Exhibit No. 4(a)
INTERIM INVESTMENT MANAGEMENT AND
ADMINISTRATION CONTRACT
Contract made as of October 10, 2000, between PAINEWEBBER AMERICA FUND,
a Massachusetts business trust ("Trust"), and XXXXXXXX XXXXXXXX ASSET MANAGEMENT
INC. ("Xxxxxxxx Xxxxxxxx"), a Delaware corporation registered as an investment
adviser under the Investment Advisers Act of 1940, as amended ("Advisers Act"),
and as a broker-dealer under the Securities Exchange Act of 1934, as amended
("1934 Act");
WHEREAS the Trust is registered under the Investment Company Act of
1940, as amended ("1940 Act"), as an open-end management investment company, and
is authorized to offer for public sale distinct series of shares of beneficial
interest; and
WHEREAS the Trust desires and intends to have one or more investment
advisers ("Sub-Advisers") provide investment advisory and portfolio management
services with respect to the series of shares of beneficial interest of the
Trust designated as PaineWebber Growth and Income Fund ("Series"); and
WHEREAS the Trust desires to retain Xxxxxxxx Xxxxxxxx as investment
manager and administrator to furnish certain administrative and portfolio
management services to the Trust with respect to the Series, and Xxxxxxxx
Xxxxxxxx is willing to furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Trust hereby appoints Xxxxxxxx Xxxxxxxx as
investment manager and administrator of the Trust and the Series for the period
and on the terms set forth in this Contract. Xxxxxxxx Xxxxxxxx accepts such
appointment and agrees to render the services herein set forth, for the
compensation herein provided.
2. Duties as Investment Manager; Appointment of Sub-Advisers
(a) Subject to the oversight and direction of the Trust's Board of
Trustees ("Board"), Xxxxxxxx Xxxxxxxx will provide to the Trust investment
management evaluation services principally by performing initial reviews of
prospective Sub-Advisers for the Series and supervising and monitoring
performance of the Sub-Advisers thereafter. Xxxxxxxx Xxxxxxxx agrees to report
to the Trust the results of its evaluation, supervision and monitoring functions
and to keep certain books and records of the Trust in connection therewith.
Xxxxxxxx Xxxxxxxx further agrees to communicate performance expectations and
evaluations to the Sub-Advisers, and to recommend to the Trust whether
agreements with Sub-Advisers should be renewed, modified or terminated.
(b) Xxxxxxxx Xxxxxxxx is responsible for informing the Sub-Advisers of
the investment objective(s), policies and restrictions of the Series, for
informing or ascertaining that it is aware of other legal and regulatory
responsibilities applicable to the Sub-Adviser with respect to the Series, and
for monitoring the Sub-Advisers' discharge of their duties; but Xxxxxxxx
Xxxxxxxx is not responsible for the specific actions (or inactions) of a
Sub-Adviser in the performance of the duties assigned to it.
(c) With respect to each Sub-Adviser for the Series, Xxxxxxxx Xxxxxxxx
shall enter into an agreement ("Sub-Advisory Agreement") with the Sub-Adviser in
substantially the form previously approved by the Board.
(d) Xxxxxxxx Xxxxxxxx shall be responsible for the fees payable to and
shall pay the Sub-Adviser of the Series the fee as specified in the Sub-Advisory
Agreement relating thereto.
3. Duties as Administrator. Xxxxxxxx Xxxxxxxx will administer the
affairs of the Trust and Series subject to the oversight and direction of the
Board and the following understandings:
(a) Xxxxxxxx Xxxxxxxx will supervise all aspects of the operations of
the Trust and the Series, including oversight of transfer agency, custodial and
accounting services, except as hereinafter set forth; provided, however, that
nothing herein contained shall be deemed to relieve or deprive the Board of its
responsibility for and control of the conduct of the affairs of the Trust and
the Series.
(b) Xxxxxxxx Xxxxxxxx will provide the Trust and the Series with such
corporate, administrative and clerical personnel (including officers of the
Trust) and services as are reasonably deemed necessary or advisable by the
Board, including the maintenance of certain books and records of the Trust and
Series.
(c) Xxxxxxxx Xxxxxxxx will arrange, but not pay, for the periodic
preparation, updating, filing and dissemination (as applicable) of the Trust's
Registration Statement, proxy material, tax returns and required reports to
shareholders of the Series and the Securities and Exchange Commission and other
appropriate federal or state regulatory authorities.
(d) Xxxxxxxx Xxxxxxxx will provide the Trust and the Series with, or
obtain for it, adequate office space and all necessary office equipment and
services, including telephone service, heat, utilities, stationery supplies and
similar items.
