EXCLUSIVE DEALER AGREEMENT
CLASS B SHARES OF ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ PORTFOLIOS
AGREEMENT made as of ___________________, 1997, between ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Asset Management Inc. ("▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇"), a Delaware corporation, and
PaineWebber Incorporated ("PaineWebber"), a Delaware corporation.
WHEREAS ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Portfolios ("Fund") is a Delaware business trust
registered under the Investment Company Act of 1940, as amended ("1940 Act"), as
an open-end management investment company; and
WHEREAS the Fund currently has three distinct series of shares of
beneficial interest ("Series"), which correspond to distinct portfolios and have
been designated as the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Aggressive Portfolio, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Moderate Portfolio and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Conservative Portfolio; and
WHEREAS the Fund's board of trustees ("Board") has established an
unlimited number of shares of beneficial interest of the above-referenced Series
as Class B shares ("Class B Shares") and has adopted a Plan of Distribution
pursuant to Rule ▇▇▇-▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ("▇▇▇▇") with respect to the Class B
Shares of the above-referenced Series and of such other Series as may hereafter
be designated by the Board and have Class B Shares established; and
WHEREAS ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ has entered into a Distribution Contract with
the Fund ("Distribution Contract") pursuant to which ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ serves as
principal distributor in connection with the offering and sale of the Class B
Shares of each such Series; and
WHEREAS ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ desires to retain PaineWebber as its exclusive
agent in connection with the offering and sale of the Class B Shares of each
Series and to delegate to PaineWebber performance of certain of the services
which ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ provides to the Fund under the Distribution Contract;
and
WHEREAS PaineWebber is willing to act as ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇' exclusive
agent in connection with the offering and sale of such Class B Shares and to
perform such services on the terms and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the premises and the mutual covenants
contained herein, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and PaineWebber agree as follows:
1. APPOINTMENT. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ hereby appoints PaineWebber as its
exclusive agent to sell and to arrange for the sale of the Class B Shares on the
terms and for the period set forth in this Agreement. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ also
appoints PaineWebber as its agent for the performance of certain other services
set forth herein which ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ provides to the Fund under the
Distribution Contract. PaineWebber hereby accepts such appointments and agrees
to act hereunder. It is understood, however, that these appointments do not
preclude sales of Class B Shares directly through the Fund's transfer agent in
the manner set forth in the Registration Statement. As used in this Agreement,
the term "Registration Statement" shall mean the currently effective
Registration Statement of the Fund, and any supplements thereto, under the
Securities Act of 1933, as amended ("1933 Act"), and the 1940 Act.
2. SERVICES, DUTIES AND REPRESENTATIONS OF PAINEWEBBER.
(a) PaineWebber agrees to sell the Class B Shares on a best efforts
basis from time to time during the term of this Agreement as agent for ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ and upon the terms described in this Agreement and the Registration
Statement.
(b) Upon the later of the date of this Agreement or the initial
offering of Class B Shares by a Series to the public, PaineWebber will hold
itself available to receive orders, satisfactory to PaineWebber and ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, for the purchase of Class B Shares and will accept such orders on
behalf of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and the Fund as of the time of receipt of such
orders and will promptly transmit such orders as are accepted to the Fund's
transfer agent. Purchase orders shall be deemed effective at the time and in the
manner set forth in the Registration Statement.
(c) PaineWebber in its discretion may sell Class B Shares to (i) its
correspondent firms and customers of such firms and (ii) such other registered
and qualified retail dealers as it may select, subject to the approval of
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇. In making agreements with such dealers, PaineWebber shall act
only as principal and not as agent for ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or the Fund.
(d) The offering price of the Class B Shares of each Series shall be
the net asset value per Share as next determined by the Fund following receipt
of an order at PaineWebber's principal office. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall promptly
furnish or arrange for the furnishing to PaineWebber of a statement of each
computation of net asset value.
(e) PaineWebber shall not be obligated to sell any certain
number of Class B Shares.
(f) To facilitate redemption of Class B Shares by shareholders
directly or through dealers, PaineWebber is authorized but not required on
behalf of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and the Fund to repurchase Class B Shares presented
to it by shareholders, its correspondent firms and other dealers at the price
determined in accordance with, and in the manner set forth in, the Registration
Statement. Such price shall reflect the subtraction of the applicable contingent
deferred sales charge, if any, computed in accordance with and in the manner set
forth in the Registration Statement.
-2-
(g) PaineWebber shall provide ongoing shareholder services, which
include responding to shareholder inquiries, providing shareholders with
information on their investments in the Class B Shares and any other services
now or hereafter deemed to be appropriate subjects for the payments of "service
fees" under Rule 2830 of the Conduct Rules of the National Association of
Securities Dealers, Inc. ("NASD") (collectively, "service activities").
(h) PaineWebber represents and warrants that: (i) it is a member in
good standing of the NASD and agrees to abide by the Conduct Rules of the NASD;
(ii) it is registered as a broker-dealer with the Securities and Exchange
Commission; (iii) it will maintain any filings and licenses required by federal
and state laws to conduct the business contemplated under this Agreement; and
(iv) it will comply with all federal and state laws and regulations applicable
to the offer and sale of the Class B Shares.
