the NASD.
4. Duties of the Fund.
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(a) Maintenance of Federal Registration. The Fund shall, at
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its expense, take, from time to time, 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 maybe necessary in order that there maybe 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.
(b) Maintenance of "Blue Sky" Qualifications. The Fund shall,
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at its expense, use its best efforts 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 or the series as a broker or dealer in such states; provided that
the Fund shall not be required to amend its Articles of Incorporation or By-Laws
to comply with the laws of any state, to maintain an office in any state, to
change the terms of the offering of the Shares in any state from the terms set
forth in the Prospectuses, to qualify as a foreign Fund 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 reasonably required by the Fund or its series in connection
with such qualifications.
(c) Copies of Reports and Prospectuses. The Fund shall, at its
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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.
5. Expenses. Expenses connected with the Fund shall be allocable
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between the Fund and the Distributor as follows:
(a) The Distributor shall furnish, at its expense and without
cost to
the Fund, the services of personnel to the extent that such services are
required to carry out its obligations under this Agreement.
(b) The Fund assumes and shall pay or cause to be paid all
other expenses of the Fund, including, without limitation: the fees of the
Fund's investment adviser; the charges and expenses of any registrar, any
custodian or depository appointed by the Fund for the safekeeping of its cash,
portfolio securities and other property, and any stock transfer, dividend or
accounting agent or agents appointed by the Fund; the fees of any Fund
administrator; brokers' commissions chargeable to the Fund in connection with
portfolio securities transactions to which the Fund is a party, any fee paid
pursuant to any distribution plan, if and when adopted by the Fund pursuant to
Rule 12b-1 under the 1940 Act; all taxes, including securities issuance and
initial transfer taxes, and corporate fees payable by the Fund to federal, state
or other governmental agencies; all costs and expenses in connection with the
organization of the Fund and the series and the registration of the Shares with
the SEC and under state securities laws and in connection with maintenance of
registration of the Fund, series and the Shares with the SEC and various states
and other jurisdictions (including filing fees and legal fees and disbursements
of counsel); the expenses of printing, including printing setup charges, and
distributing Prospectuses of the Fund and supplements thereto to the Fund's
shareholders; all expenses of shareholders' and Directors' meetings and of
preparing, printing and mailing of proxy statements and reports to shareholders;
fees and travel expenses of Directors who are not interested persons (as such
term is defined in the 0000 Xxx) of the Fund ("Non-Interested Directors") or
members of any advisory board or committee established by the Non-Interested
Directors; all expenses incident to the payment of any dividend, distribution,
withdrawal or redemption, whether in Shares or in cash; charges and expenses of
any outside service used for pricing of the Fund's Shares; charges and expenses
of legal counsel to the Fund and to the Non-Interested Directors, and of
independent accountants to the Fund, in connection with any mailer relating to
the Fund; membership dues paid by the Fund to industry associations; interest
payable on Fund borrowings; postage; insurance premiums on property or personnel
(including officers and directors) of the Fund which inure to its benefit;
extraordinary expenses of the Fund (including, but not limited to, legal claims
and liabilities and litigation costs and any indemnification related thereto);
and all other charges and costs of the Fund's operation unless otherwise.
6. Conformity with Applicable Law and Rules. The Distributor agrees
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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 maybe offered, and with
applicable rules and regulations of the NASD.
7. Independent Contractor. In performing its duties hereunder, the
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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.
8. Indemnification.
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(a) Indemnification of Fund. The Distributor agrees to
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indemnify and hold harmless the Fund and each of its present or former
Directors, officers, employees, representatives and each person, if any, who
controls or previously controlled the Fund within the meaning of Section 15 of
the 1933 Act 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 by the Distributor or any of the
Distributor's directors, officers, employees or representatives (including,
without limiting the forgoing, any wrongful or unauthorized sales activities of
the Distributor or any of its registered representatives, as defined under the
By-Laws of the NASD, including any failure to conform with any requirement of
any state or federal law relating to the sale of Shares), 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. The Distributor shall also indemnify and hold harmless the Fund,
its officers and directors and control persons from any liability to the Fund or
to the holders of Shares by reason of the Distributor's willful misfeasance, bad
faith or gross negligence in the performance of its duties or by reason of its
reckless disregard of its obligations and duties under this Agreement. In no
case (i) is the Distributor's indemnity in favor of the Fund, or any person
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 gross negligence in the performance
of the Fund's or such person's duties or by reason of reckless 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
Paragraph with respect to any claim made against the Fund or any person
indemnified 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
Paragraph.
