Exhibit No. 5(a)
PAINEWEBBER AMERICA FUND
FORM OF DISTRIBUTION CONTRACT
CONTRACT made as of September 12, 2000, between PaineWebber America
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
1940, as amended ("l940 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 an unlimited number of shares of beneficial
interest as Class A shares, Class B shares, Class C shares and/or Class Y shares
(referred to collectively as "Shares"); and
WHEREAS the Fund desires to retain Xxxxxxxx Xxxxxxxx as principal
distributor 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 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 Xxxxxxxx Xxxxxxxx is willing to act as principal distributor 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 Xxxxxxxx Xxxxxxxx as its
exclusive agent to be the principal distributor to sell and to arrange for the
sale of the 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
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 Xxxxxxxx Xxxxxxxx.
(a) Xxxxxxxx Xxxxxxxx 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, Xxxxxxxx Xxxxxxxx will hold itself
available to receive purchase orders, satisfactory to Xxxxxxxx Xxxxxxxx, 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) Xxxxxxxx Xxxxxxxx in its discretion may enter into
agreements to sell 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 Shares shall be the net asset
value per share as next determined by the Fund following receipt of an order at
Xxxxxxxx Xxxxxxxx' principal office plus the applicable initial sales charge, if
any, computed as set forth in the Registration Statement. 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 Shares.
(f) To facilitate redemption of Shares by shareholders
directly or through dealers, Xxxxxxxx Xxxxxxxx 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) Xxxxxxxx Xxxxxxxx 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) 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 Dealer Agreements and to Delegate Duties
as Distributor. With respect to the Shares of any or all Series, Xxxxxxxx
Xxxxxxxx may enter into dealer agreements with PaineWebber and any other
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, 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 dealer
agreement imposes 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 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
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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 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.
5. Compensation.
(a) As compensation for its service activities under this
contract with respect to Class A, B and C shares, Xxxxxxxx Xxxxxxxx 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, Xxxxxxxx Xxxxxxxx
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, Xxxxxxxx Xxxxxxxx shall retain the
initial sales charge, if any, on purchases of Shares as set forth in the
Registration Statement. Xxxxxxxx Xxxxxxxx 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, Xxxxxxxx Xxxxxxxx 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) Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx
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 Xxxxxxxx Xxxxxxxx at its principal office.
(b) The Fund shall determine in its sole discretion whether
certificates shall be issued with respect to the Shares. If the Fund has
determined that certificates shall be issued, the Fund will not cause
certificates representing Shares to be issued unless so requested by
shareholders. If Xxxxxxxx Xxxxxxxx transmits such request, the Fund will cause
certificates evidencing Shares to be issued in such names and denominations as
Xxxxxxxx Xxxxxxxx shall from time to time direct.
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(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 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 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 Shares under the 1933 Act to the end that there will be available
for sale such number of Shares as 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 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 Trust 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. 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 Shares with the Securities and Exchange 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
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 Shares under this Contract, including the additional cost of
printing copies of prospectuses, statements of
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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
Xxxxxxxx' employees and others for selling Shares, and all expenses of Xxxxxxxx
Xxxxxxxx, 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 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 therewith) 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, 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 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 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
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 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
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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 Board members in connection with the issuance or sale of any of its Shares.
(b) Xxxxxxxx Xxxxxxxx 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 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. 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, 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 Xxxxxxxx Xxxxxxxx even though paid by Xxxxxxxx Xxxxxxxx.
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.
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(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 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 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.
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
Commonwealth of Massachusetts. To the extent that the applicable laws of the
Commonwealth of Massachusetts conflict with the applicable provisions of the
1940 Act, the latter shall control.
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 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 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. As used in this Contract,
the terms "majority of the outstanding
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voting securities," "interested person" and "assignment" 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.
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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XXXXXXXX XXXXXXXX ASSET
ATTEST: MANAGEMENT INC.
By:
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