Exhibit No. 5(b)
DEALER AGREEMENT
PAINEWEBBER PACE SELECT ADVISORS TRUST
AGREEMENT made as of _________, 2001, between Xxxxxxx Advisors,
Inc. ("Xxxxxxx Advisors"), a Delaware corporation, and UBS PaineWebber Inc.
("UBS PaineWebber"), a Delaware corporation.
WHEREAS PaineWebber PACE Select Advisors Trust ("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 offers distinct series of shares of
beneficial interest ("Series"), which correspond to distinct portfolios and
for which the Fund's board of trustees ("Board") has established shares of
beneficial interest as Class A shares, Class B shares, Class C shares, Class
P shares and/or Class Y shares (referred to collectively as "Shares"); and
WHEREAS Xxxxxxx Advisors has entered into a Principal
Underwriting Contract with the Fund ("Underwriting Contract") pursuant to
which Xxxxxxx Advisors serves as principal underwriter 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 one or more
classes of Shares established and has adopted separate Plans of Distribution
pursuant to Rule 12b-1 under the 1940 Act for its Class A shares, Class B
shares and Class C shares (respectively, "Class A Plan," "Class B Plan" and
"Class C Plan") with respect to the Class A shares, Class B shares and Class
C shares of the above-referenced Series and of such other Series as may
hereafter be designated by the Board and have Class A shares, Class B shares
or Class C shares established; and
WHEREAS Xxxxxxx Advisors desires to retain UBS PaineWebber as its
agent in connection with the offering and sale of the Shares of each Series
and to delegate to UBS PaineWebber performance of certain of the services
which Xxxxxxx Advisors provides to the Fund under the Underwriting Contract;
and
WHEREAS UBS PaineWebber is willing to act as Xxxxxxx Advisors'
agent in connection with the offering and sale of such 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, Xxxxxxx Advisors and UBS PaineWebber agree as
follows:
1. APPOINTMENT. Xxxxxxx Advisors hereby appoints UBS PaineWebber
as its agent to sell and to arrange for the sale of the Shares on the terms
and for the period set forth in this Agreement. Xxxxxxx Advisors also
appoints UBS PaineWebber as its agent for the performance of certain other
services set forth herein, which Xxxxxxx Advisors provides to the Fund under
the Underwriting Contract. UBS PaineWebber hereby accepts such appointments
and agrees to act hereunder. It is understood, however, that these
appointments do not preclude Xxxxxxx Advisors from entering into agreements
with other registered and qualified retail dealers for the sale of Shares or
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 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 1940 Act.
2. SERVICES, DUTIES AND REPRESENTATIONS OF UBS PAINEWEBBER.
(a) UBS PaineWebber agrees to sell the Shares on a best efforts
basis from time to time during the term of this Agreement as agent for
Xxxxxxx Advisors 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 Shares by a Series to the public, UBS PaineWebber will hold
itself available to receive orders, satisfactory to UBS PaineWebber and
Xxxxxxx Advisors, for the purchase of Shares and will accept such orders on
behalf of Xxxxxxx Advisors 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) UBS PaineWebber in its discretion may sell 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 Xxxxxxx Advisors. In making agreements with such dealers, UBS
PaineWebber shall act only as principal and not as agent for Xxxxxxx Advisors
or the Fund.
(d) The offering price of the Shares shall be the net asset value
per share as next determined by the Fund following receipt of an order at UBS
PaineWebber's principal office, plus the applicable initial sales charge, if
any, as set forth in the Registration Statement. Xxxxxxx Advisors shall
promptly furnish or arrange for the furnishing to UBS PaineWebber from the
Fund of a statement of each computation of net asset value.
(e) UBS PaineWebber shall not be obligated to sell any certain
number of Shares.
(f) To facilitate redemption of Shares by shareholders directly
or through dealers, UBS PaineWebber is authorized but not required on behalf
of Xxxxxxx Advisors and the Fund to repurchase 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. Such price shall reflect the subtraction of the
applicable contingent deferred sales charge, if any, computed in accordance
with and in the manner set forth in the Registration Statement.
(g) UBS PaineWebber shall provide ongoing shareholder services,
which include responding to shareholder inquiries, providing shareholders
with information on their investments in the Shares and any other services
now or hereafter deemed to be appropriate activities for the payment of
"service fees" under Rule 2830 of the Conduct Rules of the National
Association of Securities Dealers, Inc. ("NASD") (collectively, "service
activities").
(h) UBS PaineWebber represents and warrants that: (i) it is a
member in good standing of the NASD and agrees to abide by the Conduct Rules
of the NASD; (ii) it is registered as a broker-dealer with the Securities and
Exchange Commission ("Commission"); (iii) it will maintain any filings and
licenses required by federal and state laws to conduct the business
2
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 Shares.
(i) UBS PaineWebber shall not incur any debts or obligations on
behalf of Xxxxxxx Advisors or the Fund. UBS PaineWebber shall bear all costs
that it incurs in selling the Shares and in complying with the terms and
conditions of this Agreement as more specifically set forth in paragraph 8.