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 brought to enforce any such claim, 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 the persons indemnified, as defendant or defendants in the 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 the persons indemnified defendant or
defendants in such suit for the reasonable fees and expenses of any legal
counsel retained by them and will provide advances for payment of the reasonable
expenses incurred by them in connection with the matters as to which it or they
axe seeking indemnification in the matter and to the fullest extent permissible
by law. 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.
(b) Indemnification of the Distributor. The Fund agrees to
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indemnify and hold harmless the Distributor and each of its present or former
directors, officers, employees, representatives and each person, if any, who
controls or previously controlled the Distributor within the meaning of Section
15 of the 1933 Act against any and all losses, liabilities, damages, claims or
expenses (including the reasonable costs of investigating or defending any
alleged loss, liability, damage, claim or expense and reasonable legal counsel
fees incurred in connection therewith) to which the Distributor 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 by the Fund or any of the Fund's
Directors, officers, employees or representatives (including, without limiting
the foregoing, any wrongful or unauthorized sales activities of the Fund, as
defined under the By-Laws of the NASD, including any failure to conform with any
requirement of any state or federal law relating to the sale of Shares), 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 unless such statement or omission was made
in reliance upon and in conformity with information furnished to the Fund by the
Distributor. The Fund shall also indemnify and hold harmless the Distributor,
its officers and directors and control persons from any liability to the Fund or
to the holders of Shares by reason of the Fund's willful misfeasance, bad faith
or gross negligence in the performance of its duties or by reason of its
reckless disregard of its obligations and duties under this Agreement. In no
case (i) is the Fund's indemnity in favor of the Distributor, or any person
indemnified to be deemed to protect the Distributor or such indemnified person
against any liability to which the Distributor or such person would otherwise be
subject by reason of willful misfeasance,
bad faith, or gross negligence in the performance of such person's duties or by
reason of reckless disregard of such person's obligations and duties under this
Agreement or (ii) is the Fund to be liable under their indemnity agreement
contained in this Paragraph with respect to any claim made against Distributor,
or person indemnified unless the Distributor, or such person, as the case may
be, shall have notified the Fund 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 Distributor or upon such
person (or after the Distributor or such person shall have received notice of
such service on any designated agent). However, failure to notify the Fund of
any such claim shall not relieve the Fund from any liability which the Fund may
have to the Distributor or any person against whom such action is brought
otherwise than on account of the Fund's indemnity agreement contained in this
Paragraph.
The Fund shall be entitled to participate, at its own expense,
in the defense, or, if the Fund so elects, to assume the defense of any suit
brought to enforce any such claim, but if the Fund elects to assume the defense,
such defense shall be conducted by legal counsel chosen by the Fund and
satisfactory to the Distributor and to the persons indemnified as defendant or
defendants, in the suit. In the event that the Fund elects to assume the defense
of any such suit and retain such legal counsel, the Distributor, the persons
indemnified as defendant or defendants in the suit, shall bear the fees and
expenses of any additional legal counsel retained by them. If the Fund does not
elect to assume the defense of any such suit, the Fund will reimburse the
Distributor and the persons indemnified as defendant or defendants in such suit
for the reasonable fees and expenses of any legal counsel retained by them and
will provide advances for payment of the reasonable expenses incurred by them in
connection with the matters as to which it or they are seeking indemnification
in the matter and to the fullest extent permissible by law. The Fund agrees to
promptly notify the Distributor of the commencement of any litigation or
proceedings against it or any of its Directors, officers, employees or
representatives in connection with the issue or sale of any Shares.
9. Authorized Representations. The Distributor is not
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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 maybe 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. 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.
10. Term of Agreement. The term of this Agreement shall begin
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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 Directors of the
Fund or by vote of a majority of the outstanding voting securities of each sales
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 Directors 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.