(e) Xxxxxxxx Xxxxxxxx will provide the Board on a regular basis with
economic and investment analyses and reports and make available to the Board
upon request any economic, statistical and investment services normally
available to institutional or other customers of Xxxxxxxx Xxxxxxxx.
4. Further Duties. In all matters relating to the performance of this
Contract, Xxxxxxxx Xxxxxxxx will act in conformity with the Declaration of
Trust, By-Laws and the currently effective registration statement of the Trust
and any amendments or supplements thereto ("Registration Statement") and with
the instructions and directions of the Board and will comply with the
requirements of the 1940 Act, the Advisers Act, and the rules under each, and
all other applicable federal and state laws and regulations.
5. 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 Trust, to engage in any other business or
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to devote his or her time and attention in part to the management or other
aspects of any other business, whether of a similar nature or a dissimilar
nature.
6. Expenses.
(a) During the term of this Contract, the Series will bear all
expenses, not specifically assumed by Xxxxxxxx Xxxxxxxx, incurred in its
operations and the offering of its shares.
(b) Expenses borne by the Series will include but not be limited to the
following: (i) the cost (including brokerage commissions) of securities
purchased or sold by the Series and any losses incurred in connection therewith;
(ii) fees payable to and expenses incurred on behalf of the Series by Xxxxxxxx
Xxxxxxxx under this Contract; (iii) filing fees and expenses relating to the
registrations and qualification of the Series' shares and the Trust under
federal and/or state securities laws and maintaining such registration and
qualifications; (iv) fees and salaries payable to the Trust's Trustees and
officers who are not interested persons of the Trust or Xxxxxxxx Xxxxxxxx; (v)
all expenses incurred in connection with the Trustees' services, including
travel expenses; (vi) taxes (including any income or franchise taxes) and
governmental fees; (vii) costs of any liability, uncollectible items of deposit
and other insurance and fidelity bonds; (viii) any costs, expenses or losses
arising out of a liability of or claim for damages or other relief asserted
against the Trust or the Series for violation of any law; (ix) legal, accounting
and auditing expenses, including legal fees of special counsel for those
Trustees of the Trust who are not interested persons of the Trust; (x) charges
of custodians, transfer agents and other agents; (xi) costs of preparing share
certificates; (xii) expenses of setting in type and printing prospectuses and
supplements thereto, statements of additional information and supplements
thereto, reports and proxy materials for existing shareholders; (xiii) costs of
mailing prospectuses and supplements thereto, statements of additional
information and supplements thereto, reports and proxy materials to existing
shareholders; (xiv) any extraordinary expenses (including fees and disbursements
of counsel, costs of actions, suits or proceedings to which the Trust is a party
and the expenses the Trust may incur as a result of its legal obligation to
provide indemnification to its officers, Trustees, agents and shareholders)
incurred by the Trust or the Series; (xv) fees, voluntary assessments and other
expenses incurred in connection with membership in investment company
organizations; (xvi) costs of mailing and tabulating proxies and costs of
meetings of shareholders, the Board and any committees thereof; (xvii) the cost
of investment company literature and other publications provided by the Trust to
its Trustees and officers; (xviii) costs of mailing, stationery and
communications equipment; (xix) expenses incident to any dividend, withdrawal or
redemption options; (xx) charges and expenses of any outside pricing service
used to value portfolio securities; (xxi) interest on borrowings of the Trust;
and (xxii) fees or expenses related to license agreements with respect to
securities indices.
(c) The Trust or the Series may pay directly any expenses incurred by
it in its normal operations and, if any such payment is consented to by Xxxxxxxx
Xxxxxxxx and acknowledged as otherwise payable by Xxxxxxxx Xxxxxxxx pursuant to
this Contract, the Series may reduce the fee payable to Xxxxxxxx Xxxxxxxx
pursuant to Paragraph 7 thereof by such amount. To the extent that such
deductions exceed the fee payable to Xxxxxxxx Xxxxxxxx on any monthly payment
date, such excess shall be carried forward and deducted in the same manner from
the fee payable on succeeding monthly payment dates.
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(d) Xxxxxxxx Xxxxxxxx will assume the cost of any compensation for
services provided to the Trust received by the officers of the Trust and by
those Trustees who are interested persons of the Trust.
(e) The payment or assumption by Xxxxxxxx Xxxxxxxx of any expenses of
the Trust or the Series that Xxxxxxxx Xxxxxxxx is not required by this Contract
to pay or assume shall not obligate Xxxxxxxx Xxxxxxxx to pay or assume the same
or any similar expense of the Trust or the Series on any subsequent occasion.
