XXX XXXXXX FUNDS INC.
DISTRIBUTION AND SHAREHOLDER ASSISTANCE AGREEMENT
This Agreement is entered into as of the 1st day of May , 2001, by and between
Xxx Xxxxxx Funds Inc. (the "Company") and the undersigned (the "Broker-Dealer").
WHEREAS, the Company is the principal underwriter of the open-end investment
companies listed on Schedule 1 to this Agreement (hereinafter individually the
"Fund" or collectively the "Funds"); and
WHEREAS, the Broker-Dealer is registered as a broker-dealer with the National
Association of Securities Dealers, Inc.; and
WHEREAS, each respective Fund has adopted a distribution plan (the "Distribution
Plan") pursuant to Rule 12b-1 (the "Rule") under the Investment Company Act of
1940, as amended (the "1940 Act"), and a service plan (the "Service
Plan")(collectively, the "Plans") relating to Class II Shares of such Fund, the
Plans being described in the Fund's Class II Shares' Prospectus and Statement of
Additional Information; and
WHEREAS, each respective Fund's Plans authorize the Company to enter into
distribution and shareholder assistance agreements such as this Agreement with
broker-dealers selected by the Company, and the Broker-Dealer has been so
selected; and
WHEREAS, each respective Fund's Plans authorize the Company to make payments at
a rate specified in an agreement such as this Agreement applied to the aggregate
average daily net asset value of Class II Shares of each respective Fund sold by
such broker-dealer on or after the effective date of this Agreement, as
determined pursuant to Section 5 hereof, and held at the close of each day in
accounts of clients or customers of a particular broker-dealer, such amount
being referred to herein as the "Holding Level"; and
WHEREAS, this Agreement is a "related agreement" to the Distribution Plan as
that term is used in the Rule and is subject to all of the provisions of the
Rule as to such agreements;
NOW, THEREFORE, the Company and the Broker-Dealer agree as follows:
1. Subject to continuing compliance with its obligations pursuant to
Sections 2 and 3 hereof, the Broker-Dealer shall be entitled to
distribution fee and service fee payments, if any, to be paid by the
Company at the annual percentage rates as set forth from time to time in
the current Prospectus of the Fund (and subject to the Fund's current
Distribution Plan and current Service Plan) applied to the Broker-Dealer's
Holding Level, paid on a quarterly basis (prorated for any portion of such
period during which this Agreement is in effect for less than the full
amount of such period in arrears); it is understood and agreed that the
Company, acting reasonably and in good faith, may make final and binding
determinations as to such Broker-Dealer's continuing compliance and as to
whether or not any Fund's Class II Shares are to be considered in
determining the Holding Level of any particular broker-dealer and what
Fund's Class II Shares, if any, are to be attributed to such purpose to a
particular broker-dealer, to a different broker-dealer or to no
broker-dealer. Payments shall be made to the Broker-Dealer named above and
portions of the payments may be, in the discretion of the Broker-Dealer,
paid over to individual registered representatives of said Broker-Dealer to
whom there have been assigned accounts of clients or customers of the
Broker-Dealer with respect to which the respective Holding Level was
determined.
2. Any distribution fee payments with respect to Class II Shares of a Fund
to be made in accordance with Section 1 hereof shall be paid to the
Broker-Dealer to compensate the Broker-Dealer for activities which are
intended to result in the sale of such Fund's Class II Shares
("Distribution Related Activities") as described in the Rule and the Fund's
Distribution Plan. Distribution Related Activities may include without
limitation: printing and distributing any prospectuses and reports used for
sales purposes of the Fund's Class II Shares; preparing and distributing
any advertising, promotional or sales literature and related expenses used
for sales purposes of the Fund's Class II Shares; compensation of
broker-dealers or sales personnel in connection with sales of the Fund's
Class II Shares; education of broker-dealers and their representatives for
sales purposes of the Fund's Class II Shares; and similar
distribution-related expenses.
