DISTRIBUTION AGREEMENT
In consideration of the agreements hereinafter contained, TIFF
Investment Program, Inc. ("TIP"), an open-end, management investment company
organized as a corporation under the laws of the State of Maryland, has agreed
that AMT Capital Services, L.L.C. ("AMT Capital") shall be, for the period of
this Agreement, the exclusive distributor of shares of TIP (the "Shares").
1. Services as Distributor
1 AMT Capital will act as agent for the distribution of the Shares covered by
the registration statement, prospectus and statement of additional information,
all as defined hereafter in Section 3 for TIP then in effect under the
Securities Act of 1933, as amended (the "1933 Act"), and the Investment Company
Act of 1940, as amended (the "1940 Act").
2 AMT Capital agrees to use its best efforts to solicit orders
for the sale of the Shares at the
public offering price, as determined in accordance with the
registration statement, and will undertake such advertising
and promotion as it believes is reasonable in connection
with such solicitation. AMT Capital shall file such
materials with the Securities and Exchange Commission (the
"SEC") and the National Association of Securities Dealers,
Inc. (the "NASD") to the extent required by the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the
1940 Act and the rules and regulations thereunder, and by
the rules of the NASD.
3 All activities by AMT Capital as distributor of the Shares shall comply with
all applicable laws, rules and regulations, including, without limitation, all
rules and regulations made or adopted by the SEC or by any securities
association registered under the 1934 Act.
4 AMT Capital acknowledges that the only information
provided to it by TIP is that contained in
the registration statement, the prospectus, the statement of
additional information and reports and financial information
referred to in Section 2.2 herein. Neither AMT Capital nor
any other person is authorized by TIP to give any
information or to make any representations, other than those
contained in such documents and any sales literature or
advertisements approved by appropriate representatives of
TIP.
5 AMT Capital will transmit any orders received by it for purchase or redemption
of shares of TIP to Investors Bank & Trust Company ("IBT") or any successor
transfer agent and dividend disbursing agent of which ▇▇▇ has notified AMT
Capital in writing.
6 AMT Capital will provide to IBT or any successor to IBT of which ▇▇▇ has
notified AMT Capital in writing, or in the alternative to a shareholder
servicing agent approved by the Board of Directors of TIP, and of which
shareholder servicing agent AMT Capital has received written notice, such
information or documents that it may require or request from time to time in
connection with purchases and redemptions of Shares and the establishment of
accounts.
1.7 AMT Capital acknowledges that, whenever in the judgment of
TIP's officers such action is warranted for any reason, including, without
limitation, market, economic or political conditions, those officers may decline
to accept any orders for, or make any sales of, the Shares until such time as
those officers deem it advisable to accept such orders and to make such sales.
1.8 AMT Capital will act only on its own behalf as principal
should it choose to enter into selling agreements with selected dealers or other
parties.
2. Duties of TIP 1.
1 TIP agrees at its own expense to execute any and all documents, to furnish any
and all information and to take any other actions that may be reasonably
necessary in connection with the qualification of the Shares for sale in those
states that AMT Capital may designate.
2 TIP shall furnish from time to time such information
and/or reports with respect to TIP and the
Shares as AMT Capital may reasonably request, all of which
shall be signed by one or more of TIP's duly authorized
officers; and TIP warrants that the statements contained in
any such reports, when so signed by one or more of TIPs'
officers, shall be true and correct. TIP shall also furnish
AMT Capital upon request with: (a) annual audit reports of
TIP's books and accounts made by independent public
accountants regularly retained by TIP, (b) semiannual
unaudited financial statements pertaining to TIP, (c)
quarterly earnings statements prepared by TIP, (d) monthly
itemized lists of the securities in the portfolios of TIP,
(e) monthly balance sheets as soon as practicable after the
end of each month and (f) from time to time such additional
information regarding TIP's financial condition as AMT
Capital may reasonably request.
3. Representations and Warranties 1.
TIP represents to AMT Capital that all registration
statements, prospectuses and statements of additional information filed by TIP
with the SEC under the 1933 Act and the 1940 Act with respect to the Shares have
been carefully prepared in conformity with the requirements of the 1933 Act, the
1940 Act and the rules and regulations of the SEC thereunder. As used in this
Agreement the terms "registration statement", "prospectus" and "statement of
additional information" shall mean any registration statement, prospectus and
statement of additional information filed by TIP with the SEC and any amendments
and supplements thereto which at any time shall have been filed with the SEC.
TIP represents and warrants to AMT Capital that any registration statement,
prospectus and statement of additional information, when such registration
statement becomes effective, will include all statements required to be
contained therein in conformity with the 1933 Act, the 1940 Act and the rules
and regulations of the SEC; that all statements of fact contained in any
registration statement, prospectus or statement of additional information will
be true and correct when such registration statement becomes effective; and that
neither any registration statement nor any prospectus or statement of additional
information when such filing becomes effective will include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading to a
purchaser of the Shares of TIP.
