Exhibit No. 5(f)
EXCLUSIVE DEALER AGREEMENT
CLASS B SHARES OF PAINEWEBBER AMERICA FUND
AGREEMENT made as of July 7, 1993, between Xxxxxxxx Xxxxxxxx Asset
Management Inc. ("Xxxxxxxx Xxxxxxxx"), a Delaware corporation, and PaineWebber
Incorporated ("PaineWebber"), a Delaware corporation.
WHEREAS PaineWebber America Fund ("Fund") is a Massachusetts business
trust registered under the Investment Company Act of 1940, as amended ("1940
Act"), as an open-end management investment company; and
WHEREAS the Fund currently has one distinct series of shares of
beneficial interest ("Series"), which corresponds to a distinct portfolio and
has been designated as the PaineWebber Dividend Growth Fund; and
WHEREAS the Fund's board of trustees ("Board") has established an
unlimited number of shares of beneficial interest of the above-referenced Series
as Class B shares ("Class B Shares") and has adopted a Plan of Distribution
pursuant to Rule 00x-0 xxxxx xxx 0000 Xxx ("Xxxx") with respect to the Class B
Shares of the above-referenced Series and of such other Series as may hereafter
be designated by the Board and have Class B Shares established; and
WHEREAS Xxxxxxxx Xxxxxxxx has entered into a Distribution Contract with
the Fund ("Distribution Contract") pursuant to which Xxxxxxxx Xxxxxxxx serves as
principal distributor in connection with the offering and sale of the Class B
Shares of each such Series; and
WHEREAS Xxxxxxxx Xxxxxxxx desires to retain PaineWebber as its
exclusive agent in connection with the offering and sale of the Class B Shares
of each Series and to delegate to PaineWebber performance of certain of the
services which Xxxxxxxx Xxxxxxxx provides to the Fund under the Distribution
Contract; and
WHEREAS PaineWebber is willing to act as Xxxxxxxx Xxxxxxxx' exclusive
agent in connection with the offering and sale of such Class B 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, Xxxxxxxx Xxxxxxxx and PaineWebber agree as follows:
1. Appointment. Xxxxxxxx Xxxxxxxx hereby appoints PaineWebber as its
exclusive agent to sell and to arrange for the sale of the Class B Shares on the
terms and for the period set forth in this Agreement. Xxxxxxxx Xxxxxxxx also
appoints PaineWebber as its agent for the performance of certain other services
set forth herein which Xxxxxxxx Xxxxxxxx provides to the Fund under the
Distribution Contract. PaineWebber hereby accepts such appointments and agrees
to act hereunder. It is understood, however, that these appointments do not
preclude sales of Class B 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 PaineWebber.
(a) PaineWebber agrees to sell the Class B Shares on a best
efforts basis from time to time during the term of this Agreement as agent for
Xxxxxxxx Xxxxxxxx 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 Class B Shares by a Series to the public, PaineWebber will
hold itself available to receive orders, satisfactory to PaineWebber and
Xxxxxxxx Xxxxxxxx, for the purchase of Class B Shares and will accept such
orders on behalf of Xxxxxxxx Xxxxxxxx and the Fund as of the time of receipt of
such orders and will promptly transmit such orders as are accepted to the Fund's
transfer agent. Purchase orders shall be deemed effective at the time and in the
manner set forth in the Registration Statement.
(c) PaineWebber in its discretion may sell Class B 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 Xxxxxxxx Xxxxxxxx. In making agreements with such dealers,
PaineWebber shall act only as principal and not as agent for Xxxxxxxx Xxxxxxxx
or the Fund.
(d) The offering price of the Class B Shares of each Series
shall be the net asset value per Share as next determined by the Fund following
receipt of an order at PaineWebber's principal office. Xxxxxxxx Xxxxxxxx shall
promptly furnish or arrange for the furnishing to PaineWebber of a statement of
each computation of net asset value.
(e) PaineWebber shall not be obligated to sell any certain
number of Class B Shares.
