Exhibit 6(d)
PAINEWEBBER AMERICA FUND
DISTRIBUTION CONTRACT
CLASS Y SHARES
CONTRACT made as of July 1, 1991 and amended November 10, 0000,
xxxxxxx XXXXXXXXXXX XXXXXXX FUND, a Massachusetts business trust ("Fund"),
and XXXXXXXX XXXXXXXX ASSET MANAGEMENT INC., a Delaware corporation
("Xxxxxxxx Xxxxxxxx").
WHEREAS the Fund is registered under the Investment Company Act
of l940, as amended ("l940 Act"), as an open-end management investment
company and currently offers for public sale one distinct series of shares
of beneficial interest ("Series"), which corresponds to a distinct
portfolio and has been designated as the PaineWebber Growth and Income
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 Y shares ("Class Y Shares") (previously known as Class C
shares); and
WHEREAS the Fund desires to retain Xxxxxxxx Xxxxxxxx as principal
distributor in connection with the offering and sale of the Class Y Shares
of the above-referenced Series and of such other Series as may hereafter
be designated by the Board and have Class Y Shares established; and
WHEREAS Xxxxxxxx Xxxxxxxx is willing to act as principal
distributor of the Class Y 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 Xxxxxxxx Xxxxxxxx
as its exclusive agent to be the principal distributor to sell and to
arrange for the sale of the Class Y Shares on the terms and for the period
set forth in this Contract. Xxxxxxxx Xxxxxxxx hereby accepts such
appointment and agrees to act hereunder. It is understood, however, that
this appointment does not preclude sales of the Class Y Shares directly
through the Fund's transfer agent in the manner set forth in the Registra-
tion 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 Xxxxxxxx Xxxxxxxx.
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(a) Xxxxxxxx Xxxxxxxx agrees to sell Class Y 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 the Class Y Shares by a Series, Xxxxxxxx Xxxxxxxx
will hold itself available to receive purchase orders, satisfactory to
Xxxxxxxx Xxxxxxxx, for Class Y 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) Xxxxxxxx Xxxxxxxx in its discretion may enter
into agreements to sell Class Y Shares to such registered and qualified
retail dealers, including but not limited to PaineWebber Incorporated
("PaineWebber"), as it may select. In making agreements with such dealers,
Xxxxxxxx Xxxxxxxx shall act only as principal and not as agent for the
Fund.
(d) The offering price of the Class Y Shares of each
Series shall be the net asset value per Share as next determined by the
Fund following receipt of an order at Xxxxxxxx Xxxxxxxx' principal office.
The Fund shall promptly furnish Xxxxxxxx Xxxxxxxx with a statement of each
computation of net asset value.
(e) Xxxxxxxx Xxxxxxxx shall not be obligated to sell
any certain number of Class Y Shares.
(f) To facilitate redemption of Class Y Shares by
shareholders directly or through dealers, Xxxxxxxx Xxxxxxxx is authorized
but not required on behalf of the Fund to repurchase Class Y 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.
(g) Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx shall not sell or knowingly
provide such list or lists to any unaffiliated person.
3. Authorization to Enter into Exclusive Dealer Contracts
and to Delegate Duties as Distributor. With respect to the Class Y Shares
of any or all Series, Xxxxxxxx Xxxxxxxx may enter into an exclusive dealer
agreement with PaineWebber or any other registered and qualified dealer
with respect to sales of the Class Y Shares. In a separate contract or as
part of any such exclusive dealer agreement, Xxxxxxxx Xxxxxxxx also may
delegate to PaineWebber or another registered and qualified dealer ("sub-
distributor") any or all of its duties specified in this Contract,
provided that such separate contract or exclusive dealer agreement imposes
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on the sub-distributor bound thereby all applicable duties and conditions
to which Xxxxxxxx Xxxxxxxx is subject under this Contract, and further
provided that such separate contract or exclusive dealer agreement meets
all requirements of the 1940 Act and rules thereunder.
4. Services Not Exclusive. The services furnished by
Xxxxxxxx Xxxxxxxx hereunder are not to be deemed exclusive and Xxxxxxxx
Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx, who may also be a trustee, 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.
5. Compensation and Reimbursement of Distribution Expenses.
The Fund shall have no obligation to compensate or reimburse Xxxxxxxx
Xxxxxxxx for any services performed by it hereunder.
6. Duties of the Fund.
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(a) The Fund reserves the right at any time to
withdraw offering Class Y Shares of any or all Series by written notice to
Xxxxxxxx Xxxxxxxx at its principal office.
(b) The Fund shall determine in its sole discretion
whether certificates shall be issued with respect to the Class Y Shares.
If the Fund has determined that certificates shall be issued, the Fund
will not cause certificates representing Class Y Shares to be issued
unless so requested by shareholders. If such request is transmitted by
Xxxxxxxx Xxxxxxxx, the Fund will cause certificates evidencing Class Y
Shares to be issued in such names and denominations as Xxxxxxxx Xxxxxxxx
shall from time to time direct.
(c) The Fund shall keep Xxxxxxxx Xxxxxxxx fully
informed of its affairs and shall make available to Xxxxxxxx Xxxxxxxx
copies of all information, financial statements, and
other papers which Xxxxxxxx Xxxxxxxx may reasonably request for use in
connection with the distribution of Class Y 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 Xxxxxxxx
Xxxxxxxx may request, and the Fund shall cooperate fully in the efforts of
Xxxxxxxx Xxxxxxxx to sell and arrange for the sale of the Class Y Shares
of the Series and in the performance of Xxxxxxxx Xxxxxxxx under this
Contract.
