Exhibit No. 5(a)
PAINEWEBBER PACE SELECT ADVISORS TRUST
PRINCIPAL UNDERWRITING CONTRACT
CONTRACT made as of _________, 2001, between PAINEWEBBER PACE
SELECT ADVISORS TRUST, a Delaware business trust, ("Fund") and XXXXXXX
ADVISORS, INC., a Delaware corporation, ("Xxxxxxx Advisors").
WHEREAS the Fund is registered under the Investment Company Act
of 1940, as amended ("1940 Act"), as an open-end management investment
company and 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 the Fund desires to retain Xxxxxxx Advisors 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 Class A shares, Class
B shares, Class C shares, Class P shares and/or Class Y 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"); and
WHEREAS Xxxxxxx Advisors is willing to act as principal
underwriter of the Shares of each such Series on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is agreed between the parties hereto as
follows:
1. APPOINTMENT. The Fund hereby appoints Xxxxxxx Advisors as its
exclusive agent to be the principal underwriter to sell and to arrange for
the sale of the Shares on the terms and for the period set forth in this
Contract. Xxxxxxx Advisors xxxxxx accepts such appointment and agrees to act
hereunder. It is understood, however, that this appointment does not 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 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 1940 Act.
2. SERVICES AND DUTIES OF XXXXXXX ADVISORS.
(a) Xxxxxxx Advisors agrees to sell Shares on a best efforts
basis from time to time during the term of this Contract as agent for the
Fund and upon the terms described in the Registration Statement.
(b) Upon the later of the date of this Contract or the initial
offering of Shares to the public by a Series, Xxxxxxx Advisors will hold
itself available to receive purchase orders, satisfactory to Xxxxxxx
Advisors, for Shares of that Series and will accept such orders on behalf of
the Fund as of the time of receipt of such orders and 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) Xxxxxxx Advisors in its discretion may enter into
agreements to sell Shares to such registered and qualified retail dealers as
it may select. In making agreements with such dealers, Xxxxxxx Advisors shall
act only as principal and not as agent for 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 Xxxxxxx Advisors' principal office plus the applicable initial sales
charge, if any, computed as set forth in the Registration Statement. The Fund
shall promptly furnish Brinson Advisors with a statement of each computation
of net asset value.
(e) Xxxxxxx Advisors shall not be obligated to sell any
certain number of Shares.
(f) To facilitate redemption of Shares by shareholders
directly or through dealers, Xxxxxxx Advisors is authorized but not required
on behalf of the Fund to repurchase Shares presented to it by shareholders
and 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 contingent deferred sales charge, if any, computed in
accordance with and in the manner set forth in the Registration Statement.
(g) Xxxxxxx Advisors 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) Xxxxxxx Advisors shall have the right to use any
list of shareholders of the Fund or any other list of investors which it
obtains in connection with its provision of services under this Contract;
provided, however, that Xxxxxxx Advisors shall not sell or knowingly provide
such list or lists to any unaffiliated person.
3. AUTHORIZATION TO ENTER INTO DEALER AGREEMENTS AND TO DELEGATE
DUTIES AS PRINCIPAL UNDERWRITER. With respect to the Shares of any or all
Series, Xxxxxxx Advisors may enter into dealer agreements with any registered
and qualified dealer with respect to sales of Shares or the provision of
service activities. In a separate contract or as part of any such dealer
agreement, Xxxxxxx Advisors also may delegate to any registered and qualified
dealer any or all of its duties specified in this Contract, provided that
such separate contract or dealer agreement imposes on the counterparty bound
thereby all applicable duties and conditions to which Xxxxxxx Advisors is
subject under this Contract.
4. SERVICES NOT EXCLUSIVE. The services furnished by Xxxxxxx
Advisors hereunder are not to be deemed exclusive and Xxxxxxx Advisors 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 Xxxxxxx
Advisors, who may also be a Board member, officer or employee of 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.
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5. COMPENSATION.
(a) As compensation for its service activities under this
contract with respect to Class A, B and C shares, Xxxxxxx Advisors shall
receive from the Fund a service fee at the rate and under the terms and
conditions of the Class A Plan, Class B Plan and Class C Plan, respectively,
as amended from time to time, and subject to any further limitations on such
fee as the Board may impose.
(b) As compensation for its activities under this contract
with respect to the distribution of the Class B and C shares, Xxxxxxx
Advisors shall receive from the Fund a distribution fee at the rate and under
the terms and conditions of the Class B Plan and Class C Plan, respectively,
as amended from time to time, and subject to any further limitations on such
fee as the Board may impose.
(c) As compensation for its activities under this contract
with respect to the distribution of Shares, Xxxxxxx Advisors shall retain the
initial sales charge, if any, on purchases of Shares as set forth in the
Registration Statement. Xxxxxxx Advisors is authorized to collect the gross
proceeds derived from the sale of Shares, remit the net asset value thereof
to the Fund upon receipt of the proceeds and retain the initial sales charge,
if any.
