Exhibit No. 5(f)
EXCLUSIVE DEALER AGREEMENT
CLASS Y SHARES OF ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ PORTFOLIOS
AGREEMENT made as _____________________, 1998 between ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Asset
Management Inc. ("▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇"), a Delaware corporation, and PaineWebber
Incorporated ("PaineWebber"), a Delaware corporation.
WHEREAS ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Portfolios ("Fund") is a Delaware 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 three distinct series of shares of beneficial
interest ("Series"), which correspond to distinct portfolios and have been
designated as the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Aggressive Portfolio, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Moderate Portfolio and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Conservative Portfolio; 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"); and
WHEREAS ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ has entered into a Distribution Contract with the
Fund ("Distribution Contract") pursuant to which ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ provides to the Fund under the Distribution Contract;
and
WHEREAS PaineWebber is willing to act as ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇' 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, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and PaineWebber agree as follows:
1. Appointment. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ hereby appoints PaineWebber as its
-----------
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. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ also
appoints PaineWebber as its agent for the performance of certain other services
set forth herein which ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇ ▇▇▇.
2. Services, Duties and Representations of PaineWebber.
---------------------------------------------------
(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 ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, for the purchase of
Class Y Shares and will accept such orders on behalf of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇. In making agreements with such dealers, PaineWebber shall act
only as principal and not as agent for ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and the Fund to repurchase Class Y 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 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 Conduct Rules 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
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or the Fund. PaineWebber shall bear all costs that it incurs
in selling the Class Y Shares
- 2 -
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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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.
------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall not be obligated to pay any compensation to
PaineWebber hereunder nor to reimburse any of PaineWebber's expenses incurred
hereunder.
5. Duties of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
---------------------------
(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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
(b) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall comply with all state and federal laws and
regulations applicable to a distributor of the Class Y Shares.
6. Advertising. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ agrees to make available such sales and
-----------
advertising materials relating to the Class Y Shares as ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in its
discretion determines appropriate. PaineWebber agrees to submit all sales and
advertising materials developed by it
- 3 -
relating to the Class Y Shares to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ for approval. PaineWebber
agrees not to publish or distribute such materials without first receiving such
approval in writing. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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
-------
applicable state and federal laws and regulations relating to the offer and sale
of the Class Y Shares. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 of
-----------------------
(i) preparing, printing, and distributing any materials not prepared by the Fund
or ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ may agree upon, such agreement to be
evidenced in a writing signed by both parties. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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.
---------------
(a) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or the Fund or to
the shareholders of any Series to which PaineWebber would otherwise be subject
by
- 4 -
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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and its officers and directors, the Fund, its officers and trustees, and any
person who controls ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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.
------------------------
(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
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and PaineWebber.
- 5 -
(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. 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
---------------------------
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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------
to use the name "PaineWebber Incorporated" or any name derived therefrom in any
sales or advertising materials prepared and/or used by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 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
-------------
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.
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.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ASSET
MANAGEMENT INC.
Attest: By:
-------------------------- --------------------------
PAINEWEBBER INCORPORATED
Attest: By:
-------------------------- --------------------------
- 6 -