7. Compensation.
(a) For the services provided and the expenses assumed pursuant to this
Contract, with respect to the Series, the Trust will pay to Xxxxxxxx Xxxxxxxx a
fee, computed daily and paid monthly, at an annual rate of 0.70%, expressed as a
percentage of average daily net assets of the Series.
(b) The fee shall be computed daily and paid monthly to Xxxxxxxx
Xxxxxxxx on or before the first business day of the next succeeding calendar
month.
(c) If this Contract becomes effective or terminates before the end of
any month, the fee for the period from the effective day to the end of the month
or from the beginning of such month to the date of termination, as the case may
be, shall be prorated according to the proportion which such period bears to the
full month in which such effectiveness or termination occurs.
8. Limitation of Liability of Xxxxxxxx Xxxxxxxx. Xxxxxxxx Xxxxxxxx and
its officers, directors, employees and delegates, including any Sub-Adviser to
the Series, shall not be liable for any error of judgment or mistake of law or
for any loss suffered by the Trust, the Series or any of its shareholders, in
connection with the matters to which this Contract relates, except to the extent
that such a loss results from willful misfeasance, bad faith or gross negligence
on its part in the performance of its duties or from reckless disregard by it of
its obligations and duties under this Contract. 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 Trust shall be deemed, when
rendering services to the Series or the Trust or acting with respect to any
business of the Series or the Trust, to be rendering such service to or acting
solely for the Series or the Trust and not as an officer, director, employee, or
agent or one under the control or direction of Xxxxxxxx Xxxxxxxx even though
paid by it.
9. Limitation of Liability of the Trustees and Shareholders of the
Trust. The Trustees of the Trust and the shareholders of the Series shall not be
liable for any obligations of the Series or the Trust under this Agreement and
Xxxxxxxx Xxxxxxxx agrees that, in asserting any rights or claims under this
Agreement, it shall look only to the assets and property of the Trust in
settlement of such right or claim, and not to such Trustees or shareholders.
10. Duration and Termination.
(a) This Contract shall become effective for the Series upon the day
and year first written above, provided that this Contract has been approved for
the Series by a vote of a
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majority of those Trustees of the Trust who are not parties to this Contract or
interested persons of any such party cast at a meeting called for the purpose of
voting on such approval and in which the Trustees may participate by any means
of communication that allows all Trustees participating to hear each other
simultaneously during the meeting.
(b) Unless sooner terminated as provided herein, this Contract shall
continue in effect for the Series for a period of 150 days after the day and
year first above written.
(c) Notwithstanding the foregoing, with respect to the Series, this
Contract may be terminated at any time, without the payment of any penalty, by
vote of the Board or by a vote of a majority of the outstanding voting
securities of the Series on ten days' written notice to Xxxxxxxx Xxxxxxxx and
may be terminated by Xxxxxxxx Xxxxxxxx at any time, without the payment of any
penalty, on sixty days' written notice to the Trust. Termination of this
Contract with respect to the Series shall in no way affect the continued
validity of this Contract.
11. 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, and no amendment of this contract as to the
Series shall be effective until approved by vote of the Independent Trustees or
a majority of the Series' outstanding voting securities.
12. 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 9 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 New York or the Commonwealth of Massachusetts conflict with the
applicable provisions of the 1940 Act, the latter shall control.
13. 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 outstanding voting securities," "affiliated person,"
"interested person," "assignment," "broker," "investment adviser," "national
securities exchange," "net assets," "prospectus," "sale," "sell" and "security"
shall have the same meaning as such terms have in the 1940 Act, subject to such
exemption as may be granted by the Securities and Exchange Commission by any
rule, regulation or order. Where the effect of a requirement of the 1940 Act
reflected in any provision of this contract is relaxed by a rule, regulation or
order of the Securities and Exchange Commission, whether of special or general
application, such provision shall be deemed to incorporate the effect of such
rule, regulation or order.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated as of the day and year first above
written.
PAINEWEBBER AMERICA FUND
Attest: /s/ Xxxxxxxx Xxxxxxxx By /s/ Xxxxxx X. X'Xxxxxxx
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Assistant Secretary Name: Xxxxxx X. X'Xxxxxxx
Title: Vice President and Secretary
XXXXXXXX XXXXXXXX ASSET
MANAGEMENT INC.
Attest: /s/ Xxxxx X. Xxxxxx By /s/ Xxx X. Doberman
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First Vice President and Name: Xxx X. Doberman
Associate General Counsel Title: Senior Vice President and
General Counsel
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