(i) PaineWebber shall not incur any debts or obligations on behalf
of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or the Fund. PaineWebber shall bear all costs that it
incurs in selling the Class B Shares and in complying with the terms and
conditions of this Agreement as more specifically set forth in paragraph 8.
(j) PaineWebber shall not permit any employee or agent to offer or
sell Class B Shares to the public unless such person is duly licensed under
applicable federal and state laws and regulations.
(k) PaineWebber shall not (i) furnish any information or make any
representations concerning the Class B Shares other than those contained in the
Registration Statement or in sales literature or advertising that has been
prepared or approved by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as provided in paragraph 6 or (ii)
offer or sell the Class B Shares in jurisdictions in which they have not been
approved for offer and sale.
3. SERVICES NOT EXCLUSIVE. The services furnished by PaineWebber hereunder
are not to be deemed exclusive and PaineWebber shall be free to furnish similar
services to others so long as its services under this Agreement are not impaired
thereby. Nothing in this Agreement shall limit or restrict the right of any
director, officer or employee of PaineWebber who may also be a director,
trustee, officer or employee of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or the Fund, to engage in any
other business or to devote his or her time and attention in part to the
management or other aspects of any other business, whether of a similar or a
dissimilar nature.
-3-
4. COMPENSATION.
(a) As compensation for its service activities under this Agreement
with respect to the Class B Shares, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall pay to PaineWebber
service fees with respect to Class B Shares maintained in shareholder accounts
serviced by PaineWebber employees, correspondent firms and other dealers in such
amounts as ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and PaineWebber may from time to time agree upon.
(b) As compensation for its activities under this Agreement with
respect to the distribution of the Class B Shares, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall pay
to PaineWebber such commissions for sales of the Class D shares by PaineWebber
employees, correspondent firms and other dealers and such other compensation as
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and PaineWebber may from time to time agree upon.
(c) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇' obligation to pay compensation to PaineWebber
as agreed upon pursuant to this paragraph 4 is not contingent upon receipt by
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of any compensation from the Fund or Series. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
shall advise the Board of any agreements or revised agreements as to
compensation to be paid by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to PaineWebber at their first
regular meeting held after such agreement but shall not be required to obtain
prior approval for such agreements from the Board.
(d) PaineWebber may reallow all or any part of the service fees,
commissions or other compensation which it is paid under this Agreement to its
correspondent firms or other dealers, in such amounts as PaineWebber may from
time to time determine.
5. DUTIES OF ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
(a) It is understood that the Fund reserves the right at any time to
withdraw all offerings of Class B Shares of any or all Series by written notice
to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
(b) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall keep PaineWebber fully informed of the
Fund's affairs and shall make available to PaineWebber copies of all
information, financial statements and other papers which PaineWebber may
reasonably request for use in connection with the distribution of Class B
Shares, including, without limitation, certified copies of any financial
statements prepared for the Fund by its independent public accountant and such
reasonable number of copies of the most current prospectus, statement of
additional information, and annual and interim reports of any Series as
PaineWebber may request, and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall cooperate fully in the
efforts of PaineWebber to sell and arrange for the sale of the Class B Shares
and in the performance of PaineWebber under this Agreement.
-4-
(c) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall comply with all state and federal laws
and regulations applicable to a distributor of the Class B Shares.
6. ADVERTISING. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ agrees to make available such sales and
advertising materials relating to the Class B Shares as ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in its
discretion determines appropriate. PaineWebber agrees to submit all sales and
advertising materials developed by it relating to the Class B Shares to ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ for approval. PaineWebber agrees not to publish or distribute such
materials to the public without first receiving such approval in writing.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall assist PaineWebber in obtaining any regulatory approvals
of such materials that may be required of or desired by PaineWebber.
7. RECORDS. PaineWebber agrees to maintain all records required by
applicable state and federal laws and regulations relating to the offer and sale
of the Class B Shares. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and its representatives shall have
access to such records during normal business hours for review or copying.
8. EXPENSES OF PAINEWEBBER. PaineWebber shall bear all costs and expenses
of (i) preparing, printing, and distributing any materials not prepared by the
Fund or ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and other materials used by PaineWebber in connection
with its offering of Class B Shares for sale to the public; (ii) any expenses of
advertising incurred by PaineWebber in connection with such offering; (iii) the
expenses of registration or qualification of PaineWebber as a dealer or broker
under federal or state laws and the expenses of continuing such registration or
qualification; and (iv) all compensation paid to PaineWebber's Investment
Executives or other employees and others for selling Class B Shares, and all
expenses of PaineWebber, its Investment Executives and employees and others who
engage in or support the sale of Class B Shares as may be incurred in connection
with their sales efforts. PaineWebber shall bear such additional costs and
expenses as it and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ may agree upon, such agreement to be
evidenced in a writing signed by both parties. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall advise
the Board of any such agreement as to additional costs and expenses borne by
PaineWebber at their first regular meeting held after such agreement but shall
not be required to obtain prior approval for such agreements from the Board.
