EXHIBIT 6(h)
EXCLUSIVE DEALER AGREEMENT
CLASS Y SHARES OF PAINEWEBBER OLYMPUS FUND
AGREEMENT made as of July 1, 1991 and amended November 10, 1995, between
Xxxxxxxx Xxxxxxxx Asset Management Inc. ("Xxxxxxxx Xxxxxxxx"), a Delaware
corporation, and PaineWebber Incorporated ("PaineWebber"), a Delaware
corporation.
WHEREAS PaineWebber Olympus Fund ("Fund") is a Massachusetts 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 offers for public sale one distinct series of
shares of beneficial interest ("Series"), which corresponds to a distinct
portfolio and has been designated as the PaineWebber Growth Fund; 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
Y shares ("Class Y Shares")(previously known as Class C shares); and
WHEREAS Xxxxxxxx Xxxxxxxx has entered into a Distribution Contract with the
Fund ("Distribution Contract") pursuant to which Xxxxxxxx Xxxxxxxx serves as
principal distributor in connection with the offering and sale of the Class Y
Shares of the above-referenced Series and of such other Series as may hereafter
be designated by the Board and have Class Y Shares established; and
WHEREAS Xxxxxxxx Xxxxxxxx desires to retain PaineWebber as its exclusive
agent in connection with the offering and sale of the Class Y Shares of each
such Series and to delegate to PaineWebber performance of certain of the
services which Xxxxxxxx Xxxxxxxx provides to the Fund under the Distribution
Contract; and
WHEREAS PaineWebber is willing to act as Xxxxxxxx Xxxxxxxx' exclusive agent
in connection with the offering and sale of such Class Y 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, Xxxxxxxx Xxxxxxxx and PaineWebber agree as follows:
1. Appointment. Xxxxxxxx Xxxxxxxx hereby appoints PaineWebber as its
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exclusive agent to sell and to arrange for the
sale of the Class Y Shares on the terms and for the period set forth in this
Contract. Xxxxxxxx Xxxxxxxx also appoints PaineWebber as its agent for the
performance of certain other services set forth herein which Xxxxxxxx Xxxxxxxx
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 Y 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 0000
Xxx.
2. Services, Duties and Representations of PaineWebber.
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(a) PaineWebber agrees to sell the Class Y Shares on a best efforts
basis from time to time during the term of this Agreement as agent for Xxxxxxxx
Xxxxxxxx and upon the terms described in this Contract and the Registration
Statement.
(b) Upon the later of the date of this Contract or the initial offering
of Class Y Shares by a Series, PaineWebber will hold itself available to receive
orders, satisfactory to PaineWebber and Xxxxxxxx Xxxxxxxx, for the purchase of
Class Y Shares and will accept such orders on behalf of Xxxxxxxx Xxxxxxxx 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 Y 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
Xxxxxxxx Xxxxxxxx. In making agreements with such dealers, PaineWebber shall act
only as principal and not as agent for Xxxxxxxx Xxxxxxxx or the Fund.
(d) The offering price of the Class Y 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. Xxxxxxxx Xxxxxxxx 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 Y Shares.
(f) To facilitate redemption of Class Y Shares by shareholders directly
or through dealers, PaineWebber is authorized but not required on behalf of
Xxxxxxxx Xxxxxxxx and the Fund to repurchase Class Y Shares presented to it by
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shareholders, its correspondent firms and other dealers at the price determined
in accordance with, and in the manner set forth in, the Registration Statement.
(g) PaineWebber represents and warrants that: (i) it is a member in
good standing of the National Association of Securities Dealers, Inc. and agrees
to abide by the Rules of Fair Practice of such Association; (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 Y Shares.
(h) PaineWebber shall not incur any debts or obligations on behalf of
Xxxxxxxx Xxxxxxxx or the Fund. PaineWebber shall bear all costs that it incurs
in selling the Class Y Shares and in complying with the terms and conditions of
this Contract as more specifically set forth in paragraph 8.
(i) PaineWebber shall not permit any employee or agent to offer or sell
Class Y Shares unless such person is duly licensed under applicable federal and
state laws and regulations.
(j) PaineWebber shall not (i) furnish any information or make any
representations concerning the Class Y Shares other than those contained in the
Registration Statement or in sales literature or advertising that has been
prepared or approved by Xxxxxxxx Xxxxxxxx as provided in paragraph 6 or (ii)
offer or sell the Class Y Shares in jurisdictions in which they have not been
approved for offer and sale.
