EX-99.M
XXXXXX SERIES TRUST
PLAN OF DISTRIBUTION PURSUANT TO RULE 12b-1
AND RELATED AGREEMENT
THIS PLAN AND RELATED AGREEMENTS between Xxxxxx Series Trust, a
Delaware Business Trust (the "Trust") and Xxxxxx Services LLC ("HS") made as of
this 1st day of September, 1998.
WHEREAS, the Trust proposes to engage in business as an open-end, non-
diversified management investment company and is registered as such under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust has retained HS to serve as a distributor of shares
of beneficial interest of the Trust representing interests in the Xxxxxx Money
Market Fund (the "Fund"), the sole series of the Trust, pursuant to a separate
Distribution Agreement with HS; and
WHEREAS, two classes of Shares of the Fund have been authorized:
Institutional Shares and Administrative Shares; and
WHEREAS, the Trust wishes to adopt a plan (the "12b-1 Plan") to
authorize the use of Fund assets to finance certain activities in connection
with the distribution of Administrative Shares of the Fund in accordance with
Rule 12b-1 under the 1940 Act and to enter into an agreement with HS to
facilitate the distribution of the Fund's Shares; and
WHEREAS, HS (the "Distributor") desires to enter into such an
agreement pursuant to the 12b-1 Plan (the "Agreement") on the terms and
conditions set forth below; and
WHEREAS, the 12b-1 Plan and the Agreement have been approved by the
Board of Trustees of the Trust, including a majority of the trustees who are not
"interested persons" (as defined by the 0000 Xxx) of the Trust and who have no
direct or indirect financial interest in the operation of the 12b-1 Plan or the
Agreement or any other agreement in respect of the 12b-1 Plan (the
"Disinterested Trustees"), by vote cast in person at a meeting called for the
purpose of voting on the 12b-1 Plan and the Agreement;
NOW, THEREFORE, the Trust hereby adopts this 12b-1 Plan, and the
Trust, on behalf of the Fund, and the Distributor hereby enter into the
Agreement pursuant to the 12b-1 Plan, in accordance with the requirements of
Rule 12b-1 under the 1940 Act, and provide and agree as follows:
1. The Trust is hereby authorized to utilize the assets of the Fund
to finance certain activities in connection with distribution of the Fund's
Administrative Shares, as specified below.
2. The Trust is hereby authorized to finance the following
activities in connection with the sale of Administrative Shares of the Fund to
investors ("Distribution Services"): (a) the payment of compensation (including
performance-based compensation) to the
Distributor and to other securities dealers and financial institutions which
engage in efforts to promote the sale of Administrative Shares of the Fund and
which sell such Administrative Shares; (b) the preparation, printing and
distribution of reports and prospectuses, statements of additional information
and profiles for distribution to and use by potential investors in
Administrative Shares of the Fund; (c) the preparation, printing and
distribution of sales literature and advertising relating to Administrative
Shares of the Fund, including but not limited to direct mail solicitation and
television, radio, newspaper and other media advertisements; and (d) the payment
of other expenses and the costs of other activities related to the promotion and
sale of Administrative Shares of the Fund as may from time to time be
specifically authorized by the Board of Trustees and approved by a majority of
the Disinterested Trustees.
3. Under the 12b-1 Plan, the Fund is authorized to expend its assets
in an amount which shall not exceed 0.25% annually of the average daily net
assets of the Fund attributable to Administrative Shares for Distribution
Services. All such expenditures shall be allocated as a class expense of
Administrative Shares of the Fund.
4. The Distributor hereby undertakes to use its best efforts to
promote sales of Administrative Shares of the Fund by engaging in those
activities, which may include but are not limited to those specified in
paragraph 2 above, as it from time to time believes will further sales of
Administrative Shares. In furtherance thereof, the Distributor agrees: (a) to
promote the sale of Administrative Shares of the Fund to its customers and to
other investors and (b) to pay and bear all other expenses relating to its
distribution related activities.
5. In consideration of the services provided by the Distributor, the
Trust agrees on behalf of the Fund to pay a monthly fee to the Distributor for
Distribution Services, which fee shall be computed at the annual rate of 0.25%
of the average daily net assets of the Fund attributable to Administrative
Shares held by persons who have purchased Administrative Shares through the
Distributor or through broker-dealers that have entered into selling agreements
with such Distributor.
6. The Distributor agrees to provide quarterly written reports to
the Treasurer of the Trust describing the particular Distribution Services that
have been provided during the relevant quarter by it and by any broker-dealers
with which it has entered into agreements with respect to the Trust and setting
forth the costs and expenses incurred by the Distributor in connection
therewith, and further agrees to provide such additional information regarding
the services provided and the amounts expended as may reasonably be requested by
the Board of Trustees or officers of the Trust for purposes of reviewing the
continued appropriateness of the 12b-1 Plan and the Agreement.
