Exhibit e
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT made as of the 2nd day of October,
2000 by and between TT International U.S.A. Feeder Trust, a Massachusetts
business trust (the "Trust") on behalf of its series TT EAFE 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 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; and
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 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 of even date herewith 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 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, 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 the 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 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 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
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 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 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 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 EAFE Mutual Fund
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.
