FRESCO'sm' INDEX SHARES FUNDS
PRINCIPAL UNDERWRITING AGREEMENT
Agreement made this 10th day of September, 2002, by and between
Fresco'sm' Shares Index Funds, a Massachusetts business trust (the "Trust"), and
UBS Global Asset Management (US) Inc., a Delaware corporation (the "Principal
Underwriter").
WHEREAS, the Trust is a registered open-end management investment
company organized as a series trust offering a number of portfolios of
securities (each a "Fund" and collectively the "Funds"), each investing
primarily in equity securities selected to reflect the performance of a
specified securities index, having filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form N-1A (Nos.
333-92109 and 811-21145) under the Securities Act of 1933, as amended (the "1933
Act"), and the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Trust intends to create and redeem shares of beneficial
interest, par value $.01 per Share (the "Shares") of each Fund on a continuous
basis at their net asset value only in aggregations constituting a Creation
Unit, as such term is defined in the Registration Statement;
WHEREAS, the Shares of each Fund will be listed on the New York Stock
Exchange ("NYSE") and traded under the symbols set forth in Schedule I hereto;
WHEREAS, the Trust desires to retain the Principal Underwriter to act
as the principal underwriter with respect to the issuance and distribution of
Creation Units of Shares of each Fund, hold itself available to receive and
process orders for such Creation Units in the manner set forth in the Trust's
Prospectus, and to enter into arrangements with broker-dealers who may solicit
purchases of Shares and with broker-dealers and others to provide for servicing
of shareholder accounts and for distribution assistance, including broker-dealer
and shareholder support;
WHEREAS, the Board of Trustees of the Trust ("Board") may in the future
adopt a plan of service and/or distribution (each a "Distribution and Service
Plan") pursuant to Rule 12b-1 under the 1940 Act with respect to certain Funds
and may make payments to the Principal Underwriter pursuant to such Distribution
and Service Plans, subject to and in accordance with the terms and conditions
thereof and any related agreements;
WHEREAS, the Principal Underwriter is a registered broker-dealer under
the Securities Exchange Act of 1934, as amended (the "1934 Act") and a member of
the National Association of Securities Dealers ("NASD"); and
WHEREAS, the Principal Underwriter desires to provide such services to
the Trust.
NOW, THEREFORE, in consideration of the mutual promises and
undertakings herein contained, the parties agree as follows:
1. Appointment. The Trust hereby appoints the Principal Underwriter as the
exclusive principal underwriter for Creation Units of Shares of each Fund listed
in Schedule I hereto, as
may be amended by the parties from time to time, on the terms and for the period
set forth in this Agreement and subject to the registration requirements of the
1933 Act and of the laws governing the sale of securities in the various states,
and the Principal Underwriter hereby accepts such appointment and agrees to act
in such capacity hereunder.
2. Definitions. Wherever they are used herein, the following terms have the
following respective meanings:
a. "Prospectus" means the Prospectus and Statement of Additional
Information constituting parts of the Registration Statement of the Trust under
the 1933 Act and the 1940 Act as such Prospectus and Statement of Additional
Information may be amended or supplemented and filed with the Commission from
time to time;
b. "Registration Statement" means the registration statement most
recently filed from time to time by the Trust with the Commission and effective
under the 1933 Act and the 1940 Act, as such registration statement is amended
by any amendments thereto at the time in effect;
c. All capitalized terms used but not defined in this Agreement shall
have the meanings ascribed to such terms in the Registration Statement and the
Prospectus.
3. Duties of the Principal Underwriter.
(a) The Trust grants to the Principal Underwriter the exclusive right
to receive all orders for purchases of Creation Units of each Fund from DTC
Participants which have executed a Participant Agreement ("Authorized
Participants") and to transmit such orders to the Trust in accordance with the
Registration Statement and Prospectus; provided, however, that nothing herein
shall affect or limit the right and ability of the Trust to accept Deposit
Securities and related Cash Components through or outside the Clearing Process,
and as provided in and in accordance with the Registration Statement and
Prospectus. The Trust acknowledges that the Principal Underwriter shall not be
obligated to accept any certain number of orders for Creation Units and nothing
herein shall prevent the Principal Underwriter from entering into like
distribution arrangements with other investment companies.
