PAINEWEBBER INDEX TRUST
DISTRIBUTION CONTRACT
CLASS A AND CLASS Y SHARES
CONTRACT made as of ____________, 1997, between PAINEWEBBER INDEX
TRUST, a Delaware business trust ("Fund"), and XXXXXXXX XXXXXXXX ASSET
MANAGEMENT INC., a Delaware corporation ("Xxxxxxxx Xxxxxxxx").
WHEREAS the Fund is registered under the Investment Company Act of
l940, as amended ("l940 Act"), as an open-end management investment company and
intends to offer for public sale one distinct series of shares of beneficial
interest ("Series"), which corresponds to a distinct portfolio and has been
designated as PaineWebber S&P 500 Index 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 A shares ("Class A Shares") and an unlimited number of shares of
beneficial interest of the above-referenced Series as Class Y shares ("Class Y
Shares")(collectively referred to as "Shares"); and
WHEREAS the Fund has adopted a Plan of Distribution pursuant to Rule
12b-1 under the 1940 Act for its Class A Shares ("Plan") and desires to retain
Xxxxxxxx Xxxxxxxx as principal distributor 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 have Class A Shares established;
and
WHEREAS Xxxxxxxx Xxxxxxxx is willing to act as principal distributor 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 Xxxxxxxx Xxxxxxxx as its
exclusive agent to be the principal distributor to sell and to arrange for the
sale of the Shares on the terms and for the period set forth in this Contract.
Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx.
(a) Xxxxxxxx Xxxxxxxx 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 the Shares to the public by a Series, Xxxxxxxx Xxxxxxxx will hold
itself available to receive purchase orders, satisfactory to Xxxxxxxx Xxxxxxxx,
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) Xxxxxxxx Xxxxxxxx in its discretion may enter into
agreements to sell Shares to such registered and qualified retail dealers,
including but not limited to PaineWebber Incorporated ("PaineWebber"), as it may
select. In making agreements with such dealers, Xxxxxxxx Xxxxxxxx shall act only
as principal and not as agent for the Fund.
(d) The offering price of the Shares of each Series shall be
the net asset value per Share as next determined by the Fund following receipt
of an order at Xxxxxxxx Xxxxxxxx' principal office. The Fund shall promptly
furnish Xxxxxxxx Xxxxxxxx with a statement of each computation of net asset
value.
(e) Xxxxxxxx Xxxxxxxx shall not be obligated to sell any
certain number of Shares.
(f) To facilitate redemption of Shares by shareholders
directly or through dealers, Xxxxxxxx Xxxxxxxx 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) With respect to the Class A Shares, Xxxxxxxx Xxxxxxxx
shall provide ongoing shareholder services, which include responding to
shareholder inquiries, providing shareholders with information on their
investments in the Class A Shares and any other services now or hereafter deemed
to be appropriate subjects for the payments of "service fees" under Section
(b)(9) of Rule 2830 of the Conduct Rules of the National Association of
Securities Dealers, Inc. ("NASD") (collectively, "service activities"). "Service
activities" with respect to the Shares do not include the transfer
agency-related and other services for which PaineWebber receives compensation
under the Service Contract between PaineWebber and the Fund.
(h) Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx shall not sell or knowingly provide such list or
lists to any unaffiliated person.
3. Authorization to Enter into Exclusive Dealer Agreements and to
Delegate Duties as Distributor. With respect to the Shares of any or all Series,
Xxxxxxxx Xxxxxxxx may enter into an exclusive dealer agreement with PaineWebber
or any other registered and qualified dealer with respect to sales of the Shares
or the provision of service activities. In a separate contract or as part of any
such exclusive dealer agreement, Xxxxxxxx Xxxxxxxx also may delegate to
2
PaineWebber or another registered and qualified dealer ("sub-distributor") any
or all of its duties specified in this Contract, provided that such separate
contract or exclusive dealer agreement imposes on the sub-distributor bound
thereby all applicable duties and conditions to which Xxxxxxxx Xxxxxxxx is
subject under this Contract, and further provided that such separate contract or
exclusive dealer agreement meets all requirements of the 1940 Act and rules
thereunder.
4. Services Not Exclusive. The services furnished by Xxxxxxxx Xxxxxxxx
hereunder are not to be deemed exclusive and Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx, who may also be
a trustee, 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.
(a) As compensation for its service activities under this
contract with respect to the Class A Shares, Xxxxxxxx Xxxxxxxx shall receive
from the Fund a service fee at the rate and under the terms and conditions of
the Plan adopted by the Fund with respect to the Class A Shares of the Series,
as such Plan is amended from time to time, and subject to any further
limitations on such fee as the Board may impose.
(b) The Fund shall have no obligation to compensate or
reimburse Xxxxxxxx Xxxxxxxx for any services performed by it hereunder with
respect to the Class Y Shares.
(c) Xxxxxxxx Xxxxxxxx may reallow any or all of the service
fees which it is paid under this Contract with respect to the Class A shares to
such dealers as Xxxxxxxx Xxxxxxxx may from time to time determine.
6. Duties of the Fund.
(a) The Fund reserves the right at any time to withdraw
offering Shares of any or all Series by written notice to Xxxxxxxx Xxxxxxxx at
its principal office.
(b) The Fund shall determine in its sole discretion whether
certificates shall be issued with respect to the Shares. If the Fund has
determined that certificates shall be issued, the Fund will not cause
certificates representing Shares to be issued unless so requested by
shareholders. If such request is transmitted by Xxxxxxxx Xxxxxxxx, the Fund will
cause certificates evidencing Shares to be issued in such names and
denominations as Xxxxxxxx Xxxxxxxx shall from time to time direct.
