EXHIBIT 23(a)(2)
XXXX XXXXXXXXX SERIES TRUST
AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
The undersigned, being all of the trustees of Xxxx Xxxxxxxxx Series
Trust, a Massachusetts business trust created and existing under an Agreement
and Declaration of Trust dated April 1, 1988, as amended, a copy of which is on
file in the Office of the Secretary of The Commonwealth of Massachusetts (the
"Trust"), wishing to correct a defective provision in the Second Amended and
Restated Agreement and Declaration of Trust, do hereby direct that this
Amendment No. 1 be filed with the Secretary of The Commonwealth of Massachusetts
and do hereby consent to and adopt the following amendment to such Second
Amended and Restated Agreement and Declaration of Trust:
1. Exhibit 3.6 of the Second Amended and Restated Agreement and
Declaration of Trust is amended to read in its entirety as attached hereto.
The foregoing amendment shall become effective as of the time it is
filed with the Secretary of State of The Commonwealth of Massachusetts.
IN WITNESS WHEREOF, each of the undersigned Trustees as aforesaid do
hereto set their hands this 22nd day of December, 1997.
/s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
/s/ XXXX XXXXXXXXX
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Xxxx Xxxxxxxxx
/s/ XXXXXXX XXXX
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Xxxxxxx Xxxx
/s/ XXXX X. XXXXXXXXX
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Xxxx X. Xxxxxxxxx
/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
EXHIBIT 3.6
XXXX XXXXXXXXX SERIES TRUST
PLAN PURSUANT TO RULE 18f-3(d) UNDER THE INVESTMENT COMPANY ACT OF 1940
Effective August 5, 1996
Amended and Restated December 8, 1997
WHEREAS, the Board of Trustees of Xxxx Xxxxxxxxx Series Trust (the
"TRUST") has considered the following amended and restated multi-class plan (the
"PLAN") under which the Trust may offer multiple classes of shares of its now
existing and hereafter created series pursuant to Rule 18f-3 (the "RULE") under
the Investment Company Act of 1940 (the "1940 ACT"); and
WHEREAS, a majority of the Trustees of the Trust and a majority of the
Trustees who are not interested persons of the Trust have found the Plan, as
proposed, to be in the best interests of each class of shares of each series of
the Trust individually and the Trust as a whole.
NOW, THEREFORE, the Trust hereby approves and adopts the following
Plan pursuant to the Rule.
THE PLAN
Each now existing and hereafter created series ("FUND")(1) of the
Trust may from time to time issue one or more of the following classes of
shares: Institutional shares, Adviser shares, Select shares and Investor shares.
Each class is subject to such investment minimums and other conditions of
eligibility as are set forth in the Trust's prospectuses, each as from time to
time in effect (each, a "PROSPECTUS"). The differences in expenses among these
classes of shares, and the conversion and exchange features of each class of
shares, are set forth below in this Plan, which is subject to change, to the
extent permitted by law and by the Agreement and Declaration of Trust and
By-laws of the Trust, as amended from time to time, by action of the Board of
Trustees of the Trust.
CLASS CHARACTERISTICS
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(1) The current Funds of the Trust are the U.S. Small Capitalization
Series, the International Small Capitalization Series, the Japan Series, the
Xxxx Xxxxxxxxx Market Neutral Fund and the Xxxx Xxxxxxxxx Double Alpha Market
Fund.
Institutional, Adviser, Select and Investor shares of a Fund represent
interests in the assets of such Fund and have identical dividend and liquidation
rights. The classes differ materially only with respect to (i) the level of
shareholder service fee ("SERVICE FEE"), if any, borne by each class, and (ii)
the level of distribution fee ("DISTRIBUTION FEE"), if any, borne by each class.
Service Fees are paid for services rendered and expenses borne in connection
with personal services rendered to shareholders of a class and the maintenance
of shareholder accounts. Service Fees are paid pursuant to Servicing
Agreement(s) between the Trust and appropriate shareholder servicing agent(s)
and under related plans (each a "SERVICE PLAN") for applicable classes.
Distribution Fees are paid in connection with services and expenses primarily
intended to result in the sale of shares pursuant to a Distributor's Contract
between the Trust and Xxxx Xxxxxxxxx Funds Distributor, Inc., the Funds'
distributor (the "DISTRIBUTOR"), and under a separate plan (each a "DISTRIBUTION
PLAN") for each applicable class adopted by the Trust pursuant to Rule 12b-1
under the 0000 Xxx.
(1) INSTITUTIONAL SHARES are sold without any initial or deferred
sales charges and are not subject to any ongoing Distribution Fees or Service
Fees.
