EXHIBIT 5(b)
SECOND AMENDED AND RESTATED PLACEMENT AGENT AGREEMENT
AGREEMENT made as of December __, 1999, between QUANTITATIVE MASTER
SERIES TRUST, a Delaware business trust (the "Trust"), on behalf of its series
listed on Appendix A attached hereto, as such Appendix may be amended from time
to time, (the "Series"), and PRINCETON FUNDS DISTRIBUTOR, INC., a Delaware
corporation (the "Placement Agent"). The obligations of each Series hereunder
shall be limited to the assets of that Series, shall be separate from the
obligations of each other Series, and no Series shall be liable for the
obligations of any other Series.
W I T N E S S E T H :
WHEREAS, the Trust has filed a registration statement (the
"Registration Statement") pursuant to Section 8(b) of the Investment Company Act
of 1940, as amended (the "Investment Company Act"); and
WHEREAS, the Trustees of the Trust (the "Trustees") are authorized to
establish separate series relating to separate portfolios of securities, each of
which may offer beneficial interests in the Series ("Interests"); and
WHEREAS, the Trustees have established and designated the Series as
series of the Trust; and
WHEREAS, the Trust and the Placement Agent wish to enter into an
agreement with each other with respect to the distribution of Interests in the
Series.
NOW, THEREFORE, the parties agree as follows:
Section 1. Appointment of the Placement Agent; Private Offering.
(a) The Trust hereby appoints the Placement Agent as placement agent in
connection with the distribution of the Interests.
(b) The Placement Agent understands that: (i) The Interests are not
being registered under the Securities Act of 1933, as amended (the "Securities
Act"); (ii) Such Interests are to be issued solely in private placement
transactions that do not involve any "public offering" within the meaning of
Section 4(2) of the Securities Act; (iii) Investments in the Series may be made
only by a limited number of institutional investors, including investment
companies, common or commingled trust funds, group trusts and certain other
"accredited investors" within the meaning of Regulation D under the Securities
Act; and (iv) The Registration Statement is not intended to constitute an offer
to sell, or the solicitation of an offer to buy, any beneficial interests in the
Series.
(c) In carrying out its duties hereunder, the Placement Agent agrees
that it will act in a manner consistent with the foregoing and, unless otherwise
instructed by the Trust in writing, will not take any actions which would cause
the Trust to make a "public offering" within the meaning of Section 4(2) of the
Securities Act.
Section 2. Exclusive Nature of Duties. The Placement Agent shall be the
exclusive representative of the Series to act as placement agent in respect of
the distribution of the Interests, except that:
(a) The Trust may, with respect to any Series, upon written notice to
the Placement Agent, from time to time designate other placement agents with
respect to areas other than the United States as to which the Placement Agent
may have expressly waived in writing its right to act as such. If such
designation is deemed exclusive, the right of the Placement Agent under this
Agreement in respect of such areas so designated shall terminate, but this
Agreement shall remain otherwise in full effect until terminated in accordance
with the other provisions hereof.
(b) The exclusive right granted to the Placement Agent hereunder shall
not apply to Interests issued in connection with the merger or consolidation of
any other investment company or personal holding company with a Series or the
acquisition by purchase or otherwise of all (or substantially all) the assets or
the outstanding shares of any such company by a Series.
(c) Such exclusive right also shall not apply to Interests issued by a
Series pursuant to reinvestment of dividends or capital gains distributions.
(d) Such exclusive right also shall not apply to Interests issued by a
Series pursuant to any conversion, exchange or reinstatement privilege afforded
redeeming shareholders or to any other Interests as shall be agreed between the
Trust and the Placement Agent from time to time.
Section 3. Duties of the Trust.
(a) The Trust shall furnish to the Placement Agent copies of all
information, financial statements and other papers which the Placement Agent may
reasonably request for use in connection with its duties hereunder, and this
shall include, upon request by the Placement Agent, one certified copy of all
financial statements prepared for the Trust by independent public accountants.
