UNDERWRITING AGREEMENT
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AGREEMENT made as of this 20th day of February, 2001 between NUVEEN
EXCHANGE-TRADED INDEX TRUST, a business trust organized under the laws of the
Commonwealth of Massachusetts (the "Fund"), and NUVEEN INVESTMENTS, a Delaware
corporation (the "Underwriter").
W I T N E S S E T H
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In consideration of the mutual covenants hereinafter contained, it is
hereby agreed by and between the parties hereto as follows:
1. The Fund hereby appoints the Underwriter its agent for the distribution of
shares of beneficial interest, par value $.0l per share, including such
classes of shares as may now or hereafter be authorized, (the "Shares") in
jurisdictions wherein Shares may legally be offered for sale; provided, however,
that the Fund, in its absolute discretion, may: (a) issue or sell Shares
directly to holders of Shares of the Fund upon such terms and conditions and for
such consideration, if any, as it may determine, whether in connection with the
distribution of subscription or purchase rights, the payment or reinvestment of
dividends or distributions, or otherwise; and (b) issue or sell Shares at net
asset value in connection with merger or consolidation with, or acquisition of
the assets of, other investment companies or similar companies.
2. The Underwriter hereby accepts appointment as agent for the distribution of
the Shares and agrees that it will use its best efforts to sell such part of the
authorized Shares remaining unissued as from time to time shall be effectively
registered under the Securities Act of 1933 ("Securities Act"), at prices
determined as hereinafter provided and on terms hereinafter set forth, all
subject to applicable Federal and State laws and regulations and to the
Declaration of Trust of the Fund.
3. The Fund agrees that it will use its best efforts to keep effectively
registered under the Securities Act for sale, as herein contemplated, such
Shares as the Underwriter shall reasonably request and as the Securities and
Exchange Commission shall permit to be so registered.
4. Notwithstanding any other provision hereof, the Fund may terminate, suspend,
or withdraw the offering of the Shares, or Shares of any class, whenever, in its
sole discretion, it deems such action to be desirable.
5. The Underwriter shall sell Shares to, or through, brokers, dealers, banks or
other qualified financial intermediaries that have executed a Participant
Agreement in the form approved from time to time by the Fund (hereinafter
referred to as "Authorized Participants"), or others, in such manner not
inconsistent with the provisions hereof and the then effective Registration
Statement of the Fund under the Securities Act (and related Prospectus
Information and Statement of Additional Information) as the Underwriter may
determine from time to time, provided that no Authorized Participant, or other
person, shall be appointed nor authorized to act as agent of the Fund without
the prior consent of the Fund. The Underwriter shall have the right to enter
into agreements with brokers, dealers and banks (referred to herein as
"dealers") of its choice for the sale of Shares;
provided that the Fund shall approve the form of such agreements and shall
evidence such approval by filing said form and any amendments thereto as
attachments to this Agreement, which shall be filed as an exhibit to the Fund's
registration statement under the Securities Act. It is contemplated that such
dealers shall re-sell such Shares in open market transactions.
6. Shares offered for sale, or sold by the Underwriter, shall be sold at net
asset value per Share as determined from time to time by the Fund's custodian
plus any other costs or charges in accordance with the Prospectus relating to
the sale of Shares except as departure from such prices shall be permitted by
the rules and regulations of the Securities and Exchange Commission. Such sales
of Shares will be in aggregations of Shares ("Creation Unit Aggregations") as
defined in the Prospectus in effect from time to time.
7. The price the Fund shall receive for all Shares purchased from the Fund
shall be the net asset value used in determining the public offering price
applicable to the sale of such Shares.
8. The Underwriter shall issue and deliver, or cause to be issued and
delivered, on behalf of the Fund such confirmations of sales made by it as
agent, pursuant to this Agreement, as may be required. At, or prior to, the time
of issuance of Shares, the Underwriter will pay, or cause to be paid, to the
Fund the amount due the Fund for the sale of such Shares. Certificates shall be
issued, or Shares registered on the transfer books of the Fund, in such names
and denominations as the Underwriter may specify.
9. The Fund will execute any and all documents, and furnish any and all
information, which may be reasonably necessary in connection with the
qualification of the Shares for sale (including the qualification of the Fund as
a dealer, where necessary or advisable) in such states as the Underwriter may
reasonably request (it being understood that the Fund shall not be required,
without its consent, to comply with any requirement which, in its opinion, is
unduly burdensome).
