EXHIBIT 6(E)
EXCLUSIVE DEALER AGREEMENT
CLASS B SHARES OF XXXXXX, XXXXXXX
INVESTMENT TRUST
AGREEMENT made as of January 30, 1995, between Xxxxxxxx Xxxxxxxx Asset
Management Inc. ("Xxxxxxxx Xxxxxxxx"), a Delaware corporation, and PaineWebber
Incorporated ("PaineWebber"), a Delaware corporation.
WHEREAS Xxxxxx, Peabody Investment Trust ("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 has five distinct series of shares of
beneficial interest ("Series"), which correspond to distinct portfolios and have
been designated as the Xxxxxx, Xxxxxxx Asset Allocation Fund, Xxxxxx, Peabody
Adjustable Rate Government Fund, Xxxxxx, Xxxxxxx Global Equity Fund, Xxxxxx,
Peabody Intermediate Fixed Income Fund and Xxxxxx, Xxxxxxx Global Fixed Income
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 B shares ("Class B Shares") and has adopted a Plan of Distribution
pursuant to Rule 12b-1 under the 1940 Act ("Plan") with respect to the shares of
the above-referenced Series and of such other Series as may hereafter be
designated by the Board; 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 B
Shares of each such Series; and
WHEREAS Xxxxxxxx Xxxxxxxx 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 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 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, 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 B Shares on
the terms and for the period set forth in this Agreement. 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 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 0000 Xxx.
2. Services, Duties and Representations of PaineWebber.
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(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 Xxxxxxxx
Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx,
for the purchase of Class B 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 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
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 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. Xxxxxxxx Xxxxxxxx shall promptly
furnish or arrange for the furnishing to PaineWebber of a statement of each
computation of net asset value.
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(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
Xxxxxxxx Xxxxxxxx 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.
(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 Section 26(d) of the National Association of Securities Dealers,
Inc. ("NASD") Rules of Fair Practice (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 Rules of Fair Practice 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
Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx 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
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are not to be deemed exclusive and PaineWebber shall be free to furnish similar
services to others
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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 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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(a) As compensation for its service activities under this Agreement with
respect to the Class B Shares, Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx 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, Xxxxxxxx Xxxxxxxx shall pay to
PaineWebber such commissions for sales of the Class B shares by PaineWebber
employees, correspondent firms and other dealers and such other compensation as
Xxxxxxxx Xxxxxxxx and PaineWebber may from time to time agree upon.
(c) Xxxxxxxx Xxxxxxxx' obligation to pay compensation to PaineWebber as
agreed upon pursuant to this paragraph 4 is not contingent upon receipt by
Xxxxxxxx Xxxxxxxx of any compensation from the Fund or Series. Xxxxxxxx
Xxxxxxxx shall advise the Board of any agreements or revised agreements as to
compensation to be paid by Xxxxxxxx Xxxxxxxx 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 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 B 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
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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 Xxxxxxxx
Xxxxxxxx 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.
(c) Xxxxxxxx Xxxxxxxx shall comply with all state and federal laws and
regulations applicable to a distributor of the Class B Shares.
6. Advertising. Xxxxxxxx Xxxxxxxx agrees to make available such sales and
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advertising materials relating to the Class B 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 B Shares to
Xxxxxxxx Xxxxxxxx for approval. PaineWebber agrees not to publish or distribute
such materials to the public 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 B 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 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 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
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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 B 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 Agreement.
(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 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
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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.
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(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.
(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 Xxxxxxxx Xxxxxxxx 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.
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(e) Notwithstanding the foregoing, Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx thereunder or
in the event that the Registration Statement is amended so as to reduce the
amount of compensation payable to Xxxxxxxx Xxxxxxxx under the Distribution
Contract, provided that Xxxxxxxx Xxxxxxxx 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
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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 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
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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 Agreement 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 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
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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.
XXXXXXXX XXXXXXXX ASSET
MANAGEMENT INC.
Attest: /s/ Xxxxxxxx Xxxxxxx By: /s/ Xxxxxx X. X'Xxxxxxx
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PAINEWEBBER INCORPORATED
Attest: /s/ Xxxxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxx
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