exhibit e
AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT made as of the 1st day of
October, 2001 and amended and restated as of September 1, 2002 by and between
TT International U.S.A. Feeder Trust, a Massachusetts business trust (the
"Trust") on behalf of its series TT Active International Mutual Fund (formerly
known as, "TT EAFE Mutual Fund") and TT Europe Mutual Fund (each, a "Fund" and
collectively, the "Funds"), and QUASAR DISTRIBUTORS, LLC, a Delaware limited
liability company (the "Distributor");
W I T N E S S E T H:
WHEREAS, each Fund is registered as an open-end investment company
under the Investment Company Act of 1940 (the "1940 Act") and it is in the
interest of each 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 Funds and the Distributor have entered into an agreement
with each other, dated as of October 1, 2001 (the "Original Agreement"), with
respect to the continuous offering of the shares of beneficial interest (the
"Shares") of the Funds; and
WHEREAS, the Funds and the Distributor desire to amend and restate the
Original Agreement as provided herein; and
WHEREAS, each Fund has adopted a Service Plan pursuant to Rule 12b-1
under the 1940 Act (each, a "Service Plan") with respect to those classes of
Shares designated as having a Service Plan on Exhibit A hereto, and may enter
into related agreements providing for the distribution and servicing of Shares
covered thereby; and
WHEREAS, TT International Investment Management, an English
partnership ("TTI"), serves as the investment manager of the Funds and has
entered into a Distribution Fee Agreement, dated as of October 1, 2001, under
which TTI shall pay fees to 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) Each Fund hereby appoints the Distributor as agent to sell
and to arrange for the sale of its Shares, on the terms and for the period set
forth in this Agreement, provided the Funds 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 Funds' transfer agent in the manner set forth in the applicable
Prospectuses (as defined below). It is understood and agreed that the services
of the Distributor hereunder are not exclusive; the Distributor may act as
principal underwriter for the shares of any other registered investment
company, and the Trust may enter into agreements with other distributors with
respect to the sale of Shares.
(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
Funds, 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, with respect to a Fund, a prospectus and statement of
additional information included as part of that 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, with respect to a Fund, the Registration Statement filed from time to
time on behalf of that 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 one or both of the
Funds 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 Funds and the Distributor.
(b) The Distributor will hold itself available to receive
orders, satisfactory to the Distributor, for the purchase of the Shares of each
Fund 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 Funds'
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 applicable Prospectus. The Distributor shall not
make any short sales of Shares. Each Fund may terminate, suspend, modify the
terms and conditions of, or withdraw the offering of its 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 Funds shall furnish the Distributor, with all
possible promptness, an advice of each computation of net asset value and
offering price.
(d) The Distributor shall remit to certain third parties, as
directed by TTI or by any officer of the applicable Fund, payments permitted
under the Funds' Service Plans, for goods and services provided by such third
parties primarily intended to result in the sale of Shares, which activities
may include, but are not limited to (i) payments in respect of the sale of
Shares, (ii) payments for advertising, marketing or other promotional activity,
and (iii) payments for preparation, printing, and distribution of prospectuses
and statements of additional information and reports of the Funds for
recipients other than regulators and existing shareholders of the Trust.
(e) The Distributor shall have the right to enter into selected
dealer agreements with securities dealers approved by the Funds ("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 applicable 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 FUNDS.
(a) Maintenance of Federal Registration. Each 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 1933 Act.
Each 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 its Registration Statement or Prospectus, or necessary in
order that there may be no omission to state a material fact in its
Registration Statement or Prospectus which omission would make the statements
therein misleading. If a Fund notifies the Distributor that the effectiveness
of that Fund's Registration Statement has been suspended or that a current
Prospectus for the Fund 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. Each Fund shall,
at its expense, reasonably endeavor to qualify and maintain the qualification
of an appropriate number of its 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 a 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 its Shares in any state, to change the
terms of the offering of its Shares in any state from the terms set forth in
the applicable 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 its Shares. The Distributor shall
furnish such information and other material relating to its affairs and
activities as may be required by the Funds in connection with such
qualifications.
(c) Copies of Reports and Prospectuses. Each 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 the Fund's
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 Fund's
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 Funds 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.