AMT Capital may, but shall not be obligated to, propose from
time to time such amendment or amendments to any registration statement and such
supplement or supplements to any prospectus or statement of additional
information as, in the light of future developments, may, in the opinion of AMT
Capital's counsel, be necessary or advisable. If TIP shall not propose such
amendment or amendments and/or supplement or supplements within fifteen days
after receipt by TIP of a written request from AMT Capital to do so, AMT Capital
may, at its option, terminate this Agreement. TIP shall not file any amendment
to any registration statement or supplement to any prospectus or statement of
additional information without giving AMT Capital reasonable notice thereof in
advance; provided, however, that nothing contained in this Agreement shall in
any way limit TIPs' right to file at any time such amendments to any
registration statement and/or supplements to any prospectus or statement of
additional information, of whatever character, as TIP may deem advisable, such
right being in all respects absolute and unconditional.
4. Expenses
AMT Capital shall furnish, at its expense and without cost to
TIP, the services of personnel to the extent that such services are required to
carry out its obligations under this Agreement.
5. Indemnification
1 TIP authorizes AMT Capital and any dealers
with whom AMT Capital has entered into dealer
agreements to use any prospectus or statement of additional
information furnished by TIP from time to time, in
connection with the sale of Shares of TIP. TIP agrees to
indemnify, defend and hold AMT Capital, its several officers
and directors, and any person who controls AMT Capital
within the meaning of Section 15 of the 1933 Act, free and
harmless from and against any and all claims, demands,
liabilities and expenses (including the cost of
investigating or defending such claims, demands or
liabilities and any counsel fees incurred in connection
therewith) which AMT Capital, its officers and directors, or
any such controlling person, may incur under the 1933 Act,
the 1940 Act or common law or otherwise, arising out of or
based upon any untrue statement or alleged untrue statement
of a material fact contained in any registration statement,
any prospectus or any statement of additional information,
or arising out of or based upon any omission or alleged
omission to state a material fact required to be stated in
any registration statement, any prospectus or any statement
of additional information, or necessary to make the
statements in any of them not misleading; provided, however,
that TIP's agreement to indemnify AMT Capital, its officers
and directors, and any such controlling person shall not be
deemed to cover any claims, demands, liabilities or expenses
arising out of or based upon any statements or
representations made by AMT Capital or its representatives
or agents other than such statements and representations as
are contained in any registration statement, prospectus or
statement of additional information and in such financial
and other statements as are furnished to AMT Capital
pursuant to paragraph 2.2 hereof; and further provided that
TIP's agreement to indemnify AMT Capital and TIP's
representations and warranties hereinbefore set forth in
paragraph 3 shall not be deemed to cover any liability to
TIP or its shareholders to which AMT Capital would otherwise
be subject by reason of willful misfeasance, bad faith or
gross negligence in the performance of its duties, or by
reason of AMT Capital's reckless disregard of its
obligations and duties under this Agreement. TIP's
agreement to indemnify AMT Capital, its officers and
directors, and any such controlling person, as aforesaid, is
expressly conditioned upon TIP's being notified of any
action brought against AMT Capital, its officers or
directors, or any such controlling person, such notification
to be given by letter or by telegram addressed to TIP at its
principal office in Charlottesville, Virginia and sent to
TIP by the person against whom such action is brought,
within ten days after the summons or other first legal
process shall have been served. The failure so to notify
TIP of any such action shall not relieve TIP from any
liability that TIP may have to the person against whom such
action is brought by reason of any such untrue or alleged
untrue statement or omission or alleged omission otherwise
than on account of ▇▇▇'s indemnification agreement contained
in this paragraph 5.1. TIP's indemnification agreement
contained in this paragraph 5.1 and TIP's representations
and warranties in this Agreement shall remain operative and
in full force and effect regardless of any investigation
made by or on behalf of AMT Capital, its officers and
directors, or any controlling person, and shall survive the
delivery of any of TIP's shares. This agreement of
indemnity will inure exclusively to AMT Capital's benefit,
to the benefit of its several officers and directors, and
their respective estates, and to the benefit of the
controlling persons and their successors. ▇▇▇ agrees to
notify AMT Capital promptly of the commencement of any
litigation or proceedings against ▇▇▇, FAI, or any of their
officers, directors, or employees in connection with the
issuance and sale of any of TIP's Shares.
