Exhibit No. 5(b)
DEALER AGREEMENT
XXXXXXX MASTER SERIES, INC.
AGREEMENT made as of May 9, 2001, between Xxxxxxx Advisors, Inc.
("Xxxxxxx Advisors"), a Delaware corporation, and UBS PaineWebber Inc. ("UBS
PaineWebber"), a Delaware corporation.
WHEREAS Xxxxxxx Master Series, Inc. ("Fund") is a Maryland corporation
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 one distinct series of shares of
common stock ("Series"), which corresponds to a distinct portfolio which has
been designated as Xxxxxxx Money Market Fund and for which the Fund's board of
directors ("Board") has established shares of common stock as Class A shares,
Class B shares and Class C 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 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 one or more classes of Class A shares, Class B shares,
Class C shares and/or Class Y shares (referred to collectively as "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 0000 Xxx.
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
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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
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.
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(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.
(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 become 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
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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.
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
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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, 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 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
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 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.
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(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 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 Agreement 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.
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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:
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Name: Name:
Title: Title:
UBS PAINEWEBBER INC. UBS PAINEWEBBER INC.
By: By:
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Name: Name:
Title: Title:
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SCHEDULE A
All fifty (50) states
District of Columbia
Puerto Rico
Virgin Islands
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