(d) The Fund shall take, from time to time, all
necessary action, including payment of the related filing fee, as may be
necessary to register the Class Y Shares under the 1933 Act to the end
that there will be available for sale such number of Class Y Shares as
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Xxxxxxxx Xxxxxxxx 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 in the Registration Statement, nor any omission of a material fact
which omission would make the statements therein misleading.
(e) The Fund shall use its best efforts to qualify
and maintain the qualification of an appropriate number of Class Y Shares
of each Series for sale under the securities laws of such states or other
jurisdictions as Xxxxxxxx Xxxxxxxx and the Fund may approve, and, if
necessary or appropriate in connection therewith, to qualify and maintain
the qualification of the Fund as a broker or dealer in such jurisdictions;
provided that the Fund shall not be required to amend its Declaration of
Fund 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
Class Y 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 Class
Y Shares. Xxxxxxxx Xxxxxxxx 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 Class Y Shares with the Securities and
Exchange Commission and 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 Class Y Shares for sale and of the Fund as
a broker or dealer under the securities laws of such jurisdictions as
shall be selected by the Fund and Xxxxxxxx Xxxxxxxx pursuant to Paragraph
6(e) hereof, and the costs and expenses payable to each such jurisdiction
for continuing qualification therein.
8. Expenses of Xxxxxxxx Xxxxxxxx. Xxxxxxxx Xxxxxxxx shall
bear all costs and expenses of (i) preparing, printing and distributing
any materials not prepared by the Fund and other materials used by
Xxxxxxxx Xxxxxxxx in connection with the sale of Class Y 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 Xxxxxxxx
Xxxxxxxx in connection with such offering; (iii) the expenses of
registration or qualification of Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx
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Xxxxxxxx' employees and others for selling Class Y Shares, and all
expenses of Xxxxxxxx Xxxxxxxx, its employees and others who engage in or
support the sale of Class Y Shares as may be incurred in connection with
their sales efforts.
9. Indemnification.
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(a) The Fund agrees to indemnify, defend and hold
Xxxxxxxx Xxxxxxxx, its officers and directors, and any person who controls
Xxxxxxxx Xxxxxxxx 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 there-
with) which Xxxxxxxx Xxxxxxxx, 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 statements
therein not misleading, except insofar as such claims, demands, liabili-
ties 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 Xxxxxxxx
Xxxxxxxx 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 trustee 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
Xxxxxxxx Xxxxxxxx against any liability to the Fund or to the shareholders
of any Series to which Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx
Xxxxxxxx under this indemnity agreement with respect to any claim made
against Xxxxxxxx Xxxxxxxx or any person indemnified unless Xxxxxxxx
Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx or such other person (or after
Xxxxxxxx Xxxxxxxx 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
Xxxxxxxx Xxxxxxxx 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
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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 Xxxxxxxx Xxxxxxxx promptly of the
commencement of any litigation or proceedings against it or any of its
officers or trustees in connection with the issuance or sale of any of its
Class Y Shares.
(b) Xxxxxxxx Xxxxxxxx agrees to indemnify, defend,
and hold the Fund, its officers and trustees, 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 trustees 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 in writing by Xxxxxxxx
Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx and any retail dealer, or arising out
of any supplemental sales literature or advertising used by Xxxxxxxx
Xxxxxxxx in connection with its duties under this Contract. Xxxxxxxx
Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx elects to assume the defense,
the defense shall be conducted by counsel chosen by Xxxxxxxx Xxxxxxxx and
satisfactory to the indemnified defendants whose approval shall not be
unreasonably withheld. In the event that Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx 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. Limitation of Liability of the Trustees and Shareholders
of the Fund. The trustees of the Fund and the shareholders of any Series
shall not be liable for any obligations of the Fund or any Series under
this Contract, and Xxxxxxxx Xxxxxxxx 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 trustees or shareholders.
11. Services Provided to the Fund by Employees of Xxxxxxxx
Xxxxxxxx. Any person, even though also an officer, director, employee or
agent of Xxxxxxxx Xxxxxxxx, who may be or become an officer, trustee,
employee or agent of the Fund, shall be deemed, when rendering services to
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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 Xxxxxxxx
Xxxxxxxx even though paid by Xxxxxxxx Xxxxxxxx.
12. Duration and Termination.
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(a) This Contract shall become effective upon the date
hereabove written, 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 have
no direct or indirect financial interest in this Contract 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
Contract shall continue in effect for one year 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 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 out-
standing voting securities of the Class Y Shares of such Series.
(c) Notwithstanding the foregoing, with respect to any
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 Trustees or by vote of a majority of the outstanding voting
securities of the Class Y Shares of such Series on sixty days' written
notice to Xxxxxxxx Xxxxxxxx or by Xxxxxxxx Xxxxxxxx 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 any
given Series shall in no way affect the continued validity of this
Contract or the performance thereunder with respect to any other Series.
13. 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.
14. Governing Law. This Contract shall be construed in accordance
with the laws of the State of Delaware and the 1940 Act, provided,
however, that Section 10 above will be construed in accordance with the
laws of the Commonwealth of Massachusetts. To the extent that the
applicable laws of the State of Delaware or the Commonwealth of
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Massachusetts conflict with the applicable provisions of the l940 Act, the
latter shall control.
15. 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.
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. As used in this Contract, the terms "majority of the out-
standing voting securities," "interested person" and "assignment" shall
have the same meaning as such terms have in the l940 Act.
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.
ATTEST: PAINEWEBBER AMERICA FUND
By:
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ATTEST: XXXXXXXX XXXXXXXX ASSET MANAGEMENT INC.
By:
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