(b) The Principal Underwriter agrees to act as agent of the Trust with
respect to the continuous distribution of Creation Units of each Fund as set
forth in the Registration Statement and in accordance with the provisions
thereof. The Principal Underwriter further agrees as follows: (a) at the request
of the Trust, the Principal Underwriter and the Transfer Agent shall enter into
Participant Agreements with Authorized Participants in accordance with the
Registration Statement and Prospectus and in the form attached hereto as Exhibit
A; (b) the Principal Underwriter shall cause confirmations of Creation Unit
purchase order acceptances to be generated and transmitted to the purchaser; (c)
the Principal Underwriter shall deliver or arrange for delivery of copies of the
prospectus, included in the Registration Statement, to purchasers of such
Creation Units and upon request the Statement of Additional Information; and (d)
the Principal Underwriter shall maintain telephonic, facsimile and/or access to
direct computer communications links with the Transfer Agent.
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(c) (i) The Principal Underwriter agrees to use all reasonable efforts,
consistent with its other business, to facilitate the purchase of Creation Units
through Authorized Participants in accordance with the procedures set forth in
the Prospectus and the Participant Agreement.
(ii) The Principal Underwriter shall, when it deems necessary and
at its own expense, execute the following agreements in the forms and as
approved by the Board, providing for activities which the Principal Underwriter
deems reasonable and appropriate and which are primarily intended to result in
the sale of such Creation Units: (A) selected or soliciting dealer agreements
("Soliciting Dealer Agreements") with registered broker-dealers and other
eligible entities providing for the purchase of Creation Units of Shares of the
Funds and related promotional activities, and (B) investor services agreements
("Investor Services Agreements") with broker-dealers or other financial
institutions providing for broker-dealer, investor and stockholder support,
account maintenance and educational and promotional services relating to the
Shares and facilitation through broker-dealers and other persons of
communications with beneficial owners of Shares. Pursuant to this Agreement, the
Soliciting Dealer Agreements and the Investor Services Agreements, the Principal
Underwriter shall facilitate the coordination of the performance of any
marketing and promotional services, including advertising; the development and
implementation of any marketing plan; and clearing and filing all advertising,
sales, marketing and promotional materials of the Funds with the NASD as
provided below.
(d) The Principal Underwriter agrees to administer, on behalf of the
Trust, any Distribution and Service Plans adopted by the Board. The Principal
Underwriter shall, at its own expense, set up and maintain a system of recording
payments for fees and reimbursement of expenses disseminated pursuant to this
Agreement and any other related agreements under the Funds' Distribution and
Service Plans, if any, and shall, pursuant to the 1940 Act, report such payment
activity under any such Distribution and Service Plans to the Trust at least
quarterly.
(e) The Principal Underwriter shall make available toll-free lines for
direct investor and shareholder use between the hours of 9:30 a.m. and 4:00 p.m.
New York time on each day the NYSE is open for business, with appropriate NASD
licensed order taking and distribution services staff.
(f) All activities by the Principal Underwriter and its agents and
employees which are primarily intended to result in the sale of Creation Units
shall comply with the Registration Statement and Prospectus, the instructions of
the Board and all applicable laws, rules and regulations including, without
limitation, all rules and regulations made or adopted pursuant to the 1940 Act
by the Commission or any securities association registered under the 1934 Act,
including the NASD and the NYSE.
(g) Except as otherwise noted in the Registration Statement and
Prospectus, the offering price for all Creation Units of Shares will be the
aggregate net asset value of the Shares per Creation Unit of the relevant Fund,
as determined in the manner described in the Registration Statement and
Prospectus.
(h) If and whenever the determination of net asset value is suspended
and until such suspension is terminated, no further orders for Creation Units
will be processed by the Principal
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Underwriter except such unconditional orders as may have been placed with the
Principal Underwriter before it had knowledge of the suspension. In addition,
the Trust reserves the right to suspend sales and Principal Underwriter's
authority to process orders for Creation Units on behalf of the Trust, upon due
notice to the Principal Underwriter, if, in the judgment of the Trust, it is in
the best interests of the Trust to do so. Suspension will continue for such
period as may be determined by the Trust.
