Exhibit 6(h)
EXCLUSIVE DEALER AGREEMENT
CLASS Y SHARES OF PAINEWEBBER AMERICA FUND
AGREEMENT made as of July 1, 1991 and amended November 10, 1995,
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 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 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 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 desires to retain PaineWebber as its
exclusive agent in connection with the offering and sale of the Class Y
Shares of each such 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 Y
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 Y Shares on the terms and for the period set forth in this
Contract. 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 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 0000 Xxx.
2. Services, Duties and Representations of PaineWebber.
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(a) PaineWebber agrees to sell the Class Y 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
Contract and the Registration Statement.
(b) Upon the later of the date of this Contract or
the initial offering of Class Y Shares by a Series, PaineWebber will hold
itself available to receive orders, satisfactory to PaineWebber and
Xxxxxxxx Xxxxxxxx, for the purchase of Class Y 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 Y
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 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 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 Y Shares.
(f) To facilitate redemption of Class Y Shares by
shareholders directly or through dealers, PaineWebber is authorized but
not required on behalf of Xxxxxxxx Xxxxxxxx and the Fund to repurchase
Class Y 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.
(g) PaineWebber represents and warrants that: (i) it
is a member in good standing of the National Association of Securities
Dealers, Inc. and agrees to abide by the Rules of Fair Practice of such
Association; (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;
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and (iv) it will comply with all federal and state laws and regulations
applicable to the offer and sale of the Class Y Shares.
(h) PaineWebber shall not incur any debts or obliga-
tions on behalf of Xxxxxxxx Xxxxxxxx or the Fund. PaineWebber shall bear
all costs that it incurs in selling the Class Y Shares and in complying
with the terms and conditions of this Contract as more specifically set
forth in paragraph 8.
(i) PaineWebber shall not permit any employee or
agent to offer or sell Class Y Shares unless such person is duly licensed
under applicable federal and state laws and regulations.
(j) PaineWebber shall not (i) furnish any information
or make any representations concerning the Class Y 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 Y 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 Contract are not impaired thereby. Nothing in this Contract
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 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.
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Xxxxxxxx Xxxxxxxx shall not be obligated to pay any
compensation to PaineWebber hereunder nor to reimburse any of
PaineWebber's expenses incurred hereunder.
5. Duties of Xxxxxxxx Xxxxxxxx.
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(a) It is understood that the Fund reserves the right at
any time to withdraw all offerings of Class Y 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 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 PaineWebber may request, and Xxxxxxxx
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Xxxxxxxx shall cooperate fully in the efforts of PaineWebber to sell and
arrange for the sale of the Class Y Shares and in the performance of
PaineWebber under this Contract.
(c) Xxxxxxxx Xxxxxxxx shall comply with all state and
federal laws and regulations applicable to a distributor of the Class Y
Shares.
6. Advertising. Xxxxxxxx Xxxxxxxx agrees to make available
such sales and advertising materials relating to the Class Y 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 Y Shares to Xxxxxxxx Xxxxxxxx for approval.
PaineWebber agrees not to publish or distribute such materials 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 Y 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 Y
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 Y Shares, and
all expenses of PaineWebber, its investment executives and employees and
others who engage in or support the sale of Class Y 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.
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(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
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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 sales or advertising materials with respect to the
Class Y 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 Contract.
(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 Contract.
10. Duration and Termination.
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(a) This Contract 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 this Contract or in any
agreements related thereto (all such trustees collectively being referred
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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
with respect to any given Series or 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 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 Contract 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 Y Shares of such Series on 30 days' written notice
to Xxxxxxxx Xxxxxxxx and PaineWebber.
(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.
This Contract will automatically terminate in the event of its assignment
or in the event that the Distribution contract is terminated.
11. Amendment of this Agreement. No provision of this
Contract 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 Y Shares, but only for so long as this Contract 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 Contract 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 Contract are
included for convenience of reference only and in no way define
or delimit any of the provisions hereof or otherwise affect their
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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," "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 Contract
to be executed by their officers designated as of the day and year first
written above.
XXXXXXXX XXXXXXXX ASSET
MANAGEMENT INC.
Attest: By:
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PAINEWEBBER INCORPORATED
Attest: By:
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