2 AMT Capital agrees to indemnify, defend and hold TIP, its
several officers and directors, and
any person who controls TIP within the meaning of Section 15
of the 1933 Act, free and harmless from and against any and
all claims, demands, liabilities and expenses (including the
costs of investigating or defending such claims, demands or
liabilities and any counsel fees incurred in connection
therewith) that TIP, its officers and directors or any such
controlling persons may incur under the 1933 Act, the 1940
Act or common law or otherwise, but only to the extent that
such liability or expense incurred by TIP, its officers or
directors or such controlling person resulting from such
claims or demands shall arise out of or be based upon (a)
any unauthorized sales literature, advertisements,
information, statements or representations used or made by
AMT Capital not accurately reflecting information in the
registration statement, prospectus, Statement of Additional
Information, or information furnished to AMT Capital by TIP
under Section 2.2 hereof, or (b) any untrue or alleged
untrue statement of a material fact contained in
information, furnished in writing by AMT Capital to TIP and
used in the answers to any of the items of the registration
statement or in the corresponding statements made in the
prospectus or statement of additional information, or shall
arise out of or be based upon any omission or alleged
omission to state a material fact in connection with such
information furnished in writing by AMT Capital to TIP and
required to be stated in such answers or necessary to make
such information not misleading, provided, however, that AMT
Capital's agreement to indemnify TIP and AMT Capital's
representations and warranties herein before set forth in
paragraph 3 shall not be deemed to cover any liability to
AMT Capital to which TIP would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence
in the performance of its duties, or by reason of TIP's
reckless disregard of its obligations and duties under this
Agreement. AMT Capital's agreement to indemnify TIP, its
officers and directors, and any such controlling person, as
aforesaid, is expressly conditioned upon AMT Capital's being
notified of any action brought against FAI or TIP, its
officers or directors, or any such controlling person, such
notification to be given by letter or telegram addressed to
AMT Capital at its principal office in New York, New York
and sent to AMT Capital by the person against whom such
action is brought, within ten days after the summons or
other first legal process shall have been served. The
failure to so notify AMT Capital of any such action shall
not otherwise relieve AMT Capital from any liability that
AMT Capital may have to TIP, its officers or directors, or
to such controlling person by reason of any such untrue or
alleged untrue statement or omission or alleged omission on
account of AMT Capital's indemnification agreement contained
in this paragraph 5.2. AMT Capital agrees to notify TIP
promptly of the commencement of any litigation or
proceedings against AMT Capital or any of its officers or
directors in connection with the issuance and sale of any of
TIP's shares.
3 In case any action shall be brought against any party
indemnified under paragraph 5.1 or 5.2,
and such party shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it shall
wish to do so, to assume the defense thereof with counsel
satisfactory to such indemnified party. If the indemnifying
party opts to assume the defense of such action, the
indemnifying party will not be liable to the indemnified
party for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense
thereof other than (a) reasonable costs of investigation or
the furnishing of documents or witnesses and (b) all
reasonable fees and expenses of separate counsel to such
indemnified party if (i) the indemnifying party and the
indemnified party shall have agreed to the retention of such
counsel or (ii) the indemnified party shall have concluded
reasonably that representation of the indemnifying party and
the indemnified party by the same counsel would be
inappropriate due to actual or potential differing interests
between them in the conduct of the defense of such action.
6. Effectiveness of Registration
None of the Shares shall be offered by AMT Capital or TIP
under any of the provisions of this Agreement and no orders for the purchase or
sale of the Shares hereunder shall be accepted by AMT Capital or TIP if and so
long as the effectiveness of the registration statement then in effect or any
necessary amendments thereto shall be suspended under any of the provisions of
the 1933 Act or if and so long as a current prospectus as required by Section
5(b)(2) of the 1933 Act is not on file with the SEC; provided, however, that
nothing contained in this paragraph 6 shall in any way restrict or have an
application to or bearing upon TIP's obligation to repurchase its Shares from
any shareholder in accordance with the provisions of TIP's prospectus, statement
of additional information or articles of incorporation.
7. Notice to AMT Capital
▇▇▇ agrees to advise AMT Capital
immediately
in writing:
(a) of any request by the SEC for amendments to the registration statement,
prospectuses or statements of additional information then in effect or for
additional information;
(b) in the event of the issuance by the SEC of any stop order suspending the
effectiveness of the registration statement then in effect or the initiation of
any proceeding for that purpose;
(c) of the happening of any event that makes untrue any statement of a material
fact made in the registration statement, prospectus or statement of additional
information then in effect or that requires the making of a change in such
registration statement, prospectus or statement of additional information in
order to make the statements therein not misleading; and
(d) of all actions of the SEC with respect to any amendment to any registration
statement, prospectus or statement of additional information which may from time
to time be filed with the SEC.
8. Term of Agreement
This Agreement shall continue until two years after the date
of this Agreement, and thereafter shall continue automatically for successive
annual periods, provided such continuance is specifically approved at least
annually by (i) TIP's Board of Directors, or (ii) by a vote of a majority (as
defined in the 1940 Act) of the outstanding voting securities of the relevant
Funds of TIP, provided that in either event the continuance is also approved by
the majority of the Directors of TIP who are not interested persons (as defined
in the 1940 Act) of any party to this Agreement, by vote cast in person at a
meeting called for the purpose of voting on such approval. This Agreement is
terminable, without penalty, on 60 days' notice by TIP's Board of Directors, by
vote of the holders of a majority of TIP's Shares, or on 60 days' notice by AMT
Capital. This Agreement will also terminate automatically in the event of its
assignment (as defined in the 1940 Act).
Please confirm that the foregoing is in accordance with your
understanding by indicating your acceptance thereof at the place below
indicated, whereupon it shall become a binding agreement between us.
Very truly yours,
TIFF INVESTMENT PROGRAM, INC.
By:
/s/▇▇▇▇▇ ▇. Salem
▇▇▇▇▇ ▇. Salem
President
Accepted:
AMT CAPITAL SERVICES, L.L.C.
By:
/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Financial Operations Principal
Date: May , 1998