(d) As compensation for its activities under this contract
with respect to the distribution of Shares, Xxxxxxx Advisors shall receive
all contingent deferred sales charges imposed on redemptions of Shares.
Whether and at what rate a contingent deferred sales charge will be imposed
with respect to a redemption shall be determined in accordance with, and in
the manner set forth in, the Registration Statement.
(e) Xxxxxxx Advisors may reallow any or all of the initial
sales charges, contingent deferred sales charges, distribution fees or
service fees which it is paid under this Contract to such dealers as Xxxxxxx
Advisors may from time to time determine.
6. DUTIES OF THE FUND.
(a) The Fund reserves the right at any time to withdraw
offering any class or classes of Shares of any or all Series by written
notice to Xxxxxxx Advisors at its principal office.
(b) The Fund shall keep Xxxxxxx Advisors fully informed of
its affairs and shall make available to Xxxxxxx Advisors copies of all
information, financial statements, and other documents which Xxxxxxx Advisors
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
Xxxxxxx Advisors may request, and the Fund shall cooperate fully in the
efforts of Xxxxxxx Advisors to sell and arrange for the sale of the Shares of
the Series and in the performance of Xxxxxxx Advisors under this Contract.
(c) The Fund shall take, from time to time, all necessary
action, including payment of the related filing fee, as may be necessary to
register its Shares under the 1933 Act to the end that there will be
available for sale such number of Shares as Xxxxxxx Advisors may be expected
to sell. The Fund agrees to file, from time to time, such amendments,
reports, and other documents as may be necessary in order that there will be
no untrue statement of a material fact
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in the Registration Statement, nor any omission of a material fact which
omission would make the statements therein misleading.
(d) The Fund shall use its best efforts to qualify and
maintain the qualification of an appropriate number of Shares of each Series
for sale under the securities laws of such states or other jurisdictions as
Xxxxxxx Advisors and the Fund may approve, provided that the Fund shall not
be required to amend its Trust Instrument or By-Laws to comply with the laws
of any jurisdiction, to maintain an office in any jurisdiction, to change the
terms of the offering of the Shares in any jurisdiction from the terms set
forth in its Registration Statement, to qualify as a foreign corporation in
any jurisdiction, or to consent to service of process in any jurisdiction
other than with respect to claims arising out of the offering of the Shares.
Xxxxxxx Advisors shall furnish such information and other material relating
to its affairs and activities as may be required by the Fund in connection
with such qualifications.
7. EXPENSES OF THE FUND. The Fund shall bear all costs and
expenses of registering the Shares with the Securities and Exchange
Commission ("Commission") and qualifying the Shares for offer and sale with
state and other regulatory bodies, and shall assume expenses related to
communications with shareholders of each Series, including (i) fees and
disbursements of its counsel and independent public accountant; (ii) the
preparation, filing and printing of registration statements and/or
prospectuses or statements of additional information required under the
federal securities laws; (iii) the preparation and mailing of annual and
interim reports, prospectuses, statements of additional information and proxy
materials to shareholders; and (iv) the qualifications of Shares for sale
under the securities laws of such jurisdictions as shall be selected by the
Fund and Xxxxxxx Advisors pursuant to Paragraph 6(d) hereof, and the costs
and expenses payable to each such jurisdiction for continuing qualification
therein.
8. EXPENSES OF XXXXXXX ADVISORS. Xxxxxxx Advisors shall bear all
costs and expenses of (i) preparing, printing and distributing any materials
not prepared by the Fund and other materials used by Xxxxxxx Advisors in
connection with the sale of Shares under this Contract, including the
additional cost of printing copies of prospectuses, statements of additional
information, and annual and interim shareholder reports other than copies
thereof required for distribution to existing shareholders or for filing with
any federal or state securities authorities; (ii) any expenses of advertising
incurred by Xxxxxxx Advisors in connection with such offering; (iii) the
expenses of registration or qualification of Xxxxxxx Advisors as a broker or
dealer under federal or state laws and the expenses of continuing such
registration or qualification; and (iv) all compensation paid to Xxxxxxx
Advisors' employees and others for selling Shares, and all expenses of
Xxxxxxx Advisors, its employees and others who engage in or support the sale
of Shares as may be incurred in connection with their sales efforts.