11. Amendment or Assignment of Agreement. This Agreement may
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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.
12. Termination of Agreement.
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by the Fund, the Bank or the Distributor, without the payment of any penalty,
upon 60 days' prior notice in writing to the other parties; provided, that in
the case of termination by the Fund such action shall have been authorized by
resolution of a majority of the Directors 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 each series of the Fund.
13. Miscellaneous. The captions in this Agreement are included
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for convenience of reference only and in no way define or delineate any of the
provisions hereof or otherwise affect their construction or effect.
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.
Nothing herein contained shall be deemed to require the Fund
to take any action contrary to its Articles of Incorporation 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 Directors of the Fund
of responsibility for and control of the conduct of the affairs of the Fund.
14. Definition of Terms. Any question of interpretation of any
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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 Paragraphs 8, 9 and 10 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
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it is registered as an open-end management investment company under the 1940
Act, and agrees that it will materially comply with all the provisions of the
1940 Act and of the rules and regulations thereunder. The Fund and the
Distributor each agree to comply with all of the applicable terms and provisions
of the 1940 Act, the 1933 Act 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.
16. Confidentiality. The Distributor agrees on behalf of
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itself and its directors, officers and employees to treat confidentially and as
proprietary information of the Fund all records and other information relative
to the Fund and its prior, present or potential shareholders, and not to use
such records and information for any purpose other than performance of its
responsibilities hereunder, except after prior notification to and approval in
writing by the Fund, which approval shall not be unreasonably withheld when
requested to divulge such information by duly constituted authorities and may
not be withheld when the Distributor would be exposed to civil or criminal
contempt proceedings for failure to comply, and the Distributor shall disclose
all such records and information to the Fund's investment adviser and other
service providers upon request.
17. Notices. Any notice required to be given pursuant to this
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Agreement shall be deemed duly given if delivered or mailed by registered mail,
postage prepaid, to the Distributor at 0000 X. Xxxxxxxxx Xxxx, Xxxxx 000-X,
Xxxxxxx, Xxxxxxx, 00000; to the Bank at 000 Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000,
Attn: Xxxxx Xxxxxx, Director, Mutual Fund Administration, with a copy to Xxxxxx
Xxxxx; Assistant General Counsel; or to the Fund at The Investment Fund for
Foundations, 0000 Xxx Xxxx, Xxxxxxxxxxxxxxx, XX 00000, Attn: Xxxxxx Xxxx.
18. Governing Law. This Agreement shall be governed and
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construed in accordance with the laws of the State of New York, without regard
to its conflict of laws provisions.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their officers designated below on the date first
written above.
TIFF INVESTMENT PROGRAM, INC
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Treasurer
INVESTORS BANK & TRUST COMPANY, solely for
purposes of Sections 10 and 14 hereof
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Director
FIRST FUND DISTRIBUTORS, INC
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President
FEE SCHEDULE
TO
DISTRIBUTION AGREEMENT
AMONG
TIFF INVESTMENT PROGRAM, INC., INVESTORS BANK & TRUST COMPANY
AND
FIRST FUND DISTRIBUTORS, INC.
DATED JANUARY 1, 2000
(THE "AGREEMENT")
First Fund Distributors, Inc. (the "Distributor"), as distributor to TIFF
Investment Program, Inc., (the `Fund"), shall be entitled to compensation for
its services under the Agreement from Investors Bank & Trust Company (the
`Bank"), as administrator to the Fund, as follows:
The Distributor shall receive compensation in the amount of $25,000 per annum,
to be paid no less frequently than monthly, payable in arrears by the Bank. In
addition, the Distributor will be entitled to reimbursement of reasonable
out-of-pocket expenses incurred (including but not limited to NASD filing fees
incurred pursuant to this Agreement) within 10 days of delivery of a valid
invoice.
TIFF INVESTMENT PROGRAM, INC
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Treasurer
INVESTORS BANK & TRUST COMPANY, solely for
purposes of Sections 10 and 14 hereof
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Director
FIRST FUND DISTRIBUTORS, INC
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President