(j) UBS PaineWebber shall not permit any employee or agent to
offer or sell Shares to the public unless such person is duly licensed under
applicable federal and state laws and regulations.
(k) UBS PaineWebber shall not (i) furnish any information or make
any representations concerning the Shares other than those contained in the
Registration Statement or in sales literature or advertising that has been
prepared or approved by Xxxxxxx Advisors as provided in paragraph 6 or (ii)
offer or sell the Shares in jurisdictions in which they have not been
approved for offer and sale.
3. SERVICES NOT EXCLUSIVE. The services furnished by UBS
PaineWebber hereunder are not to be deemed exclusive and UBS PaineWebber
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 UBS
PaineWebber who may also be a director, Board member, officer or employee of
Xxxxxxx Advisors 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.
(a) As compensation for its service activities under this
Agreement with respect to the Class A, B and C shares, Xxxxxxx Advisors shall
pay to UBS PaineWebber service fees with respect to Class A, B and C shares
maintained in shareholder accounts serviced by UBS PaineWebber employees,
correspondent firms and other dealers in such amounts as Xxxxxxx Advisors and
UBS PaineWebber may from time to time agree upon.
(b) As compensation for its activities under this Agreement with
respect to the distribution of Shares sold with an initial sales charge, UBS
PaineWebber shall retain that portion of the offering price constituting the
Discount to Selected Dealers ("Discount"), if any, set forth in the
Registration Statement. UBS PaineWebber is authorized to collect the gross
proceeds derived from the sale of such Shares; remit the net asset value
thereof to the Fund's Transfer Agent; remit to Xxxxxxx Advisors the
difference between the offering price of the Shares and the applicable
Discount; and retain said Discount. Whether the offering price of any Shares
includes an initial sales charge out of which UBS PaineWebber may retain a
Discount shall be determined in accordance with the Registration Statement.
(c) Also as compensation for its activities under this Agreement,
Xxxxxxx Advisors shall pay to UBS PaineWebber such commissions and other
compensation as Xxxxxxx Advisors and UBS PaineWebber may from time to time
agree upon.
3
(d) UBS 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 UBS
PaineWebber may from time to time determine.
(e) Xxxxxxx Advisors' obligation to pay compensation to UBS
PaineWebber as agreed upon pursuant to this paragraph 4 is not contingent
upon receipt by Xxxxxxx Advisors of any compensation from the Fund or Series.
Xxxxxxx Advisors shall advise the Board of any agreements or revised
agreements as to compensation to be paid by Xxxxxxx Advisors to UBS
PaineWebber but shall not be required to obtain prior approval for such
agreements from the Board.
5. DUTIES OF XXXXXXX ADVISORS.
(a) It is understood that the Fund reserves the right at any time
to withdraw all offerings of any class or classes of Shares of any or all
Series by written notice to Xxxxxxx Advisors.
(b) Xxxxxxx Advisors shall keep UBS PaineWebber fully informed of
the Fund's affairs and shall make available to UBS PaineWebber copies of all
information, financial statements and other papers which UBS PaineWebber may
reasonably request for use in connection with the distribution of 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 UBS
PaineWebber may request, and Xxxxxxx Advisors shall cooperate fully in the
efforts of UBS PaineWebber to sell and arrange for the sale of Shares and in
the performance of UBS PaineWebber under this Agreement.
(c) Xxxxxxx Advisors shall comply with all state and federal laws
and regulations applicable to an underwriter of the Shares.
(d) Xxxxxxx Advisors shall promptly notify UBS PaineWebber if the
Fund's Registration Statement ceases to be effective.
(e) Xxxxxxx Advisors represents and warrants that as of the date
hereof and throughout the term of this Agreement the Shares of the Fund are
qualified for sale under or are exempt from the requirements of the
respective securities laws of the states and jurisdictions listed on Schedule
A of this Agreement. Xxxxxxx Advisors shall promptly notify UBS PaineWebber
in the event Shares of the Fund cease to be qualified for sale under or cease
to qualify for an exemption from the requirements of the respective
securities laws of the states and jurisdictions listed on Schedule A.
6. ADVERTISING. Xxxxxxx Advisors agrees to make available such
sales and advertising materials relating to the Shares as Xxxxxxx Advisors in
its discretion determines appropriate. UBS PaineWebber agrees to submit all
sales and advertising materials developed by it relating to the Shares to
Xxxxxxx Advisors for approval. UBS PaineWebber agrees not to publish or
distribute such materials to the public without first receiving such approval
in writing. Xxxxxxx Advisors shall assist UBS PaineWebber in obtaining any
regulatory approvals of such materials that may be required of or desired by
UBS PaineWebber.
4
7. RECORDS. UBS PaineWebber agrees to maintain all records
required by applicable state and federal laws and regulations relating to the
offer and sale of the Shares. Xxxxxxx Advisors and its representatives shall
have access to such records during normal business hours for review or
copying.
