Exhibit 8(b)
PLACEMENT AGENT AGREEMENT
AGREEMENT made as of February ___, 2004 between MASTER INFLATION PROTECTED
TRUST, a Delaware statutory trust (the "Trust"), on behalf of itself and such of
its series, if any, as may be listed on Appendix A, as such Appendix may be
amended from time to time, (the "Series"), and FAM DISTRIBUTORS, INC., a
Delaware corporation (the "Placement Agent").
If additional series are established by the Trust, 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.
WITNESSETH:
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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 (together with the beneficial
interests in the Trust, the "Interests"); and
WHEREAS, the Trustees may establish and designated the Series as series of
the Trust from time to time; 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 Trust and
any 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
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intended to constitute an offer to sell, or the solicitation of an offer to buy,
any beneficial interests in the Trust or any 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 Trust and any Series to act as placement agent
in respect of the distribution of the Interests, except that:
(a) The Trust may, with respect to itself and 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 force and 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 the Trust, or any
Series, or the acquisition by purchase or otherwise of all (or substantially
all) the assets or the outstanding shares of any such company by the Trust, or
any Series.
(c) Such exclusive right also shall not apply to Interests issued by
the Trust, or any Series, pursuant to reinvestment of dividends or capital gains
distributions.
(d) Such exclusive right also shall not apply to Interests issued by
the Trust, or any 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
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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.
(c) The Trust will furnish, in reasonable quantities upon request by
the Placement Agent, copies of annual and interim reports of the Trust and/or
any 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 itself and any
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) The Trust, and any 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 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
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annual or interim report to interest holders of the Trust or any 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 any
Series) or its interest holders 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 (or any Series) 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 Trustees in connection with the issuance or sale of any of the interests.
(b) The Placement Agent shall indemnify and hold harm less 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 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.
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Section 7. Duration and Termination of this Agreement.
(a) 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 the Trust or one or more of the
Series, by the Trustees or with respect to the Trust or such Series, as
applicable, by the vote of a majority of the outstanding voting securities of
the Trust or 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 (if such an in person meeting is required by applicable law) at a
meeting called for the purpose of voting on such approval.
(b) This Agreement may be terminated at any time, without the payment
of any penalty with respect to the Trust or one or more of the Series, by the
Trustees or with respect to the Trust or a Series, as applicable, by vote of a
majority of the outstanding voting securities of the Trust or 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 it assignment.
(c) 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 the Trust (and/or all Series), by the Trustees or by the vote of a majority
of outstanding voting securities of the Trust (and/or 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 (if such an in person meeting is required by
applicable law) 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.
MASTER INFLATION PROTECTED TRUST
BY:
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Name:
Title:
FAM DISTRIBUTORS, INC.
BY:
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Name:
Title:
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