3. Services Not Exclusive. The services furnished by PaineWebber
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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 Contract
are not impaired thereby. Nothing in this Contract 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 Xxxxxxxx Xxxxxxxx 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.
4. Compensation.
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Xxxxxxxx Xxxxxxxx shall not be obligated to pay any compensation to
PaineWebber hereunder nor to reimburse any of PaineWebber's expenses incurred
hereunder.
5. Duties of Xxxxxxxx Xxxxxxxx.
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(a) It is understood that the Fund reserves the right at any time to
withdraw all offerings of Class Y Shares of any or all Series by written notice
to Xxxxxxxx Xxxxxxxx.
(b) Xxxxxxxx Xxxxxxxx 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 Y
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 Xxxxxxxx Xxxxxxxx shall cooperate fully in the
efforts of PaineWebber to sell and arrange for the sale of the Class Y Shares
and in the performance of PaineWebber under this Contract.
(c) Xxxxxxxx Xxxxxxxx shall comply with all state and federal laws and
regulations applicable to a distributor of the Class Y Shares.
6. Advertising. Xxxxxxxx Xxxxxxxx agrees to make available such sales and
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advertising materials relating to the Class Y Shares as Xxxxxxxx Xxxxxxxx in its
discretion determines appropriate. PaineWebber agrees to submit all sales and
advertising materials developed by it relating to the Class Y Shares to Xxxxxxxx
Xxxxxxxx for approval. PaineWebber agrees not to publish or distribute such
materials without first receiving such approval in writing. Xxxxxxxx Xxxxxxxx
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
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applicable state and federal laws and regulations relating to the offer and sale
of the Class Y Shares. Xxxxxxxx Xxxxxxxx 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
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of (i) preparing, printing, and distributing any materials not prepared by the
Fund or Xxxxxxxx Xxxxxxxx and other materials used by PaineWebber in connection
with its offering of Class Y 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 Y
Shares, and all expenses of PaineWebber, its investment executives and employees
and others who engage in or support the
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sale of Class Y Shares as may be incurred in connection with their sales
efforts. PaineWebber shall bear such additional costs and expenses as it and
Xxxxxxxx Xxxxxxxx may agree upon, such agreement to be evidenced in a writing
signed by both parties. Xxxxxxxx Xxxxxxxx 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.
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(a) Xxxxxxxx Xxxxxxxx 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
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 Y Shares
provided by Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx 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 Contract.
(b) PaineWebber agrees to indemnify, defend, and hold Xxxxxxxx Xxxxxxxx
and its officers and directors, the Fund, its officers and trustees, and any
person who controls Xxxxxxxx Xxxxxxxx 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
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Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx 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 Contract.
10. Duration and Termination.
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(a) This Contract 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 this Contract 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.
(b) Unless sooner terminated as provided herein, this Contract shall
continue in effect for one year 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 Trustees, cast in
person at a meeting called for the purpose of voting on such approval, and (ii)
by the Board with respect to any given Series or by vote of a majority of the
outstanding voting securities of the Class Y Shares of such Series.
(c) Notwithstanding the foregoing, with respect to any Series this
Contract 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 Contract 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 Y Shares of such Series on 30 days' written notice to
Xxxxxxxx Xxxxxxxx and PaineWebber.
(d) Termination of this Contract with respect to any given Series
shall in no way affect the continued validity of
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this Contract or the performance thereunder with respect to any other Series.
This Contract will automatically terminate in the event of its assignment or in
the event that the Distribution contract is terminated.
11. Amendment of this Agreement. No provision of this Contract may be
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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.
12. Use of PaineWebber Name. PaineWebber hereby authorizes Xxxxxxxx
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Xxxxxxxx to use the name "PaineWebber Incorporated" or any name derived
therefrom in any sales or advertising materials prepared and/or used by Xxxxxxxx
Xxxxxxxx in connection with its duties as distributor of the Class Y Shares, but
only for so long as this Contract 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 Contract shall be construed in accordance with
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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 Contract are included for
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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 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Contract to be
executed by their officers designated as of the day and year first written
above.
XXXXXXXX XXXXXXXX ASSET
MANAGEMENT INC.
Attest: By:
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PAINEWEBBER INCORPORATED
Attest: By:
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