(a) The Funds shall not be required to pay any distribution fees
or other amounts to the Distributor in consideration of their performances
under this Agreement. The Funds, in their sole discretion, however, may pay,
pursuant to and in accordance with the Service Plans, monies to the Distributor
as compensation for, or as reimbursement for or in anticipation of expenses
incurred or to be incurred by the Distributor in connection with, the sales of
Shares of the Funds.
(b) The Funds, in their sole discretion, may pay, pursuant to
and in accordance with the Service Plans, monies to the Distributor as
compensation to or as reimbursement for or in anticipation of expenses incurred
or to be incurred by third parties in connection with the sales of Shares of
the Funds. The Distributor agrees to remit such monies to such third parties
and to reimburse such amounts to the applicable Fund as directed by TTI or by
any officer of the applicable Fund. Any such payments to third parties shall be
deemed to have been made pursuant to this Agreement.
7. INDEMNIFICATION.
(a) The Distributor agrees to indemnify and hold harmless the
Trust and the Funds 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 Funds 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 Funds 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 a 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 a Fund by the Distributor. In no case (i) is the
Distributor's indemnity in favor of a Fund or any other person so indemnified
to be deemed to protect that 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 a Fund or any other person
indemnified hereunder unless that 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 a 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 applicable
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 applicable 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 applicable 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 Funds of the commencement of any
litigation or 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 applicable Fund, such consent not to be
unreasonably withheld.
8. AUTHORIZED REPRESENTATIONS. The Distributor is not authorized by
the Funds to give on behalf of either Fund any information or to make any
representations in connection with the sale of Shares other than the
information and representations contained in the applicable 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 applicable
shareholder reports or other material that may be prepared by or on behalf of a
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
applicable Fund, and the Funds agree 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.
9. TERM OF AGREEMENT. This Agreement shall continue in effect with
respect to a Fund 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 applicable 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 applicable Fund who are
not parties to this Agreement or interested persons of any such party. The
Distributor shall furnish to a 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 with
respect to a Fund or any class of Shares of a Fund at any time, without the
payment of any penalty, (i) by the Distributor, (ii) by vote of a majority of
the Trustees of the applicable Fund who are not interested persons of the Fund
and have no direct or indirect financial interest in the operation of the
Service Plans or in any agreements related to the Service Plans, or (iii) by
vote of a majority of the outstanding voting securities of that Fund or class,
as applicable, in each case on not more than upon 60 days' nor less than 30
days' prior notice in writing to the other party.
12 USE OF FUND AND TTI NAME. The Distributor acknowledges that it
has, no proprietary or other rights in the names or the Funds 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 Funds 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 a 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 Funds
of responsibility for and control of the conduct of the affairs of the Funds.
The Distributor shall, as may be requested from time to time but no less
frequently than quarterly, meet with or provide reports to the Trustees of the
Funds concerning the activities of the Distributor hereunder, including reports
regarding the amounts, purposes and recipients of payments under the Service
Plans received by the Distributor and retained by the Distributor or remitted
to third parties, if any.
(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. Each 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 Funds 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 Funds 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 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇. Notices to the Fund should be sent c/o Investors Bank & Trust Company,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, with a copy to Head of Compliance, TT
International Investment Management, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇ 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 FUNDS AND TRUSTEES. Each party acknowledges and
agrees that all obligations of each Fund under this Agreement are binding only
with respect to that Fund; that any liability of a Fund under this Agreement,
or in connection with the transactions contemplated herein, shall be discharged
only out of the assets of that Fund; and that no other series of the Trust
shall be liable with respect to this Agreement or in connection with the
transactions contemplated herein. The obligations of this Agreement are not
binding upon any of the Trustees or shareholders of the Funds individually, but
bind only the trust estate of the applicable 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 as of September 1, 2002.
TT INTERNATIONAL U.S.A. FEEDER TRUST, on behalf
of its series TT Active International Mutual
Fund and TT Europe Mutual Fund
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
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Name: S. A ▇▇▇▇▇▇▇
Title: Secretary
QUASAR DISTRIBUTORS, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
EXHIBIT A
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FUND CLASSES HAVING ADOPTED A SERVICE PLAN
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TT Active International Mutual Fund Class 1
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Class 2
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Class 3
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TT Europe Mutual Fund Class 1
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Class 2
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Class 3
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