EXHIBIT 5
PLACEMENT AGENT AGREEMENT
AGREEMENT made as of ___________________________________, 1999, between
GLOBAL FINANCIAL SERVICES MASTER TRUST, a Delaware business trust (the "Trust"),
on behalf of its series listed on Appendix A hereto (the "Series"), and XXXXXXX
XXXXX FUNDS DISTRIBUTOR, INC., a Delaware corporation (the "Placement Agent").
The obligations of the Series hereunder shall be limited to the assets of that
Series, shall be separate from the obligations of any 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 :
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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 (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 10. Appointment of the Placement Agent; Private Offering.
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(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 11. Exclusive Nature of Duties. The Placement Agent shall be the
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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 the 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 the 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 Series.
(c) Such exclusive right also shall not apply to Interests issued by the
Series pursuant to reinvestment of dividends or capital gains distributions.
(d) Such exclusive right also shall not apply to Interests issued by the
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 12. Duties of the Trust.
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(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.
(c) The Trust will furnish, in reasonable quantities upon request by the
Placement Agent, copies of annual and interim reports of the Series.
Section 13. Duties of the Placement Agent.
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(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 duly to 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 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 14. Payment of Expenses.
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(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
Shares 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.
Section 15. Indemnification.
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(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 annual or interim report to interest holders 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 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 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 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 16. Duration and Termination of this Agreement. This Agreement
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shall become effective as of the date first above written and shall remain in
force until ______________________________________ and thereafter, but only for
so long as such continuance is specifically approved at least annually by (i)
the Trustees or by the vote of a majority of the outstanding voting securities
of the Trust 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, by the Trustees or by vote of a majority of the outstanding voting
securities of the Trust, 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 17. Amendments of this Agreement. This Agreement may be amended
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by the parties only if such amendment is specifically approved by (i) the
Trustees or by the vote of a majority of outstanding voting securities of the
Trust 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 18. Governing Law. The provisions of this Agreement shall be
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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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
GLOBAL FINANCIAL SERVICES MASTER TRUST
By:
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(Signature)
Name:
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Title:
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XXXXXXX XXXXX FUNDS DISTRIBUTOR, INC.
By:
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(Signature)
Name:
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Title:
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Appendix A
Series of Global Financial Services Master Trust
Global Financial Services Portfolio
As of ________________________________________, 1999
