Exhibit (5)(h)
UBS MONEY SERIES
PRINCIPAL UNDERWRITING CONTRACT
CONTRACT made as of March 15, 2004, between UBS MONEY SERIES, a
Delaware business trust ("Fund"), and UBS GLOBAL ASSET MANAGEMENT (US) INC., a
Delaware corporation ("UBS Global AM").
WHEREAS the Fund is registered under the Investment Company Act of
1940, as amended ("1940 Act"), as an open-end management investment company and
currently offers distinct series of shares of beneficial interest ("Series"),
one of which corresponds to a distinct portfolio designated as UBS Select
Treasury Fund for which the Fund's board of trustees ("Board") has established
an unlimited number of shares of beneficial interest ("Shares"); and
WHEREAS the Fund desires to retain UBS Global AM as principal
underwriter in connection with the offering and sale of the Shares of the
above-referenced Series and of such other Series as may hereafter be designated
by the Board; and
WHEREAS UBS Global AM is willing to act as principal underwriter of the
Shares of each such Series on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Fund hereby appoints UBS Global AM as its exclusive
agent to be the principal underwriter to sell and to arrange for the sale of the
Shares on the terms and for the period set forth in this Contract. UBS Global AM
hereby accepts such appointment and agrees to act hereunder. It is understood,
however, that this appointment does not preclude sales of the Shares directly
through the Fund's transfer agent in the manner set forth in the Registration
Statement. As used in this Contract, 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 and Duties of UBS Global AM.
(a) UBS Global AM agrees to sell Shares on a best efforts basis from
time to time during the term of this Contract as agent for the Fund and upon the
terms described in the Registration Statement.
(b) Upon the later of the date of this Contract or the initial
offering of Shares to the public by UBS Select Treasury Fund, UBS Global AM will
hold itself available to receive purchase orders, satisfactory to UBS Global AM,
for Shares of that Series and
will accept such orders on behalf of the Fund as of the time of receipt of such
orders and 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) UBS Global AM in its discretion may enter into agreements to
sell Shares to such registered and qualified retail dealers as it may select. In
making agreements with such dealers, UBS Global AM shall act only as principal
and not as agent for the Fund.
(d) The offering price of the Shares shall be the net asset value
per share as next determined by the Fund following receipt of an order at UBS
Global AM's principal office. The Fund shall promptly furnish UBS Global AM with
a statement of each computation of net asset value.
(e) UBS Global AM shall not be obligated to sell any certain
number of Shares.
(f) To facilitate redemption of Shares by shareholders directly or
through dealers, UBS Global AM is authorized but not required on behalf of the
Fund to repurchase Shares presented to it by shareholders and dealers at the
price determined in accordance with, and in the manner set forth in, the
Registration Statement.
(g) UBS Global AM shall have the right to use any list of
shareholders of the Fund or any other list of investors which it obtains in
connection with its provision of services under this Contract; provided,
however, that UBS Global AM shall not sell or knowingly provide such list or
lists to any unaffiliated person.
3. Authorization to Enter into Dealer Agreements and to Delegate Duties
as Principal Underwriter. With respect to the Shares of any or all Series, UBS
Global AM may enter into dealer agreements with any registered and qualified
dealer with respect to sales of Shares or the provision of service activities.
In a separate contract or as part of any such dealer agreement, UBS Global AM
also may delegate to any registered and qualified dealer any or all of its
duties specified in this Contract, provided that such separate contract or
dealer agreement imposes on the counterparty bound thereby all applicable duties
and conditions to which UBS Global AM is subject under this Contract.
4. Services Not Exclusive. The services furnished by UBS Global AM
hereunder are not to be deemed exclusive and UBS Global AM shall be free to
furnish similar services to others so long as its services under this Contract
are not impaired thereby. Nothing in this Contract shall limit or restrict the
right of any director, officer or employee of UBS Global AM, who may also be a
Board member, officer or employee of 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.
5. Compensation.
The Fund shall have no obligation to compensate UBS Global AM for
any services performed by it hereunder.
2
6. Duties of the Fund.
(a) The Fund reserves the right at any time to withdraw offering any
class or classes of Shares of any or all Series by written notice to UBS Global
AM at its principal office.
(b) The Fund shall keep UBS Global AM fully informed of its affairs
and shall make available to UBS Global AM copies of all information, financial
statements, and other documents which UBS Global AM may reasonably request for
use in connection with the distribution of 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 UBS Global AM may request, and the Fund shall
cooperate fully in the efforts of UBS Global AM to sell and arrange for the sale
of the Shares of the Series and in the performance of UBS Global AM under this
Contract.
(c) The Fund shall take, from time to time, all necessary action,
including payment of the related filing fee, as may be necessary to register its
Shares under the 1933 Act to the end that there will be available for sale such
number of Shares as UBS Global AM may be expected to sell. The Fund agrees to
file, from time to time, such amendments, reports, and other documents as may be
necessary in order that there will be no untrue statement of a material fact in
the Registration Statement, nor any omission of a material fact which omission
would make the statements therein misleading.