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(f) To facilitate redemption of Class B Shares by shareholders
directly or through dealers, PaineWebber is authorized but not required on
behalf of Xxxxxxxx Xxxxxxxx and the Fund to repurchase Class B 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) Painewebber shall provide ongoing shareholder services,
which include responding to shareholder inquiries, providing shareholders with
information on their investments in the Class B Shares and any other services
now or hereafter deemed to be appropriate subjects for the payments of "service
fees" under Section 26(d) of the National Association of Securities Dealers,
Inc. ("NASD") Rules of Fair Practice (collectively, "service activities").
"Service activities" do not include the transfer agency-related and other
services for which PaineWebber receives compensation under the Service Contract
between PaineWebber and the Fund.
(h) PaineWebber represents and warrants that: (i) it is a
member in good standing of the NASD and agrees to abide by the Rules of Fair
Practice of the NASD; (ii) it is registered as a broker-dealer with the
Securities and Exchange Commission; (iii) it will maintain any filings and
licenses required by federal and state laws to conduct the business contemplated
under this Agreement; and (iv) it will comply with all federal and state laws
and regulations applicable to the offer and sale of the Class B Shares.
(i) PaineWebber shall not incur any debts or obligations on
behalf of Xxxxxxxx Xxxxxxxx or the Fund. PaineWebber shall bear all costs that
it incurs in selling the Class B Shares and in complying with the terms and
conditions of this Agreement as more specifically set forth in paragraph 8.
(j) PaineWebber shall not permit any employee or agent to
offer or sell Class B Shares to the public unless such person is duly licensed
under applicable federal and state laws and regulations.
(k) PaineWebber shall not (i) furnish any information or make
any representations concerning the Class B Shares other than those contained in
the Registration Statement or in sales literature or advertising that has been
prepared or approved by Xxxxxxxx Xxxxxxxx as provided in paragraph 6 or (ii)
offer or sell the Class B Shares in jurisdictions in which they have not been
approved for offer and sale.
3. Services Not Exclusive. The services furnished by PaineWebber
hereunder are not to be deemed exclusive and PaineWebber shall be free to
furnish similar services to others so long as its services under this Agreement
are not impaired thereby. Nothing in this Agreement shall limit or restrict the
right of any director, officer or employee of PaineWebber who may also be a
director, trustee, officer or employee of Xxxxxxxx Xxxxxxxx or the Fund, to
engage in any
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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 B Shares, Xxxxxxxx Xxxxxxxx shall pay to
PaineWebber service fees with respect to Class B Shares maintained in
shareholder accounts serviced by PaineWebber employees, correspondent firms and
other dealers in such amounts as Xxxxxxxx Xxxxxxxx and PaineWebber may from time
to time agree upon.
(b) As compensation for its activities under this Agreement
with respect to the distribution of the Class B Shares, Xxxxxxxx Xxxxxxxx shall
pay to PaineWebber such commissions for sales of the Class D shares by
PaineWebber employees, correspondent firms and other dealers and such other
compensation as Xxxxxxxx Xxxxxxxx and PaineWebber may from time to time agree
upon.
(c) Xxxxxxxx Xxxxxxxx' obligation to pay compensation to
PaineWebber as agreed upon pursuant to this paragraph 4 is not contingent upon
receipt by Xxxxxxxx Xxxxxxxx of any compensation from the Fund or Series.
Xxxxxxxx Xxxxxxxx shall advise the Board of any agreements or revised agreements
as to compensation to be paid by Xxxxxxxx Xxxxxxxx to PaineWebber at their first
regular meeting held after such agreement but shall not be required to obtain
prior approval for such agreements from the Board.
(d) 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 PaineWebber may
from time to time determine.
5. Duties of Xxxxxxxx Xxxxxxxx.
(a) It is understood that the Fund reserves the right at any
time to withdraw all offerings of Class B Shares of any or all Series by written
notice to Xxxxxxxx Xxxxxxxx.