3. Any service fee payments with respect to Class II Shares of a Fund to be
made in accordance with Section 1 hereof shall be paid to the Broker-Dealer
who sells such shares and provides personal services to contract holders
and/or maintains contract holders accounts ("Servicing Related Activities")
as described in the Fund's Service Plan. Servicing Related Activities may
include without limitation: responding to customer inquiries, providing
information on customer investments, maintaining the account of each client
or customer who has an investment in the Fund.
4. The parties hereto acknowledge that the Fund maintains the right at any
time and from time to time without notice to the Broker-Dealer to amend its
current Prospectus, its Distribution Plan and its Service Plan subject to
the terms thereof and the Rule, which may include amending the amounts of
the distribution fee and the amount of the service fee to be paid pursuant
hereto.
5. This Agreement shall go into effect as of the date set forth above
provided that no payments shall be made under this Agreement until the
Agreement is approved by a vote of each Fund's Board of Trustees and by a
vote of those Trustees who are not interested persons of the Fund (as
defined in the 0000 Xxx) and have no direct or indirect financial interest
in the operation of the Distribution Plan or its related agreements, such
as this Agreement, related to the Distribution Plan (the "Disinterested
Trustees"), cast in person at a meeting called for the purpose of voting on
the Distribution Plan and related agreements to the Distribution Plan as
that term is used in the Rule. This Agreement shall continue in effect
(unless terminated) if continuance is specifically approved at least
annually by each Fund's Board of Trustees and Disinterested Trustees in the
manner heretofore specified for initial approval. This Agreement will
terminate automatically in the event of its assignment (as that term is
used in the Rule) or if the Distribution Plan is terminated. This Agreement
may also be terminated at any time, without the payment of any penalty, on
sixty (60) days written notice to the Broker-Dealer, by vote of a majority
of the Disinterested Trustees or by vote of a majority (as that term is
used in the Rule) of the outstanding voting securities of the Fund.
6. The Broker-Dealer represents and agrees that it will maintain and
preserve all records as required by law to be maintained and preserved in
connection with providing the Distribution Related Activities and Servicing
Related Activities (collectively, the "Services"), and will otherwise
comply with all laws, rules and regulations applicable to such Services.
7. The Broker-Dealer agrees to provide copies of all the historical records
relating to transactions between the Fund and contract holders, and all
written communications and other related materials regarding the Fund to or
from such contract holders, as reasonably requested by the Fund or its
representatives (which representatives, include, without limitation, its
auditors, legal counsel or the Fund, as the case may be) to enable the Fund
or its representatives to monitor and review the Services provided by the
Broker-Dealer, or comply with any request of the Board of Trustees or
Disinterested Trustees of the Fund, or of a governmental body or
self-regulatory organization.
8. The Broker/Dealer agrees that it will permit the Fund's investment
adviser, the Company, the Fund or their representatives, to have reasonable
access to its personnel and records in order to facilitate the monitoring
of the quality of the Services.
9. The Broker-Dealer hereby agrees to notify the Company promptly if for
any reason it is unable to perform fully and promptly any, of its
obligations under this Agreement.
IN WITNESS WHEREOF, this Agreement is executed as of the date first above
written.
Firm Name: USAllianz Investor Services, LLC
Tax ID: 00-0000000
Firm Address: 0000 Xxxxxx Xxxxx Xxxxx
Xxxx, Xxxxx, Xxx: Xxxxxxxxxxx, XX 00000-0000
Signature: /s/ Xxxxxxxxxxx X. Xxxxxxxxx
Name: Xxxxxxxxxxx X.Xxxxxxxxx
Title: President
XXX XXXXXX FUNDS INC.
By: /s/ Xxxxx X Xxxxxx
Name: Xxxxx Xxxxxx Title: Vice President
0 Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000
Schedule 1
PARTICIPATING XXX XXXXXX LIFE INVESTMENT TRUST PORTFOLIOS
Emerging Growth Portfolio - Class II Shares