10. The Fund will furnish to the Underwriter, from time to time, such
information with respect to the Fund and the Shares as the Underwriter may
reasonably request for use in connection with the sale of Shares. The
Underwriter agrees that it will not use or distribute, nor will it authorize
Authorized Participants, dealers or others to use, distribute or disseminate, in
connection with the sale of such Shares, any statements other than those
contained in the Fund's Prospectus Information and Statement of Additional
Information, except such supplemental literature or advertising as shall be
lawful under Federal and State securities laws and regulations, and that it will
furnish the Fund with copies of all such material.
11. In selling Shares for the account of the Fund, the Underwriter will in all
respects conform to the requirements of all Federal and State laws and the Rules
of Fair Practice of the National Association of Securities Dealers, Inc.
relating to such sales, and will indemnify and save harmless the Fund from any
damage or expense on account of any wrongful act by the Underwriter or any
employee, representative, or agent of the Underwriter. The Underwriter will
observe and be bound by all the provisions of the Declaration of Trust of the
Fund (and of any fundamental policies
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adopted by the Fund pursuant to the Investment Company Act of 1940, notice of
which shall have been given by the Fund to the Underwriter) which at the time in
any way require, limit, restrict, prohibit or otherwise regulate any action on
the part of the Underwriter.
12. The Underwriter will require each dealer and Authorized Participant to
conform to the provisions hereof and of the Registration Statement (and related
Prospectus) at the time in effect under the Securities Act with respect to the
public offering price of the Shares, and neither the Underwriter nor any such
dealer shall withhold the placing of purchase orders so as to make a profit
thereby.
13. The Fund will pay, or cause to be paid, expenses (including the fees and
disbursements of its own counsel) of any registration of Shares under the
Securities Act, expenses of qualifying or continuing the qualification of the
Shares for sale and, in connection therewith, of qualifying or continuing the
qualification of the Fund as a dealer or broker under the laws of such states as
may be designated by the Underwriter under the conditions herein specified, and
expenses incident to the issuance of the Shares such as the cost of Share
certificates, issue taxes, and fees of the transfer and shareholder service
agent. The Underwriter will pay, or cause to be paid, all expenses (other than
expenses which any dealer may bear pursuant to any agreement with the
Underwriter) incident to the sale and distribution of the Shares issued or sold
hereunder, including, without limiting the generality of the foregoing, all: (a)
expenses of printing and distributing any Prospectus and Statement of Additional
Information and of preparing, printing and distributing or disseminating any
other literature, advertising and selling aids in connection with such offering
of the Shares for sale (except that such expenses need not include expenses
incurred by the Fund in connection with the preparation, printing and
distribution of any report or other communication to holders of Shares in their
capacity as such), and (b) expenses of advertising in connection with such
offering. No transfer taxes, if any, which may be payable in connection with the
issue or delivery of Shares sold as herein contemplated, or of the certificates
for such Shares, shall be borne by the Fund, and the Underwriter will indemnify
and hold harmless the Fund against liability for all such transfer taxes.
14. This agreement shall continue in effect until August 1, 2002, unless and
until terminated by either party as hereinafter provided, and will continue from
year to year thereafter, but only so long as such continuance is specifically
approved, at least annually, in the manner required by the Investment Company
Act of l940. Either party hereto may terminate this agreement on any date by
giving the other party at least six months' prior written notice of such
termination, specifying the date fixed therefor. Without prejudice to any other
remedies of the Fund in any such event, the Fund may terminate this Agreement at
any time immediately upon any failure of fulfillment of any of the obligations
of the Underwriter hereunder.
15. This agreement shall automatically terminate in the event of its assignment.
16. Any notice under this agreement shall be in writing, addressed, and
delivered or mailed, postage pre-paid, to the other party at such address as
such other party may designate for the receipt of such notice.
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17. This agreement has been entered by the Fund and not individually by the
trustees of the Fund, and any obligation of the Fund shall be binding only upon
the assets of the Fund and shall not be binding upon any trustee, officer or
shareholder of the Fund. Neither the authorization of any action by the trustees
or shareholders of the Fund nor the execution of this agreement on behalf of the
Fund shall impose any liability upon any Trustee, officer or shareholder of the
Fund.
IN WITNESS WHEREOF, the Fund and the Underwriter have each caused this agreement
to be executed on its behalf as of the day and year first above written.
NUVEEN EXCHANGE-TRADED INDEX TRUST
By /s/ Xxxxxxx X. Xxxxxxxxx
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Vice President
Attest:
/s/ Xxxxxxxx X. X'Xxxx
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Assistant Secretary
NUVEEN INVESTMENTS
By /s/ Xxxx X. Berkshire
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Senior Vice President
Attest:
/s/ Xxxxxxx X. Xxxxxxx
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Assistant Secretary
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