(b) Xxxxxxxx Xxxxxxxx shall keep PaineWebber fully informed of
the Fund's affairs and shall make available to PaineWebber copies of all
information, financial statements and other papers which PaineWebber may
reasonably request for use in connection with the distribution of Class B
Shares, including, without limitation, certified copies of any financial
statements prepared for the Fund by its independent public accountant and such
reasonable number of copies of the most current prospectus, statement of
additional information, and annual and interim reports of any Series as
PaineWebber may request, and Xxxxxxxx Xxxxxxxx shall cooperate fully in the
efforts of PaineWebber to sell and arrange for the sale of the Class B Shares
and in the performance of PaineWebber under this Agreement.
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(c) Xxxxxxxx Xxxxxxxx shall comply with all state and federal
laws and regulations applicable to a distributor of the Class B Shares.
6. Advertising. Xxxxxxxx Xxxxxxxx agrees to make available such sales
and advertising materials relating to the Class B Shares as Xxxxxxxx Xxxxxxxx in
its discretion determines appropriate. PaineWebber agrees to submit all sales
and advertising materials developed by it relating to the Class B Shares to
Xxxxxxxx Xxxxxxxx for approval. PaineWebber agrees not to publish or distribute
such materials to the public without first receiving such approval in writing.
Xxxxxxxx Xxxxxxxx shall assist PaineWebber in obtaining any regulatory approvals
of such materials that may be required of or desired by PaineWebber.
7. Records. PaineWebber agrees to maintain all records required by
applicable state and federal laws and regulations relating to the offer and sale
of the Class B Shares. Xxxxxxxx Xxxxxxxx and its representatives shall have
access to such records during normal business hours for review or copying.
8. Expenses of PaineWebber. PaineWebber shall bear all costs and
expenses of (i) preparing, printing, and distributing any materials not prepared
by the Fund or Xxxxxxxx Xxxxxxxx and other materials used by PaineWebber in
connection with its offering of Class B Shares for sale to the public; (ii) any
expenses of advertising incurred by PaineWebber in connection with such
offering; (iii) the expenses of registration or qualification of PaineWebber as
a dealer or broker under federal or state laws and the expenses of continuing
such registration or qualification; and (iv) all compensation paid to
PaineWebber's Investment Executives or other employees and others for selling
Class B Shares, and all expenses of PaineWebber, its Investment Executives and
employees and others who engage in or support the sale of Class B Shares as may
be incurred in connection with their sales efforts. PaineWebber shall bear such
additional costs and expenses as it and Xxxxxxxx Xxxxxxxx may agree upon, such
agreement to be evidenced in a writing signed by both parties. Xxxxxxxx Xxxxxxxx
shall advise the Board of any such agreement as to additional costs and expenses
borne by PaineWebber at their first regular meeting held after such agreement
but shall not be required to obtain prior approval for such agreements from the
Board.
9. Indemnification.
(a) Xxxxxxxx Xxxxxxxx agrees to indemnify, defend, and hold
PaineWebber, its officers and directors, and any person who controls PaineWebber
within the meaning of Section 15 of the 1933 Act, free and harmless from and
against any and all claims, demands, liabilities, and expenses (including the
cost of investigating or defending such claims, demands, or liabilities and any
counsel fees incurred in connection therewith) which PaineWebber, its officers,
directors, or any such controlling person may incur under the 1933 Act, under
common law or otherwise, arising out of or based upon any alleged untrue
statement of a material fact contained in the Registration Statement; arising
out of or based upon any alleged omission to state a material fact required to
be stated in the Registration Statement thereof or necessary to make the
statements in the Registration Statement thereof not misleading; or arising out
of any
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sales or advertising materials with respect to the Class B Shares provided by
Xxxxxxxx Xxxxxxxx to PaineWebber. However, this indemnity agreement shall not
apply to any claims, demands, liabilities, or expenses that arise out of or are
based upon any such untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information furnished in
writing by PaineWebber to Xxxxxxxx Xxxxxxxx or the Fund for use in the
Registration Statement or in any sales or advertising material; and further
provided, that in no event shall anything contained herein be so construed as to
protect PaineWebber against any liability to Xxxxxxxx Xxxxxxxx or the Fund or to
the shareholders of any Series to which 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) PaineWebber agrees to indemnify, defend, and hold Xxxxxxxx
Xxxxxxxx and its officers and directors, the Fund, its officers and trustees,
and any person who controls Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx or its officers or
directors or the Fund, its officers or trustees, or any such controlling person
may incur under the 1933 Act, under common law or otherwise arising out of or
based upon any alleged untrue statement of a material fact contained in
information furnished in writing by PaineWebber to Xxxxxxxx Xxxxxxxx or the Fund
for use in the Registration Statement; arising out of or based upon any alleged
omission to state a material fact in connection with such information required
to be stated in the Registration Statement or necessary to make such information
not misleading; or arising out of any agreement between PaineWebber and a
correspondent firm or any other retail dealer; or arising out of any sales or
advertising material used by PaineWebber in connection with its duties under
this Agreement.
