AMENDED AND RESTATED PLAN OF DISTRIBUTION PURSUANT TO RULE 12b-1
OF
XXXX XXXXXX RETIREMENT SERIES
WHEREAS, Xxxx Xxxxxx Retirement Series (the "Fund") is engaged in business
as an open-end management investment company and is registered as such under
the Investment Company Act of 1940, as amended (the "Act"); and
WHEREAS, on November 23, 1992, the Fund and Xxxx Xxxxxx Xxxxxxxx Inc.
("DWR") entered into a separate Distribution Agreement, pursuant to which the
Fund employed DWR as distributor of the Fund's shares; and
WHEREAS, on November 23, 1992, the Fund adopted a Plan of Distribution
pursuant to Rule 12b-1 under the Act, and the Trustees then determined that
there was a reasonable likelihood that the Plan of Distribution would benefit
the Fund and its shareholders; and
WHEREAS, the Trustees believe that continuation of said Plan of
Distribution, as amended and restated herein, is reasonably likely to continue
to benefit the Fund and its shareholders; and
WHEREAS, the Fund and DWR desire to substitute DW Distributors Inc. (the
"Distributor") in the place of DWR as distributor of the Fund's shares; and
WHEREAS, the Fund, DWR and the Distributor intend that DWR will continue to
promote the sale of Fund shares and provide personal services to Fund
shareholders with respect to their holdings of Fund shares; and
WHEREAS, the Fund and the Distributor have entered into a separate
Distribution Agreement dated as of this date, pursuant to which the Fund has
employed the Distributor in such capacity during the continuous offering of
shares of the Fund; and
WHEREAS, the Fund is authorized to issue shares of beneficial interest in
separate portfolios or series (the "Series") with each such Series representing
interests in a separate portfolio of securities and other assets.
NOW, THEREFORE, the Fund hereby amends and restates the Plan of
Distribution previously adopted, and the Distributor xxxxxx agrees to the terms
of said Plan of Distribution (the "Plan"), as amended and restated herein, in
accordance with Rule 12b-1 under the Act on the following terms and conditions;
1. Subject to the supervision of the Board of Trustees and the terms of
the Distribution Agreement, the Distributor and any of its affiliates,
including Xxxx Xxxxxx, Discover & Co. ("DWDC"), Xxxx Xxxxxx InterCapital Inc.
("InterCapital") or DWR, are authorized to utilize their own resources to
finance services and expenses incurred by any of them in connection with the
distribution of the Fund's shares or services to shareholders, including: (1)
compensation to, and expenses of, account executives and other employees,
including overhead and telephone expenses; (2) sales incentives and bonuses to
sales representatives of the Distributor, DWR, its affiliates and other broker-
dealers, and to marketing personnel in connection with promoting sales of
shares of the Fund; (3) expenses incurred in connection with promoting sales of
shares of the Fund; (4) preparing and distributing sales literature; and (5)
providing advertising and promotional activities, including direct mail
solicitation and television, radio, newspaper, magazine and other media
advertisements.
2. The Distributor hereby undertakes to directly, or indirectly through
DWDC, InterCapital or DWR, bear all costs of rendering the services to be
performed by it under this Plan and under the Distribution Agreement.
3. No Series of the Fund will make separate payments to the Distributor
or any other party pursuant to this Plan, it being recognized that the Series
pay, and will continue to pay, management fees to InterCapital, pursuant to the
Investment Management Agreement or Agreements in effect between the Series and
InterCapital. To the extent that any payment made by any Series of the Fund to
the Distributor or InterCapital, including the payment of any management fees,
should be deemed to be indirect financing of any activity primarily intended to
result in the sales of shares of the Fund within the purview of Rule 12b-1
under the Act, then such payments shall be deemed to be authorized by this
Plan.
4. The Distributor shall provide the Fund for review by the Board of
Trustees, and the Board of Trustees shall review, promptly after the end of
each fiscal quarter a written report regarding the distribution expenses
incurred by the Distributor, DWDC, InterCapital or DWR on behalf of the Fund
during such fiscal quarter, which report shall include: (1) an itemization of
the types of expenses and the purposes therefor; (2) the amounts of such
expenses; and (3) a description of the benefits derived by the Fund.
5. This Plan, as amended and restated, shall become effective upon
approval by a vote of the Board of Trustees of the Fund, and of the Trustees
who are not "interested persons" of the Fund, as defined in the Act, and who
have no direct or indirect financial interest in the operation of this Plan,
cast in person at a meeting called for the purpose of voting on this Plan.
6. This Plan shall continue in effect until April 30, 1993, and from year
to year thereafter, provided such continuance is specifically approved at least
annually in the manner provided for approval of this Plan in paragraph 5
hereof. This Plan may not be amended to institute the assumption of any
payments to be made directly by the Fund for any services provided herein, and
no material amendments to this Plan shall be made unless approved in the manner
provided for approval in paragraph 5 hereof.
7. This Plan may be terminated at any time, without the payment of any
penalty, by vote of a majority of the Trustees who are not "interested persons"
of the Fund, as defined in the Act, and who have no direct or indirect
financial interest in the operation of this Plan, or by any Series by a vote of
a majority of the outstanding voting securities of such Series, as defined in
the Act, on not more than 30 days' written notice to any other party to this
Plan.
8. While this Plan is in effect, the selection and nomination of Trustees
who are not interested persons of the Fund shall be committed to the discretion
of the Trustees who not interested persons.
9. The Fund shall preserve copies of this Plan and all reports made
pursuant to paragraph 4 hereof, for a period of not less than six years from
the date of this Plan or any such report, as the case may be, the first two
years in an easily accessible place.
10. This Plan shall be construed in accordance with the laws of the State
of New York and the applicable provisions of the Act. To the extent the
applicable law of the State of New York, or any of the provisions herein,
conflict with the applicable provisions of the Act, the latter shall control.
11. The Declaration of Trust establishing Xxxx Xxxxxx Retirement Series,
dated May 14, 1992, a copy of which, together with all amendments thereto (the
"Declaration"), is on file in the office of the Secretary of the Commonwealth
of Massachusetts, provides that the name Xxxx Xxxxxx Retirement Series refers
to the Trustees under the Declaration collectively as Trustees, but not as
individuals or personally; and no Trustee, shareholder, officer, employee or
agent of Xxxx Xxxxxx Retirement Series shall be held to any personal liability,
nor shall resort be had to their private property for the satisfaction of any
obligation or claim or otherwise, in connection with the affairs of said Xxxx
Xxxxxx Retirement Series, but the Trust Estate only shall be liable.
IN WITNESS WHEREOF, the Fund, the Distributor and DWR have executed this
Plan of Distribution, as amended and restated, as of the day and year set forth
below in New York, New York.
Dated: November 23, 1992
As amended on January 4, 1993 XXXX XXXXXX RETIREMENT SERIES
By: ..........................
Attest:
...................................
DW DISTRIBUTORS INC.
By: ..........................
Attest:
...................................
XXXX XXXXXX XXXXXXXX INC.
By: ..........................
Attest:
...................................