(2) ADVISER SHARES are sold without any initial or deferred sales
charges and are not subject to any ongoing Distribution Fees, but are subject to
a Service Fee at an annual rate with respect to a Fund equal to 0.25% of such
Fund's average daily net assets attributable to Adviser shares.
(3) SELECT SHARES are sold without any initial or deferred sales
charges, but are subject to a Service Fee at an annual rate with respect to a
Fund equal to 0.25% of such Fund's average daily net assets attributable to
Select shares. Select shares are also subject to a Distribution Fee. The
Distribution Plan for Select shares permits a Fund to pay the Distributor up to
0.50% per annum of the Fund's average daily net assets attributable to Select
shares. However, the Distributor's Contract currently provides that the
Distributor will be paid 0.25% per annum of a Fund's average daily net assets
attributable to Select shares.
(4) INVESTOR SHARES are sold without any initial or deferred sales
charges, but are subject to a Service Fee at an annual rate with respect to a
Fund equal to 0.25% of such Fund's average daily net assets attributable to
Investor shares. Investor shares are also subject to a Distribution Fee. The
Distribution Plan for Investor shares permits a Fund to pay the Distributor up
to 0.50% per annum of the Fund's average daily net assets attributable to
Investor shares. However, the Distributor's Contract currently provide that the
Distributor will be paid 0.25% per annum of a Fund's average daily net assets
attributable to Investor shares.
EXPENSE ALLOCATIONS
Institutional, Adviser, Select and Investor shares pay the expenses
associated with their different distribution and/or shareholder servicing
arrangements. Each class may, at the Trustees' discretion, also pay a different
share of other expenses, not including advisory or custodial fees or other
expenses related to the management of the Trust's assets, if these expenses are
actually incurred in a different amount by that class, or if the
class receives services of a different kind or to a different degree than the
other classes ("CLASS EXPENSES"). All other expenses will be allocated to each
class on the basis of the net asset value of that class in relation to the net
asset value of a particular Fund attributable to that class.
EXCHANGE FEATURES / CONVERSIONS
Shares of any particular class of a Fund may be exchanged only for
shares of the same class of another Fund or, if a Fund does not offer the same
class of shares, then the class of shares with the lowest expenses that a given
shareholder is eligible to purchase. There is no sales charge on exchanges. A
shareholder may not exchange shares of a class of one Fund for shares of the
same class of another Fund that is not qualified for sale in the state of the
shareholder's residence. Although the Trust has no current intention of
terminating or modifying the exchange privilege, it reserves the right to do so
at any time. Except as otherwise permitted by regulations of the Securities and
Exchange Commission, the Trust will give 60 days' advance notice to shareholders
of any termination or material modification of the exchange privilege. All
exchanges will be made based on the respective net asset values next determined
following receipt of the request by the Funds.
The Trust does not currently offer any automatic conversion feature
among the classes.
DIVIDENDS/DISTRIBUTIONS
Each Fund intends to pay out as dividends substantially all of its net
investment income (which comes from dividends and any interest it receives from
its investments and net realized short-term capital gains). Each Fund also
intends to distribute substantially all of its net realized long-term capital
gains, if any, after giving effect to any available capital loss carryover.
Dividends paid by the Funds with respect to Institutional, Adviser, Select and
Investor shares, to the extent any dividends are paid, will be calculated in the
same manner, at the same time, and will be in the same amount, except that any
Service Fee or Distribution Fee charged to a particular class will be borne
solely by such class and, if applicable, at the Trustees discretion, Class
Expenses relating to a particular class may be borne exclusively by that class.
VOTING RIGHTS
Each class of shares of each Fund has identical voting rights except
that each class has exclusive voting rights on any matter submitted to
shareholders that relates solely to that class, and has separate voting rights
on any matter submitted to shareholders in which the interests of one class
differ from the interests of any other class. Each class of shares has exclusive
voting rights with respect to matters pertaining to any Distribution Plan or
Service Plan applicable to that class. All classes of shares of a Fund will vote
together, except with respect to any Distribution Plan or Service Plan
applicable to a class or when a class vote is required by the 1940 Act.
RESPONSIBILITIES OF THE TRUSTEES
On an ongoing basis, the Trustees will monitor the Trust for the
existence of any material conflicts among the interests of the classes of
shares. The Trustees shall further monitor on an ongoing basis the use of
waivers or reimbursement of expenses by the Manager to guard against
cross-subsidization between classes. The Trustees, including a majority of the
independent Trustees, shall take such action as is reasonably necessary to
eliminate any such conflict that may develop.
REPORTS TO THE TRUSTEES
The Manager and/or the Administrator will be responsible for reporting
any potential or existing conflicts among the classes of shares to the Trustees.