(c) The Fund shall keep Xxxxxxxx Xxxxxxxx fully informed of
its affairs and shall make available to Xxxxxxxx Xxxxxxxx copies of all
information, financial statements, and other papers which Xxxxxxxx Xxxxxxxx may
reasonably request for use in connection with the distribution of the 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 Xxxxxxxx Xxxxxxxx
3
may request, and the Fund shall cooperate fully in the efforts of Xxxxxxxx
Xxxxxxxx to sell and arrange for the sale of the Shares of the Series and in the
performance of Xxxxxxxx Xxxxxxxx under this Contract.
(d) The Fund shall take, from time to time, all necessary
action, including payment of the related filing fee, as may be necessary to
register the Shares under the 1933 Act to the end that there will be available
for sale such number of Shares as Xxxxxxxx Xxxxxxxx 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.
(e) 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 Xxxxxxxx
Xxxxxxxx and the Fund may approve, and, if necessary or appropriate in
connection therewith, to qualify and maintain the qualification of the Fund as a
broker or dealer in such jurisdictions; provided that the Fund shall not be
required to amend its Trust Instrument 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. Xxxxxxxx Xxxxxxxx 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. The Fund shall bear all costs and expenses of
registering the Shares with the Securities and Exchange Commission and 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 the Shares for sale and of the Fund as a broker or dealer
under the securities laws of such jurisdictions as shall be selected by the Fund
and Xxxxxxxx Xxxxxxxx pursuant to Paragraph 6(e) hereof, and the costs and
expenses payable to each such jurisdiction for continuing qualification therein.
8. Expenses of Xxxxxxxx Xxxxxxxx. Xxxxxxxx Xxxxxxxx shall bear all
costs and expenses of (i) preparing, printing and distributing any materials not
prepared by the Fund and other materials used by Xxxxxxxx Xxxxxxxx in connection
with the sale of the 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 Xxxxxxxx
Xxxxxxxx in connection with such offering; (iii) the expenses of registration or
4
qualification of Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx' employees and others for selling the
Shares, and all expenses of Xxxxxxxx Xxxxxxxx, its employees and others who
engage in or support the sale of the Shares as may be incurred in connection
with their sales efforts.
9. Indemnification.
(a) The Fund agrees to indemnify, defend and hold Xxxxxxxx
Xxxxxxxx, its officers and directors, and any person who controls Xxxxxxxx
Xxxxxxxx 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
Xxxxxxxx Xxxxxxxx, 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
Xxxxxxxx Xxxxxxxx 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 trustee 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 Xxxxxxxx Xxxxxxxx against any liability to
the Fund or to the shareholders of any Series to which Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx under this indemnity agreement with respect to any claim
made against Xxxxxxxx Xxxxxxxx or any person indemnified unless Xxxxxxxx
Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx or such other person (or after Xxxxxxxx Xxxxxxxx
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 Xxxxxxxx Xxxxxxxx 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 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 Xxxxxxxx Xxxxxxxx promptly of
5
the commencement of any litigation or proceedings against it or any of its
officers or trustees in connection with the issuance or sale of any of its
Shares.
(b) Xxxxxxxx Xxxxxxxx agrees to indemnify, defend, and hold
the Fund, its officers and trustees 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 trustees 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 in writing by
Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx and any retail dealer, or arising out of any
supplemental sales literature or advertising used by Xxxxxxxx Xxxxxxxx in
connection with its duties under this Contract. Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx
Xxxxxxxx elects to assume the defense, the defense shall be conducted by counsel
chosen by Xxxxxxxx Xxxxxxxx and satisfactory to the indemnified defendants whose
approval shall not be unreasonably withheld. In the event that Xxxxxxxx Xxxxxxxx
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 Xxxxxxxx Xxxxxxxx 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. Limitation of Liability of the Trustees and Shareholders of the
Fund. The trustees of the Fund and the shareholders of any Series shall not be
liable for any obligations of the Fund or any Series under this Contract, and
Xxxxxxxx Xxxxxxxx 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
trustees or shareholders.
11. Services Provided to the Fund by Employees of Xxxxxxxx Xxxxxxxx.
Any person, even though also an officer, director, employee or agent of Xxxxxxxx
Xxxxxxxx, who may be or become an officer, trustee, 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 Xxxxxxxx Xxxxxxxx even though paid by Xxxxxxxx Xxxxxxxx.
12. Duration and Termination.
(a) This Contract shall become effective upon the date
hereabove written, provided that, with respect to any Series, this Contract
shall not take effect unless such action with respect to a Class 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, with
6
respect to Class A Shares, also have no direct or indirect financial interest in
the operation of the Plan relating to the Series 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 or, with respect to a particular Class of Shares
of given Series, by vote of a majority of the outstanding voting securities of
that Class.
(c) Notwithstanding the foregoing, with respect to any 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 Trustees or by
vote of a majority of the outstanding voting securities of the applicable Class
of Shares of such Series on sixty days' written notice to Xxxxxxxx Xxxxxxxx or
by Xxxxxxxx Xxxxxxxx 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 any given
Series shall in no way affect the continued validity of this Contract or the
performance thereunder with respect to any other Series.
13 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.
14. Governing Law. This Contract 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 l940 Act, the latter shall control.
15. 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.
7
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 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 l940 Act.
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.
PAINEWEBBER INDEX TRUST
Attest: _______________________ By:__________________________________
XXXXXXXX XXXXXXXX ASSET
MANAGEMENT INC.
Attest: _______________________ By:__________________________________