8. EXPENSES OF UBS PAINEWEBBER. UBS PaineWebber shall bear all
costs and expenses of (i) preparing, printing, and distributing any materials
not prepared by the Fund or Xxxxxxx Advisors and other materials used by UBS
PaineWebber in connection with its offering of the Shares for sale to the
public; (ii) any expenses of advertising incurred by UBS PaineWebber in
connection with such offering; (iii) the expenses of registration or
qualification of UBS 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 UBS PaineWebber's Financial Advisors or other
employees and others for selling Shares, and all expenses of UBS PaineWebber,
its Financial Advisors and employees and others who engage in or support the
sale of Shares as may be incurred in connection with their sales efforts. UBS
PaineWebber shall bear such additional costs and expenses as it and Xxxxxxx
Advisors may agree upon in writing. Xxxxxxx Advisors shall advise the Board
of any such agreement as to additional costs and expenses borne by UBS
PaineWebber but shall not be required to obtain prior approval for such
agreements from the Board.
9. INDEMNIFICATION.
(a) Xxxxxxx Advisors agrees to indemnify, defend, and hold UBS
PaineWebber, its officers and directors, and any person who controls UBS
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 UBS 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 Shares provided
by Xxxxxxx Advisors to UBS 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 UBS PaineWebber to Xxxxxxx Advisors 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 UBS PaineWebber against any liability to
Xxxxxxx Advisors or the Fund or to the shareholders of any Series to which
UBS 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) UBS PaineWebber agrees to indemnify, defend, and hold
Xxxxxxx Advisors and its officers and directors, the Fund, its officers and
Board members, and any person who controls Xxxxxxx Advisors or the Fund
within the meaning of Section 15 of the 1933 Act,
5
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 Xxxxxxx Advisors or its officers or directors or the Fund,
its officers or Board members, or any such controlling person may incur under
the 1933 Act, under common law or otherwise arising out of or based upon any
alleged breach by UBS PaineWebber of its duties or obligations under this
Agreement.
10. DURATION AND TERMINATION.
(a) This Agreement shall become effective upon the date written
above, provided that, with respect to any class of Shares of a 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 Board
members who are not interested persons of the Fund and, for a class of Shares
for which a Plan of Distribution has been adopted, who also have no direct or
indirect financial interest in the operation of the Plan of Distribution 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 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 Series by vote of a majority of the outstanding voting
securities of that class of Shares of such Series.
(c) Notwithstanding the foregoing, with respect to a class of
Shares of 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 Board
Members or, with respect to a class of Shares of a Series, by vote of a
majority of the outstanding voting securities of that class of Shares on 30
days' written notice to Xxxxxxx Advisors and UBS PaineWebber.
(d) Termination of this Agreement with respect to a class of
Shares of any given Series shall in no way affect the continued validity of
this Agreement or the performance thereunder with respect to any other
classes of Shares of that Series or any classes of Shares of any other
Series. This Agreement will automatically terminate in the event of its
assignment or in the event that the Underwriting Contract is terminated.
(e) Notwithstanding the foregoing, Xxxxxxx Advisors may
terminate this Agreement with respect to a class of Shares of a Series
without penalty, such termination to be effective upon the giving of written
notice to UBS PaineWebber in the event that the Plan of Distribution relating
to that class of Shares is terminated or is amended to reduce the
compensation payable to Xxxxxxx Advisors
6
thereunder or in the event that the Registration Statement is amended so as
to reduce the amount of compensation payable to Xxxxxxx Advisors with respect
to that class of Shares under the Underwriting Contract, provided that
Xxxxxxx Advisors gives notice of termination pursuant to this provision
within 90 days of such amendment or termination of the Plan of Distribution
or amendment of the Registration Statement.
11. AMENDMENT OF THIS AGREEMENT. No provision of this
Agreement 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 UBS PAINEWEBBER NAME. UBS PaineWebber hereby
authorizes Xxxxxxx Advisors to use the name "UBS PaineWebber Incorporated" or
any name derived therefrom in any sales or advertising materials prepared
and/or used by Xxxxxxx Advisors in connection with its duties as underwriter
of the 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
UBS PaineWebber.
13. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of New York and 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. 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 any exemption or interpretation as may
be issued by the Commission by any rule, regulation or order or contained in
any no-action or interpretive positions taken by the Commission staff. Where
the effect of a requirement of the 1940 Act reflected in any provision of
this Contract is revised by a rule, regulation, order or interpretation of
the Commission or the Commission staff, whether of special or general
application, such provision shall be deemed to incorporate the effect of such
rule, regulation, order or interpretation.
14. 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. 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 successors.
7
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.
XXXXXXX ADVISORS, INC. XXXXXXX ADVISORS, INC.
By:___________________ By:___________________
Name: Name:
Title: Title:
UBS PAINEWEBBER INC. UBS PAINEWEBBER INC.
By:_________________ By: ________________
Name: Name:
Title: Title:
8
SCHEDULE A
All fifty (50) states
District of Columbia
Puerto Rico
Virgin Islands
9