9. INDEMNIFICATION.
(a) The Fund agrees to indemnify, defend and hold Xxxxxxx
Advisors, its officers and directors, and any person who controls Xxxxxxx
Advisors 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
Xxxxxxx Advisors, its officers, directors or any such controlling person may
incur 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 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
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statements therein not misleading, except insofar as such claims, demands,
liabilities or expenses 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
Xxxxxxx Advisors to the Fund 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 Board member of the Fund or who controls the
Fund 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; and further provided, that in no event shall
anything contained herein be so construed as to protect Xxxxxxx Advisors
against any liability to the Fund or to the shareholders of any Series to
which Xxxxxxx Advisors 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
Contract. The Fund shall not be liable to Xxxxxxx Advisors under this
indemnity agreement with respect to any claim made against Xxxxxxx Advisors
or any person indemnified unless Xxxxxxx Advisors or other such person shall
have notified the Fund 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 Xxxxxxx Advisors or such
other person (or after Xxxxxxx Advisors or the person shall have received
notice of service on any designated agent). However, failure to notify the
Fund of any claim shall not relieve the Fund from any liability which it may
have to Xxxxxxx Advisors or any person against whom such action is brought
otherwise than on account of this indemnity agreement. The Fund 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 Fund elects to assume the defense
of any such claim, the defense shall be conducted by counsel chosen by the
Fund and satisfactory to indemnified defendants in the suit whose approval
shall not be unreasonably withheld. In the event that the Fund elects to
assume the defense of any suit and retain counsel, the indemnified defendants
shall bear the fees and expenses of any additional counsel retained by them.
If the Fund does not elect to assume the defense of a suit, it will reimburse
the indemnified defendants for the reasonable fees and expenses of any
counsel retained by the indemnified defendants. The Fund agrees to notify
Xxxxxxx Advisors promptly of the commencement of any litigation or
proceedings against it or any of its officers or Board members in connection
with the issuance or sale of any of its Shares.
(b) Xxxxxxx Advisors agrees to indemnify, defend, and hold the
Fund, its officers and Board members and any person who controls 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 the
Fund, its Board members or officers, or any such controlling person may incur
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 information
furnished by Xxxxxxx Advisors to 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 necessary to make such information not misleading,
or arising out of any agreement between Xxxxxxx Advisors and any retail
dealer, or arising out of any supplemental sales literature or advertising
used by Xxxxxxx Advisors in connection with its duties under this Contract.
Xxxxxxx Advisors 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 Xxxxxxx Advisors elects to assume the defense, the
defense shall be conducted by counsel chosen by Xxxxxxx Advisors and
satisfactory
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to the indemnified defendants whose approval shall not be unreasonably
withheld. In the event that Xxxxxxx Advisors 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 Xxxxxxx Advisors
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.
10. SERVICES PROVIDED TO THE FUND BY EMPLOYEES OF XXXXXXX
ADVISORS. Any person, even though also an officer, director, employee or
agent of Xxxxxxx Advisors, who may be or become an officer, Board member,
employee or agent of the Fund, shall be deemed, when rendering services to
the Fund or acting in any business of the Fund, to be rendering such services
to or acting solely for the Fund and not as an officer, director, employee or
agent or one under the control or direction of Xxxxxxx Advisors even though
paid by Xxxxxxx Advisors.
11. DURATION AND TERMINATION.
(a) This Contract 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, 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 Contract shall
continue in effect for two years 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 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 a Series, this Contract may 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 by vote of a majority of the outstanding voting
securities of that class of Shares of the Series on sixty days' written
notice to Xxxxxxx Advisors or by Xxxxxxx Advisors at any time, without the
payment of any penalty, on sixty days' written notice to the Fund or such
Series. This Contract will automatically terminate in the event of its
assignment.
(d) Termination of this Contract with respect to a class of Shares
of any given Series shall in no way affect the continued validity of this
Contract or the performance thereunder with respect to any other classes of
Shares of that Series or any classes of Shares of any other Series.
12. AMENDMENT OF THIS CONTRACT. No provision of this Contract may
be 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.
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13. NOTICE. Any notice required or permitted to be given by
either party to the other shall be deemed sufficient upon receipt in
writing at the other party's principal offices.
14. GOVERNING LAW. This Contract shall be construed in accordance
with the laws of the State of New York, without giving effect to the
conflicts of laws principles thereof, and in accordance with the 1940 Act,
provided however that Section 15 below will be construed in accordance with
the laws of the State of Delaware. To the extent that the applicable laws of
the State of New York or the State of Delaware conflict with the applicable
provisions of the 1940 Act, the latter shall control. 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, 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.
15. LIMITATION OF LIABILITY OF THE BOARD MEMBERS AND SHAREHOLDERS
OF THE FUND. The Board members and the shareholders of the Fund shall not be
liable for any obligations of the Fund or any Series under this Contract, and
Xxxxxxx Advisors agrees that, in asserting any rights or claims under this
Contract, it shall look only to the assets and property of the Fund or the
particular Series in settlement of such right or claims, and not to such
Board members or shareholders.
16. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Contract
to be executed by their officers designated as of the day and year first
above written.
PAINEWEBBER PACE SELECT PAINEWEBBER PACE SELECT
ADVISORS TRUST ADVISORS TRUST
By: By:
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Name: Name:
Title: Title:
XXXXXXX ADVISORS, INC. XXXXXXX ADVISORS, INC.
By: By:
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Name: Name:
Title: Title:
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