9. INDEMNIFICATION.
(a) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ agrees to indemnify, defend, and hold
PaineWebber, its officers and directors, and any person who controls PaineWebber
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 PaineWebber, its officers,
directors, or any such controlling person may incur under the 1933 Act, under
common law or otherwise, arising out of or based upon any alleged untrue
-5-
statement of a material fact contained in the Registration Statement; arising
out of or based upon any alleged omission to state a material fact required to
be stated in the Registration Statement thereof or necessary to make the
statements in the Registration Statement thereof not misleading; or arising out
of any sales or advertising materials with respect to the Class B Shares
provided by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to PaineWebber. However, this indemnity agreement
shall not apply to any claims, demands, liabilities, or expenses that arise out
of or are based upon any such untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
furnished in writing by PaineWebber to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or the Fund for use in
the Registration Statement or in any sales or advertising material; and further
provided, that in no event shall anything contained herein be so construed as to
protect PaineWebber against any liability to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or the Fund or to
the shareholders of any Series to which PaineWebber would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance of its duties, or by reason of its reckless disregard of its
obligations under this Agreement.
(b) PaineWebber agrees to indemnify, defend, and hold ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ and its officers and directors, the Fund, its officers and trustees,
and any person who controls ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or the Fund 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 against such claims, demands or liabilities and any counsel fees
incurred in connection therewith) which ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or its officers or
directors or the Fund, its officers or trustees, or any such controlling person
may incur under the 1933 Act, under common law or otherwise arising out of or
based upon any alleged untrue statement of a material fact contained in
information furnished in writing by PaineWebber to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or the Fund
for use in the Registration Statement; arising out of or based upon any alleged
omission to state a material fact in connection with such information required
to be stated in the Registration Statement or necessary to make such information
not misleading; or arising out of any agreement between PaineWebber and a
correspondent firm or any other retail dealer; or arising out of any sales or
advertising material used by PaineWebber in connection with its duties under
this Agreement.
10. DURATION AND TERMINATION.
(a) This Agreement shall become effective upon the date written
above, provided that, with respect to any Series, this Contract shall not take
effect unless such action has first been approved by vote of a majority of the
Board and by vote of a majority of those trustees of the Fund who are not
interested persons of the Fund and who have no direct or indirect financial
interest in the operation of the Plan or in any agreements related thereto (all
such trustees collectively being referred to herein as the "Independent
Trustees"), cast in person at a meeting called for the purpose of voting on such
action.
-6-
(b) Unless sooner terminated as provided herein, this Agreement
shall continue in effect for one year from the above written date. Thereafter,
if not terminated, this Agreement shall continue automatically for successive
periods of twelve months each, provided that such continuance is specifically
approved at least annually (i) by a vote of a majority of the Independent
Trustees, cast in person at a meeting called for the purpose of voting on such
approval, and (ii) by the Board or with respect to any given Series by vote of a
majority of the outstanding voting securities of the Class B Shares of such
Series.
(c) Notwithstanding the foregoing, with respect to any Series this
Agreement may be terminated at any time, without the payment of any penalty, by
either party, upon the giving of 30 days' written notice. Such notice shall be
deemed to have been given on the date it is received in writing by the other
party or any officer thereof. This Agreement may also be terminated at any time,
without the payment of any penalty, by vote of the Board, by vote of a majority
of the Independent Trustees or by vote of a majority of the outstanding voting
securities of the Class B Shares of such Series on 30 days' written notice to
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and PaineWebber.
(d) Termination of this Agreement with respect to any given Series
shall in no way affect the continued validity of this Agreement or the
performance thereunder with respect to any other Series. This Agreement will
automatically terminate in the event of its assignment or in the event that the
Distribution Contract is terminated.
(e) Notwithstanding the foregoing, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ may terminate
this Agreement without penalty, such termination to be effective upon the giving
of written notice to PaineWebber in the event that the Plan is terminated or is
amended to reduce the compensation payable to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ thereunder or in
the event that the Registration Statement is amended so as to reduce the amount
of compensation payable to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ under the Distribution Contract,
provided that ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ gives notice of termination pursuant to this
provision within 90 days of such amendment or termination of the Plan or
amendment of the Registration Statement.
11. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement may be
amended, changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought.
-7-
12. USE OF PAINEWEBBER NAME. PaineWebber hereby authorizes ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ to use the name "PaineWebber Incorporated" or any name derived
therefrom in any sales or advertising materials prepared and/or used by ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ in connection with its duties as distributor of the Class B Shares, but
only for so long as this Agreement or any extension, renewal or amendment hereof
remains in effect, including any similar agreement with any organization which
shall have succeeded to the business of PaineWebber.
13. GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of Delaware and the 1940 Act. To the extent that
the applicable laws of the State of Delaware conflict with the applicable
provisions of the 1940 Act, the latter shall control.
14. MISCELLANEOUS. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors. As used in this
Agreement, the terms "majority of the outstanding voting securities,"
"interested person" and "assignment" shall have the same meaning as such terms
have in the 1940 Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated as of the day and year first written
above.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ASSET
MANAGEMENT INC.
Attest: _________________________ By: ___________________________
PAINEWEBBER INCORPORATED
Attest: _________________________ By: ___________________________
-8-
