Exhibit 6(d)
PAINEWEBBER INVESTMENT TRUST II
DISTRIBUTION CONTRACT
CLASS Y SHARES
CONTRACT made as of November 10, 1995 between PAINEWEBBER INVESTMENT
TRUST II, 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 PaineWebber Emerging Markets Equity 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 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 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.
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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 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.
(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
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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 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, state-
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ments 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
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.
(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 trustee of the Fund or who controls the Fund
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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 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
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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 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.
(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
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"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 outstanding 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 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
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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," "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 INVESTMENT TRUST II
By:
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ATTEST: XXXXXXXX XXXXXXXX ASSET MANAGEMENT INC.
By:
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