(b) Consistent with Section 1 hereof, the Trust shall use its best
efforts to qualify and maintain the qualification of the Interests for sale
under the securities laws of such jurisdictions as the Placement Agent and the
Trust may approve. Any such qualification may be withheld, terminated or
withdrawn by the Trust at any time in its discretion. The expense of
qualification and maintenance of qualification shall be borne by the Trust. The
Placement Agent shall furnish such information and other material relating to
its affairs and activities as may be required by the Trust in connection with
such qualification.
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(c) The Trust will furnish, in reasonable quantities upon request by
the Placement Agent, copies of annual and interim reports of each Series.
Section 4. Duties of the Placement Agent.
(a) The Placement Agent shall devote reasonable time and effort to its
duties hereunder. The services of the Placement Agent to the Trust hereunder are
not to be deemed exclusive and nothing herein contained shall prevent the
Placement Agent from entering into like arrangements with other investment
companies so long as the performance of its obligations hereunder is not
impaired thereby.
(b) In performing its duties hereunder, the Placement Agent shall use
its best efforts in all respects to duly conform with the requirements of all
applicable laws relating to the sale of securities. Neither the Placement Agent
nor any other person is authorized by the Trust to give any information or to
make any representations, other than those contained in the Trust's registration
statement or any supplemental literature specifically approved by the Trust.
Section 5. Payment of Expenses.
(a) The Trust shall bear all costs and expenses of the Series,
including fees and disbursements of its counsel and auditors, in connection with
the preparation and filing of any required registration statements under the
Investment Company Act, and all amendments and supplements thereto, and
preparing and mailing annual and interim reports and proxy materials to
shareholders (including but not limited to the expense of setting in type any
such registration statements, or interim reports or proxy materials).
(b) The Trust shall bear any cost and expenses of qualification of the
Interests for sale pursuant to this Agreement and, if necessary or advisable in
connection therewith, of qualifying the Trust as a broker or dealer in such
states of the United States or other jurisdictions as shall be selected by the
Trust and the Placement Agent pursuant to Section 3 hereof and the cost and
expenses payable to each such state for continuing qualification therein until
the Trust decides to discontinue such qualification pursuant to Section 3
hereof.
(c) Each Series shall bear its allocable share of the costs and
expenses described in Sections 5(a) and 5(b) above.
Section 6. Indemnification.
(a) The Trust shall indemnify and hold harmless the Placement Agent and
each person, if any, who controls the Placement Agent against any loss,
liability, claim, damage or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, claim, damage or expense
and reasonable counsel fees incurred in connection therewith), as incurred,
arising by reason of any person acquiring any Interests, which may be based upon
the Securities
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Act, or on any other statute or at common law, on the ground that any
registration statement or other offering materials, as from time to time amended
and supplemented, or an annual or interim report to interestholders of the
Series, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary in order 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 Trust in
connection therewith by or on behalf of the Placement Agent; provided, however,
that in no case (i) is the indemnity of the Trust in favor of the Placement
Agent and any such controlling persons to be deemed to protect such Placement
Agent or any such controlling persons thereof against any liability to the Trust
or its interestholders to which the Placement Agent or any such controlling
persons would otherwise be subject by reason of willful misfeasance, bad faith
or gross negligence in the performance of their duties or by reason of the
reckless disregard of their obligations and duties under this Agreement; or (ii)
is the Trust to be liable under its indemnity agreement contained in this
paragraph with respect to any claim made against the Placement Agent or any such
controlling persons, unless the Placement Agent or such controlling persons, as
the case may be, shall have notified the Trust in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon the Placement Agent or such
controlling persons (or after the Placement Agent or such controlling persons
shall have received notice of such service on any designated agent), but failure
to notify the Trust of any such claim shall not relieve it from any liability
which it may have to the person against whom such action is brought otherwise
than on account of its indemnity agreement contained in this paragraph. The
Trust will be entitled to participate at its own expense in the defense or, if
it so elects, to assume the defense of any suit brought to enforce any such
liability, but if the Trust elects to assume the defense, such defense shall be
conducted by counsel chosen by it and satisfactory to the Placement Agent or
such controlling person or persons, defendant or defendants in the suit. In the
event the Trust elects to assume the defense of any such suit and retain such
counsel, the Placement Agent or such controlling person or persons, defendant or
defendants in the suit shall bear the fees and expenses, as incurred, of any
additional counsel retained by them, but in case the Trust does not elect to
assume the defense of any such suit, it will reimburse the Placement Agent or
such controlling person or persons, defendant or defendants in the suit, for the
reasonable fees and expenses, as incurred, of any counsel retained by them. The
Trust shall promptly notify the Placement Agent of the commencement of any
litigation or proceedings against it or any of its officers or Directors in
connection with the issuance or sale of any of the Interests.