(i) The Principal Underwriter is not authorized by the Trust to give
any information or to make any representations other than those contained in the
Registration Statement or Prospectus or contained in shareholder reports or
other material that may be prepared by or on behalf of the Trust for the
Principal Underwriter's use. The Principal Underwriter shall be entitled to rely
on and shall not be responsible in any way for information provided to it by the
Trust and its respective service providers and shall not be liable or
responsible for the errors and omissions of such service providers, provided
that the foregoing shall not be construed to protect the Principal Underwriter
against any liability to the Trust or the Trust's shareholders to which the
Principal Underwriter 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 and duties under this
Agreement.
(j) The Board shall approve the form of any Soliciting Dealer Agreement
and Investor Services Agreement to be entered into by the Principal Underwriter.
(k) At the request of the Trust, the Principal Underwriter shall enter
into agreements in the form specified by the Trust (each a "Participant
Agreement") with participants in the system for book-entry of The Depository
Trust Company as described in the Prospectus.
(l) The Principal Underwriter shall arrange to provide the NYSE (and
any other stock exchange on which the Shares may be listed) with copies of
Prospectuses to be provided to purchasers in the secondary market.
(m) The Principal Underwriter shall review all sales and marketing
materials for compliance with applicable laws and the conditions of any
applicable Exemptive order, and file such materials when necessary or
appropriate.
(n) The Principal Underwriter is authorized to and may employ or
associate with such person or persons as the Principal Underwriter may deem
desirable to assist it in performing its duties under this Agreement; provided,
however, that the compensation of such person or persons shall be paid by the
Principal Underwriter and that the Principal Underwriter shall be as fully
responsible to the Trust for the acts and omissions of any such person or
persons as it is for its own acts and omissions.
4. Duties of the Trust.
(a) The Trust agrees to issue Creation Unit aggregations of Shares of
each Fund and to request The Depository Trust Company to record on its books the
ownership of such Shares in accordance with the book-entry system procedures
described in the Prospectus in such amounts
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as the Principal Underwriter has requested through the Transfer Agent in writing
or other means of data transmission, as promptly as practicable after receipt by
the Trust of the requisite Deposit Securities and Cash Component (together with
any fees) and acceptance of such order, upon the terms described in the
Registration Statement. The Trust may reject any order for Creation Units or
stop all receipts of such orders at any time upon reasonable notice to the
Principal Underwriter, in accordance with the provisions of the Prospectus.
(b) The Trust agrees that it will take all action necessary to register
an indefinite number of Shares under the 1933 Act. The Trust will make available
to the Principal Underwriter such number of copies of its then currently
effective Prospectus, or any supplement, as the Principal Underwriter require to
meet its obligations hereunder or as it may otherwise reasonably request. The
Trust will furnish to the Principal Underwriter copies of all information,
financial statements and other documents which the Principal Underwriter may
reasonably request for use in connection with the distribution of Creation
Units. The Trust shall keep the Principal Underwriter informed of the
jurisdictions in which Shares of the Trust are authorized for sale and shall
promptly notify the Principal Underwriter of any change in this information. The
Principal Underwriter shall not be liable for damages resulting from the sale of
Shares in authorized jurisdictions where the Principal Underwriter had no
information from the Trust that such sale or sales were unauthorized at the time
of such sale or sales.
(c) The Trust represents to the Principal Underwriter that the
Registration Statement and Prospectus filed by the Trust with the Commission
with respect to the Trust have been prepared in conformity with the requirements
of the 1933 Act, the 1940 Act and the rules and regulations of the Commission
thereunder. The Trust will notify the Principal Underwriter promptly of any
amendment to the Registration Statement or supplement to the Prospectus and any
stop order suspending the effectiveness of the Registration Statement.
5. Fees and Expenses
(a) The Trust will, with respect to each Fund, pay to the Principal
Underwriter all fees and expenses pursuant to the terms of the Distribution and
Service Plan, if any, in effect for each respective Fund.