7. The Treasurer of the Trust shall provide, and the Board of
Trustees of the Trust shall review, at least quarterly, a written report of all
amounts expended pursuant to the 12b-1 Plan and the Agreement. Each such report
shall: (a) set forth the amounts expended during the period by the Trust
pursuant to the 12b-1 Plan and the nature of such expenditures; and (b) identify
the types of Distribution Services provided during the quarter by the
Distributor
2
and others and the costs and expenses incurred by the Distributor with respect
to each type of service.
8. The 12b-1 Plan and the Agreement shall each continue in effect
for a period of one year from the date hereof unless terminated as provided
below. Thereafter, the 12b-1 Plan and the Agreement shall each continue in
effect from year to year, provided that the continuance of each is approved at
least annually by the Board of Trustees of the Trust, including a majority of
the Disinterested Trustees, by vote cast in person at a meeting called for the
purpose of voting on such continuance, and provided that the Disinterested
Trustees have concluded, in the exercise of their reasonable business judgment
and in light of their fiduciary duties under state law and under Sections 36(a)
and 36(b) of the 1940 Act, that there is a reasonable likelihood that the 12b-1
Plan or the Agreement, as the case may be, will benefit the Fund and the holders
of Administrative Shares.
9. The 12b-1 Plan may be terminated at any time, without penalty, by
the vote of a majority of the Disinterested Trustees or by the vote of a
majority of the outstanding Administrative Shares of the Fund. The Agreement
may be terminated by the Distributor, or by the vote of a majority of the
Disinterested Trustees or by the vote of a majority of the outstanding
Administrative Shares of the Fund, without penalty, at any time upon 30 days'
written notice.
10. So long as the 12b-1 Plan remains in effect, the selection and
nomination of persons to serve as Trustees of the Trust who are not "interested
persons" (as defined by the 0000 Xxx) of the Trust shall be committed to the
discretion of the Disinterested Trustees then in office. However, nothing
contained herein shall prevent the participation of other persons in the
selection and nomination process; provided that a final decision on any such
selection or nomination shall remain within the sole discretion of, and be
approved by, the Disinterested Trustees.
11. The 12b-1 Plan may not be amended to increase materially the
amount to be spent for distribution by the Fund hereunder without the approval
of a majority of the outstanding Administrative Shares of the Fund. All
material amendments to the 12b-1 Plan or to the Agreement must be approved by
the Board of Trustees of the Trust, including a majority of the Disinterested
Trustees, by vote cast in person at a meeting called for the purpose of voting
on such amendment.
12. The 12b-1 Plan shall remain in effect as such, so as to authorize
the use of the Fund's assets in the amounts and for the purposes set forth
herein, notwithstanding the termination of the Agreement or the occurrence of an
"assignment," as defined by the 1940 Act and the rules thereunder, of the
Agreement. However, the Agreement shall terminate automatically in the event of
such an "assignment." Upon a termination of the Agreement, the Fund may
continue to make payments pursuant to the 12b-1 Plan to the Distributor only
upon the approval of a new agreement. However, in lieu of such an agreement
with the Distributor, the Trust may adopt other arrangements regarding the use
of the amounts authorized to be paid by the Fund hereunder. Any new agreement
or other arrangements shall be subject to approval by the Board of Trustees of
the Trust, including a majority of the Disinterested Trustees, by vote
3
cast in person at a meeting called for such purpose, and subject to compliance
with the other provisions of Rule 12b-1 under the 1940 Act that may be
applicable.
13. The Trust shall preserve copies of this 12b-1 Plan and the
Agreement and all other agreements relating to the 12b-1 Plan and all reports
made pursuant to paragraphs 6 and 7 hereof, together with minutes of all
meetings of its Board of Trustees at which the adoption, amendment or
continuance of the 12b-1 Plan or any such agreement related to the 12b-1 Plan
(including the Agreement) were considered (describing the factors considered and
the basis for decision), in the manner and for the periods specified by Rule
12b-1 and other applicable rules adopted under the 0000 Xxx.
14. The Declaration of Trust states and notice is hereby given that
this Agreement is not executed on behalf of the Trustees of the Trust as
individuals, and the obligations of the Trust under the Agreement are not
binding upon any of the Trustees, officers or shareholders of the Trust
individually, but are binding only upon the assets and property of the Trust.
15. The 12b-1 Plan and the Agreement shall be construed in accordance
with the laws of the State of Illinois and applicable provisions of the 1940
Act. To the extent the applicable law of the State of Illinois conflict with
the applicable provisions of the 1940 Act, the latter shall control.
16. The Agreement between HS and the Trust shall become effective
upon the commencement of the public offering of Shares of the Fund.
IN WITNESS WHEREOF, the Trust has adopted the 12b-1 Plan, and the
Trust and the Distributor have entered into, executed and delivered the
Agreement, as of the day and year first above written.
XXXXXX SERIES TRUST
on behalf of
XXXXXX MONEY MARKET FUND
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
------------------------
Title: President
-----------------------
XXXXXX SERVICES LLC
By: /s/ X. X. Xxxxxxxx, III
------------------------------
Name: X. X. Xxxxxxxx, III
------------------------
Title: Secretary
-----------------------
4