(d) The Fund shall use its best efforts to qualify and maintain the
qualification of an appropriate number of Shares of each Series for sale under
the securities laws of such states or other jurisdictions as UBS Global AM and
the Fund may approve, provided that the Fund shall not be required to amend its
Declaration of Trust or By-Laws to comply with the laws of any jurisdiction, to
maintain an office in any jurisdiction, to change the terms of the offering of
the Shares in any jurisdiction from the terms set forth in its Registration
Statement, to qualify as a foreign corporation in any jurisdiction, or to
consent to service of process in any jurisdiction other than with respect to
claims arising out of the offering of the Shares. UBS Global AM shall furnish
such information and other material relating to its affairs and activities as
may be required by the Fund in connection with such qualifications.
7. Expenses of the Fund. Unless otherwise provided in the Investment
Advisory and Administration Contract pertaining to a Series, the Fund shall bear
all costs and expenses of registering the Shares with the Securities and
Exchange Commission and qualifying the Shares for offer and sale with state and
other regulatory bodies, and shall assume expenses related to communications
with shareholders of each Series, including (i) fees and disbursements of its
counsel and independent public accountant; (ii) the preparation, filing and
printing of registration statements and/or prospectuses or statements of
additional information required under the federal securities laws; (iii) the
preparation and mailing of annual and interim reports, prospectuses, statements
of additional information and proxy materials to shareholders; and (iv) the
qualifications of Shares for sale under the securities laws of such
jurisdictions as shall be selected by the Fund and UBS Global AM pursuant to
Paragraph 6(d) hereof, and the costs and expenses payable to each such
jurisdiction for continuing qualification therein.
3
8. Expenses of UBS Global AM. UBS Global AM shall bear all costs and
expenses of (i) preparing, printing and distributing any materials not prepared
by the Fund and other materials used by UBS Global AM in connection with the
sale of Shares under this Contract, including the additional cost of printing
copies of prospectuses, statements of additional information, and annual and
interim shareholder reports other than copies thereof required for distribution
to existing shareholders or for filing with any federal or state securities
authorities; (ii) any expenses of advertising incurred by UBS Global AM in
connection with such offering; (iii) the expenses of registration or
qualification of UBS Global AM as a broker or dealer under federal or state laws
and the expenses of continuing such registration or qualification; and (iv) all
compensation paid to UBS Global AM's employees and others for selling Shares,
and all expenses of UBS Global AM, its employees and others who engage in or
support the sale of Shares as may be incurred in connection with their sales
efforts.
9. Indemnification.
(a) The Fund agrees to indemnify, defend and hold UBS Global AM, its
officers and directors, and any person who controls UBS Global AM 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 UBS Global AM, its officers,
directors or any such controlling person may incur under the 1933 Act, or under
common law or otherwise, arising out of or based upon any alleged untrue
statement of a material fact contained in the Registration Statement or arising
out of or based upon any alleged omission to state a material fact required to
be stated in the Registration Statement or necessary to make the statements
therein not misleading, except insofar as such claims, demands, liabilities or
expenses 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 UBS Global AM to the Fund for use in
the Registration Statement; provided, however, that this indemnity agreement
shall not inure to the benefit of any person who is also an officer or Board
member of the Fund or who controls the Fund within the meaning of Section 15 of
the 1933 Act, unless a court of competent jurisdiction shall determine, or it
shall have been determined by controlling precedent, that such result would not
be against public policy as expressed in the 1933 Act; and further provided,
that in no event shall anything contained herein be so construed as to protect
UBS Global AM against any liability to the Fund or to the shareholders of any
Series to which UBS Global AM 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 Contract. The
Fund shall not be liable to UBS Global AM under this indemnity agreement with
respect to any claim made against UBS Global AM or any person indemnified unless
UBS Global AM or other such person shall have notified the Fund in writing of
the claim within a reasonable time after the summons or other first written
notification giving information of the nature of the claim shall have been
served upon UBS Global AM or such other person (or after UBS Global AM or the
person shall have received notice of service on any designated agent). However,
failure to notify the Fund of any claim shall not relieve the Fund from any
liability which it may have to UBS Global AM or any person against whom such
action is brought otherwise than on account of this indemnity agreement. The
Fund shall be entitled to participate at its own expense in the defense
4
or, if it so elects, to assume the defense of any suit brought to enforce any
claims subject to this indemnity agreement. If the Fund elects to assume the
defense of any such claim, the defense shall be conducted by counsel chosen by
the Fund and satisfactory to indemnified defendants in the suit whose approval
shall not be unreasonably withheld. In the event that the Fund elects to assume
the defense of any suit and retain counsel, the indemnified defendants shall
bear the fees and expenses of any additional counsel retained by them. If the
Fund does not elect to assume the defense of a suit, it will reimburse the
indemnified defendants for the reasonable fees and expenses of any counsel
retained by the indemnified defendants. The Fund agrees to notify UBS Global AM
promptly of the commencement of any litigation or proceedings against it or any
of its officers or Board members in connection with the issuance or sale of any
of its Shares.