(b) The Principal Underwriter will bear the following costs and
expenses relating to the distribution of Creation Units of the Funds: (a) the
costs of processing and maintaining records of creations of Creation Units; (b)
the costs of maintaining the records required of a broker-dealer registered
under the 1934 Act; (c) the expenses of maintaining its registration or
qualification as a dealer or broker under federal or state laws; (d) the
expenses incurred by the Principal Underwriter in connection with NASD filing
fees; and (e) all other expenses incurred in connection with the distribution
services contemplated herein, except as specifically provided in this Agreement.
(c) The Principal Underwriter shall pay, from the fees received by it
from the Funds pursuant to Distribution and Service Plans, if any, all fees and
make reimbursement of expenses, pursuant to and in accordance with any and all
Soliciting Dealer and/or Investor Services Agreements, as approved by the Board,
as set forth in Section 3 of this Agreement.
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6. Indemnification.
(a) The Trust agrees to indemnify, defend and hold the Principal
Underwriter, its officers and directors, and any person who controls the
Principal Underwriter within the meaning of Section 15 of the 1933 Act (each, an
"Indemnitee"), free and harmless from and against any and all losses, claims,
demands, liabilities and expenses, including the cost of investigating or
defending such claims, demands or liabilities and any counsel fees
(collectively, "Losses") incurred 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, shareholder report or
other information filed or made public by the Trust (as from time to time
amended) 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 Losses
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 or on behalf of the Principal Underwriter to
the Trust 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 Trust or who controls the Trust 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; further
provided, that Trust will not indemnify any Indemnitee with respect to any
untrue statement or omission made in the Registration Statement or Prospectus
that is subsequently corrected in such document (or an amendment thereof or
supplement thereto) if a copy of the Prospectus (or such amendment or
supplement) was not sent or given to the person asserting any such loss,
liability, claim, damage or expense at or before the written confirmation to
such person in any case where such delivery is required by the 1933 Act and the
Trust had notified the Principal Underwriter of the amendment or supplement
prior to the sending of the confirmation; and further provided, that in no event
shall anything contained herein be so construed as to protect an Indemnitee
against any liability to the Trust or to the shareholders of any Fund to which
such Indemnitee 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. The Trust shall not
be liable to an Indemnitee under this indemnity agreement with respect to any
claim made against such Indemnitee unless the Indemnitee shall have notified the
Trust 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 the Indemnitee or such other person (or after the
Indemnitee shall have received notice of service on any designated agent).
However, failure to notify the Trust of any claim shall not relieve the Trust
from any liability which it may have to any Indemnitee against whom such action
is brought otherwise than on account of this indemnity agreement. The Trust
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 Trust elects to assume the defense of any
such claim, the defense shall be conducted by counsel chosen by the Trust and
satisfactory to the Indemnitee defendant or defendants in the suit whose
approval shall not be unreasonably withheld. In the event that the Trust elects
to assume the defense of any suit and retain counsel, the Indemnitee defendant
or defendants in the suit shall bear the fees and expenses of any additional
counsel retained by them. If the Trust does not elect to assume the defense of a
suit, it will reimburse the Indemnitee defendant or defendants for the
reasonable fees and expenses of any counsel retained
6
by them. The Trust agrees to notify the Principal Underwriter promptly of 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 the Creation Units
or the Shares.