(b) The Placement Agent shall indemnify and hold harmless the Trust and
each of its Trustees and officers and each person, if any, who controls the
Trust against any loss, liability, claim, damage or expense, as incurred,
described in the foregoing indemnity contained in subsection (a) of this
Section, but only with respect to statements or omissions made in reliance upon,
and in conformity with, information furnished to the Trust in writing by or on
behalf of the Placement Agent for use in connection with the registration
statement or other offering materials, as from time to time amended, or the
annual or interim reports to shareholders. In case any action shall be brought
against the Trust or any person so indemnified, in respect of which
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indemnity may be sought against the Placement Agent, the Placement Agent shall
have the rights and duties given to the Trust, and the Trust and each person so
indemnified shall have the rights and duties given to the Placement Agent by the
provisions of subsection (a) of this Section 6.
Section 7. Duration and Termination of this Agreement. This Agreement
shall become effective as of the date first above written and shall remain in
force for two years thereafter and thereafter continue from year to year, but
only so long as such continuance is specifically approved at least annually (i)
with respect to one or more of the Series, by the Trustees or with respect to a
Series, by the vote of a majority of the outstanding voting securities of such
Series and (ii) by the vote of a majority of those Trustees who are not parties
to this Agreement or interested persons of any such party cast in person at a
meeting called for the purpose of voting on such approval.
This Agreement may be terminated at any time, without the payment of
any penalty with respect to one or more of the Series, by the Trustees or with
respect to a Series, by vote of a majority of the outstanding voting securities
of such Series, or by the Placement Agent, on sixty days' written notice to the
other party. This Agreement shall automatically terminate in the event of its
assignment.
The terms "vote of a majority of the outstanding voting securities",
"assignment", "affiliated person" and "interested person", when used in this
Agreement, shall have the respective meanings specified in the Investment
Company Act.
Section 8. Amendments of this Agreement. This Agreement may be amended
by the parties only if such amendment is specifically approved (i) (a) with
respect to all Series, by the Trustees or by the vote of a majority of
outstanding voting securities of each Series, or (b) with respect to any one
Series, by the Trustees or the vote of a majority of outstanding voting
securities of such Series, and (ii) by the vote of a majority of those Trustees
who are not parties to this Agreement or interested persons of any such party
cast in person at a meeting called for the purpose of voting on such approval.
Section 9. Governing Law. The provisions of this Agreement shall be
construed and interpreted in accordance with the laws of the State of New York
as at the time in effect and the applicable provisions of the Investment Company
Act. To the extent that the applicable law of the State of New York, or any of
the provisions herein, conflict with the applicable provisions of the Investment
Company Act, the latter shall control.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written. This Agreement may be
executed by the parties hereto in any number of counterparts, all of which shall
constitute one and the same instrument.
QUANTITATIVE MASTER SERIES TRUST,
on behalf of each Series
By ----------------------------------
Name:
Title:
PRINCETON FUNDS DISTRIBUTOR, INC.
By ----------------------------------
Name:
Title:
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Appendix A
Series of Quantitative Master Series Trust
Master S&P 500 Index Series
Master Small Cap Index Series
Master Aggregate Bond Index Series
Master International (GDP Weighted) Index Series
Master Enhanced International Series
Master Enhanced S&P 500 Series
Master International (Capitalization Weighted) Index Series
Master Quantitative Large Cap Series
Master Quantitative Large Cap Value Series
Master Quantitative Large Cap Growth Series
Master Quantitative Mid Cap Series
Master Quantitative Small Cap Series
Master Quantitative International Series
Master Mid Cap Index Series
As of December __, 1999