(b) UBS Global AM agrees to indemnify, defend, and hold the Fund, its
officers and Board members and any person who controls 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 the Fund, its Board members
or officers, or any such controlling person may incur under the 1933 Act or
under common law or otherwise arising out of or based upon any alleged untrue
statement of a material fact contained in information furnished by UBS Global AM
to 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 necessary to
make such information not misleading, or arising out of any agreement between
UBS Global AM and any retail dealer, or arising out of any supplemental sales
literature or advertising used by UBS Global AM in connection with its duties
under this Contract. UBS Global AM shall 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 the claim, but if UBS Global AM elects to assume the defense,
the defense shall be conducted by counsel chosen by UBS Global AM and
satisfactory to the indemnified defendants whose approval shall not be
unreasonably withheld. In the event that UBS Global AM elects to assume the
defense of any suit and retain counsel, the defendants in the suit shall bear
the fees and expenses of any additional counsel retained by them. If UBS Global
AM does not elect to assume the defense of any suit, it will reimburse the
indemnified defendants in the suit for the reasonable fees and expenses of any
counsel retained by them.
10. Services Provided to the Fund by Employees of UBS Global AM. Any
person, even though also an officer, director, employee or agent of UBS Global
AM, who may be or become an officer, Board member, employee or agent of the
Fund, shall be deemed, when rendering services to the Fund or acting in any
business of the Fund, to be rendering such services to or acting solely for the
Fund and not as an officer, director, employee or agent or one under the control
or direction of UBS Global AM even though paid by UBS Global AM.
11. Duration and Termination.
(a) This Contract shall become effective upon the date written above,
provided that, with respect to any class of Shares of a 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 Board members who are
not interested persons of
5
the Fund ("Independent Board Members"), cast in person at a meeting called for
the purpose of voting on such action.
(b) Unless sooner terminated as provided herein, this Contract shall
continue in effect for two years from the above written date. Thereafter, if not
terminated, this Contract 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 Board Members,
cast in person at a meeting called for the purpose of voting on such approval,
and (ii) by the Board or with respect to a class of Shares of any given Series
by vote of a majority of the outstanding voting securities of that class of
Shares of such Series.
(c) Notwithstanding the foregoing, with respect to a class of Shares
of a Series, this Contract may be terminated at any time, without the payment of
any penalty, by vote of the Board, by vote of a majority of the Independent
Board Members or by vote of a majority of the outstanding voting securities of
that class of Shares of the Series on sixty days' written notice to UBS Global
AM or by UBS Global AM at any time, without the payment of any penalty, on sixty
days' written notice to the Fund or such Series. This Contract will
automatically terminate in the event of its assignment.
(d) Termination of this Contract with respect to a class of Shares
of any given Series shall in no way affect the continued validity of this
Contract or the performance thereunder with respect to any other classes of
Shares of that Series or any classes of Shares of any other Series.
12. Amendment of this Contract. No provision of this Contract may be
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.
13. Notice. Any notice required or permitted to be given by either
party to the other shall be deemed sufficient upon receipt in writing at the
other party's principal offices.
14. Governing Law. This Contract shall be construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws principles thereof, and in accordance with the 1940 Act, provided, however,
that Section 15 below will be construed in accordance with the laws of the State
of Delaware. 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.
15. Limitation of Liability of the Board Members and Shareholders of
the Fund. The Board members and the shareholders of the Fund shall not be liable
for any obligations of the Fund or any Series under this Contract, and UBS
Global AM agrees that, in asserting any rights or claims under this Contract, it
shall look only to the assets and property of the Fund or the particular Series
in settlement of such right or claims, and not to such Board members or
shareholders.
16. Miscellaneous. The captions in this Contract are included for
convenience of reference only and in no way define or delimit any of the
provisions
6
hereof or otherwise affect their construction or effect. If any provision of
this Contract shall be held or made invalid by a court decision, statute, rule
or otherwise, the remainder of this Contract shall not be affected thereby. This
Contract shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors. As used in this Contract, 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,
subject to such exemption as may be granted by the Securities and Exchange
Commission by any rule, regulation or order. Where the effect of a requirement
of the 1940 Act reflected in any provision of this Contract is relaxed by a
rule, regulation or order of the Securities and Exchange Commission, whether of
special or general application, such provision shall be deemed to incorporate
the effect of such rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this Contract to be
executed by their officers designated as of the day and year first above
written.
UBS MONEY SERIES
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxxxx
----------------------- --------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx Xxxxxxx
Title: Vice President and Title: Vice President and
Assistant Secretary Assistant Treasurer
UBS GLOBAL ASSET MANAGEMENT (US) INC.
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxxxxx
----------------------- --------------------------
Name: Xxxx Xxxxxxxx Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Director Title: Executive Director
7