(b) The Principal Underwriter agrees to indemnify, defend, and hold the
Trust, its officers and Trustees and any person who controls the Trust within
the meaning of Section 15 of the 1933 Act (for purposes of this paragraph, the
Trust and each of its Trustees and officers and its controlling persons are
collectively referred to as the "Trust Affiliates"), free and harmless from and
against any and all Losses which the Trust Affiliate may incur under the 1933
Act or under common law or otherwise arising out of or based upon (i) the
allegation of any wrongful act of the Principal Underwriter or any of its
employees or (ii) allegation that the Registration Statement, Prospectus,
shareholder reports or other information filed or made public by the Trust (as
from time to time amended) included an untrue statement of a material fact or
omitted to state a material fact required to be stated or necessary in order to
make the statements not misleading, insofar as the statement or omission was
made in reliance upon, and in conformity with written information furnished to
the Trust by or on behalf of the Principal Underwriter. In no case (i) is the
indemnity of the Principal Underwriter in favor of any Trust Affiliate to be
deemed to protect any Trust Affiliate against any liability to the Trust or its
security holders to which such Trust Affiliate 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 and
duties under this Agreement, or (ii) is the Principal Underwriter to be liable
under its indemnity agreement contained in this paragraph with respect to any
claim made against any Trust Affiliate unless the Trust Affiliate shall have
notified the Principal Underwriter in writing of the claim within a reasonable
time after the summons or the first written notification giving information of
the nature of the claim shall have been served upon the Trust Affiliate (or
after the Trust Affiliate shall have received notice of service on any
designated agent). However, failure to notify the Principal Underwriter of any
claim shall not relieve the Principal Underwriter from any liability which it
may have to the Trust Affiliate against whom the action is brought otherwise
than on account of its indemnity agreement contained in this paragraph. The
Principal Underwriter 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 the Principal Underwriter elects to assume the
defense, the defense shall be conducted by counsel chosen by the Principal
Underwriter and satisfactory to the indemnified defendants whose approval shall
not be unreasonably withheld. In the event that the Principal Underwriter 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
the Principal Underwriter 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. The Principal Underwriter agrees
to notify the Trust promptly of the commencement of any litigation or
proceedings against it in connection with the issuance and sale of any of the
shares.
7. Representations.
(a) The Principal Underwriter represents and warrants that (i) it is
duly organized as a Delaware corporation and is and at all times will remain
duly authorized and licensed to carry out its services as contemplated herein;
(ii) the execution, delivery and performance of this Agreement are within its
power and have been duly authorized by all necessary action; and (iii)
7
its entering into this Agreement or providing the services contemplated hereby
does not conflict with or constitute a default or require a consent under or
breach of any provision of any agreement or document to which the Principal
Underwriter is a party or by which it is bound and (iv) it is registered as a
broker-dealer under the 1934 Act and is a member of the NASD.
(b) The Trust represents and warrants that (i) it is duly organized as
a Massachusetts business trust and is and at all times will remain duly
authorized to carry out its obligations as contemplated herein; (ii) it is
registered as an investment company under the 1940 Act; (iii) the execution,
delivery and performance of this Agreement are within its power and have been
duly authorized by all necessary action; and (iv) its entering into this
Agreement does not conflict with or constitute a default or require a consent
under or breach of any provision of any agreement or document to which the Trust
is a party or by which it is bound.
8. Duration, Termination and Amendment.
(a) This Agreement shall be effective upon the date written above,
provided that, with respect to any Fund or class of Shares of a Fund, this
Agreement 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 Board members
who are not interested persons of the Fund and, for a class of Shares for which
a Distribution and Service Plan has been adopted, also have no direct or
indirect financial interest in the operation of the Distribution and Service
Plan or in any agreements related thereto (all such Board members collectively
being referred to herein as the "Independent Board Members"), 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 two years from the above written date. Thereafter, if not
sooner 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 Board
Members 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 class of Shares of any
given Fund by vote of a majority of the outstanding voting securities of that
class of Shares of such Fund.
(c) Notwithstanding the foregoing, this Agreement may be terminated at
any time, without the payment of any penalty, as to each Fund or class of Shares
(i) by vote of a majority of the Independent Trustees or (ii) by vote of a
majority of the outstanding voting securities of such Fund of class of Shares,
on at least sixty (60) days prior written notice to the Principal Underwriter.
In addition, this Agreement may be terminated at any time by the Principal
Underwriter, without the payment of any penalty, upon at least sixty (60) days
prior written notice to the Trust or such Fund. This Agreement shall
automatically terminate in the event of its assignment.
(d) During such period as the Principal Underwriter receives
compensation pursuant to the Distribution and Service Plans, and this Agreement
constitutes a Distribution and Service Plan related agreement, (i) any material
amendment to this Agreement requires the approval of a majority of the
Independent Board Members cast in person at a meeting called for the purpose of
voting on such approval, (ii) any amendment that materially increases the amount
to be spent for distribution services requires the additional approval of the
majority of the Trust's outstanding
8
voting securities of each affected Fund and (iii) the selection and nomination
of those Trustees who are not "interested persons" of the Trust shall be
committed to the discretion of the Trustees of the Trust who are not such
"interested persons" of the Trust.
