Exhibit 8(a)
PLACEMENT AGENT AGREEMENT
AGREEMENT made as of the 29th day of September 2006, between MASTER
INSTITUTIONAL MONEY MARKET 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").
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
offer beneficial interests in the Series (together with the beneficial interests
in the Trust, the "Shares") in the series of the Trust listed on Appendix A
hereto to Xxxxxxx Xxxxx Funds for Institutions Series, a Massachusetts business
trust (the "Fund"), on behalf of the corresponding Series listed on Appendix A
hereto, and to a limited number of institutional investors as described below;
and
WHEREAS, the Trust and the Placement Agent wish to enter into an agreement
with each other with respect to the distribution of Shares (the "Agreement").
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 Shares.
(b) The Placement Agent understands that: (i) the Shares are not being
registered under the Securities Act of 1933, as amended (the "Securities Act");
(ii) such Shares 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 Trust may be made only by the Fund and
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; (iv) the
Registration Statement is not intended to constitute an offer to sell, or the
solicitation of an offer to buy, the Shares.
(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 that 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 Shares of the Trust, except that:
(a) BlackRock Distributors, Inc. may also act as placement agent in
respect of the distribution of the Shares of the Trust.
(b) 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.
(c) The exclusive right granted to the Placement Agent hereunder shall not
apply to Shares 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.
(d) Such exclusive right also shall not apply to Shares issued pursuant to
reinvestment of dividends or capital gains distributions.
(e) Such exclusive right also shall not apply to Shares issued pursuant to
any conversion, exchange or reinstatement privilege afforded redeeming
shareholders or to any other Shares 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 that 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 Shares 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 to the Placement Agent, in reasonable
quantities upon request by the Placement Agent, copies of annual and interim
reports of the Trust and/or any Series.
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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 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 the Trust to give any information or to
make any representations, other than those contained in the Trust's registration
statement or any sales literature specifically approved by the Trust.
Section 5. Payment of Expenses.
(a) The Trust shall pay or cause to be paid all costs and expenses
incurred in connection with the operation of the Trust, 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 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 Shares, 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 any annual or interim report to the shareholders 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
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against any liability to the Trust (or any Series) or its shareholders 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
that 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, the Trust 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 the Trust's officers or
Trustees in connection with the issuance or sale of any of the Shares.
(b) The Placement Agent shall indemnify and hold harmless the Trust and
each of the 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 its registration
statement or any related prospectus and statement of additional information, 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 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 shall continue thereafter, but only for 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
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person (if such an in person meeting is required by applicable law) 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 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 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 and the Rules and Regulations thereunder, subject, however to such
exemptions as may be granted by the Securities and Exchange Commission under 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.
MASTER INSTITUTIONAL MONEY MARKET TRUST
By: ___________________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President & Treasurer
FAM DISTRIBUTORS, INC.
By: ___________________________________
Name:
Title:
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Appendix A
Name of Series of the Trust Name of Series of the Fund
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Premier Institutional Portfolio Premier Institutional Fund
Institutional Portfolio Institutional Fund
[Institutional Fund II]
Institutional Tax-Exempt Portfolio Institutional Tax-Exempt Fund
Treasury Portfolio Treasury Fund
Government Portfolio Government Fund
As of May [ ], 2007.