10. Duration and Termination.
(a) This Agreement shall become effective upon the date written above,
provided that, with respect to any Series, this Contract shall not take effect
unless such action has first been approved by vote of a majority of the Board
and by vote of a majority of those trustees of the Fund who are not interested
persons of the Fund and who have no direct or indirect financial interest in the
operation of the Plan or in any agreements related thereto (all such trustees
collectively being referred to herein as the "Independent Trustees"), cast in
person at a meeting called for the purpose of voting on such action.
(b) Unless sooner terminated as provided herein, this
Agreement shall continue in effect for one year 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 Trustees, cast in person at a meeting called for the purpose of
voting on such approval, and (ii) by the Board or with respect to any given
Series by vote of a majority of the outstanding voting securities of the Class B
Shares of such Series.
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(c) Notwithstanding the foregoing, with respect to 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 Trustees or by vote of a majority of the
outstanding voting securities of the Class B Shares of such Series on 30 days'
written notice to Xxxxxxxx Xxxxxxxx and PaineWebber.
(d) Termination of this Agreement with respect to any given
Series shall in no way affect the continued validity of this Agreement or the
performance thereunder with respect to any other Series. This Agreement will
automatically terminate in the event of its assignment or in the event that the
Distribution Contract is terminated.
(e) Notwithstanding the foregoing, Xxxxxxxx Xxxxxxxx may
terminate this Agreement without penalty, such termination to be effective upon
the giving of written notice to PaineWebber in the event that the Plan is
terminated or is amended to reduce the compensation payable to Xxxxxxxx Xxxxxxxx
thereunder or in the event that the Registration Statement is amended so as to
reduce the amount of compensation payable to Xxxxxxxx Xxxxxxxx under the
Distribution Contract, provided that Xxxxxxxx Xxxxxxxx gives notice of
termination pursuant to this provision within 90 days of such amendment or
termination of the Plan 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 PaineWebber Name. PaineWebber hereby authorizes Xxxxxxxx
Xxxxxxxx to use the name "PaineWebber Incorporated" or any name derived
therefrom in any sales or advertising materials prepared and/or used by Xxxxxxxx
Xxxxxxxx in connection with its duties as distributor of the Class B 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 PaineWebber.
13. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of Delaware and the 1940 Act. To the extent that the
applicable laws of the State of Delaware conflict with the applicable provisions
of the 1940 Act, the latter shall control.
14. Miscellaneous. The captions in this 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
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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.
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.
XXXXXXXX XXXXXXXX ASSET
MANAGEMENT INC.
Attest: /s/ Xxxxx Xxx Xxxxx By: /s/ Xxxxxx X. X'Xxxxxxx
-------------------- -----------------------
Xxxxxx X. X'Xxxxxxx
First Vice President
PAINEWEBBER INCORPORATED
Attest: /s/ Xxxxx Xxx Xxxxx By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Corporate Vice President
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