9. Notice. Any notice or other communication authorized or required by this
Agreement to be given to either party shall be deemed sufficient upon receipt in
writing at the other party's principal offices.
10. Limitation of Liability. The Principal Underwriter is expressly put on
notice of, and hereby acknowledges and agrees to, the limitation of shareholder
liability as set forth in the Declaration of Trust of the Trust and agrees that
the obligations assumed by the Trust under this contract shall be limited in all
cases to the Trust and the Trust property. The Principal Underwriter shall not
seek satisfaction of any such obligation from the shareholders or any
shareholder of the Trust, nor shall the Principal Underwriter seek satisfaction
of any such obligation from the Trustees or any individual Trustee of the Trust.
The Principal Underwriter understands that the rights and obligations of each
series of shares of the Trust under the Declaration of Trust are separate and
distinct from those of any and all other series.
11. Governing Law. This Agreement shall be construed in accordance with the laws
of the State of New York, without giving effect to the conflicts of laws
provisions thereof, and in accordance with the 1940 Act. To the extent that the
applicable laws of the State of New York conflict with the applicable provisions
of the 1940 Act, the latter shall control.
12. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
13. Severability. If any provisions of this Agreement shall be held or made
invalid, in whole or in part, then the other provisions of this Agreement shall
remain in force. Invalid provisions shall, in accordance with this Agreement's
intent and purpose, be amended, to the extent legally possible, by valid
provisions in order to effectuate the intended results of the invalid
provisions.
14. Services Not Exclusive. The services furnished by the Principal Underwriter
hereunder are not to be deemed exclusive and the Principal Underwriter shall be
free to furnish similar services to others 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 the Principal
Underwriter, who may also be a Board member, officer or employee of the Trust,
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.
15. Segregation of Fees and Expenses. Amounts paid by each Fund to the Principal
Underwriter under its Distribution and Service Plan either for distribution
related services or shareholder services shall not be used to pay for the
distribution of Shares of, or shareholder servicing in respect of, any other
Fund. However, fees under the Distribution and Service Plan attributable to the
Trust as a whole shall be allocated to each Fund according to the method adopted
by the Board. Fees attributable to the Trust as a whole shall include any
amounts payable under the Distribution and Service Plans to the Principal
Underwriter for its services
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rendered hereunder. The Principal Underwriter's allocation of such Distribution
and Service Plan fees shall be subject to review by the Board.
16. Amendment. No provision of this Agreement may be changed, waived, discharged
or terminated except by an instrument in writing signed by the party against
which an enforcement of the change, waiver, discharge or termination is sought.
17. Miscellaneous. The captions in this Agreement 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. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective 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, subject to such exemption
as may be granted by the Securities and Exchange Commission by any rule,
regulation or order. Where the effect of a requirement of the 1940 Act reflected
in any provision of this Contract is relaxed by a rule, regulation or order of
the Securities and Exchange Commission, whether of special or general
application, such provision shall be deemed to incorporate the effect of such
rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the date first set forth
above.
FRESCO'sm' INDEX SHARES FUNDS
Attest:
By: /s/ Xxxxx X. Xxxxxxxxxx
By: /s/ Xxxxxxx Xx Xxxxxxxx -------------------
----------------------- Name: Xxxxx X. Xxxxxxxxxx
Name: Xxxxxxx Xx Xxxxxxxx Title: Secretary
Title: Assistant Secretary
UBS GLOBAL ASSET MANAGEMENT (US) INC.
Attest:
By: /s/ Xxx X. Doberman
By: /s/ Xxxxxxx Xx Xxxxxxxx ---------------
-------------------- Name: Xxx X. Doberman
Name: Xxxxxxx Xx Xxxxxxxx Title: Managing Director,
Title: Director, General Counsel
Assistant General Counsel
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SCHEDULE I
FUND Symbol
---- ------
Fresco'sm' Dow Xxxxx STOXX 50'sm' Fund FEU
Fresco'sm' Dow Xxxxx Euro STOXX 50'sm' Fund FEZ
EXHIBIT A
FORM OF PARTICIPANT AGREEMENT
