Exhibit 24(b)(15)(i)
SERVICE PLAN AND AGREEMENT
BETWEEN
XXXXXXXXXXX FUND AND
XXXXXXXXXXX FUNDS DISTRIBUTOR, INC.
FOR CLASS A SHARES
SERVICE PLAN AND AGREEMENT dated the 1st day of August, 1994, by and
between XXXXXXXXXXX FUND (the "Fund") and XXXXXXXXXXX FUNDS DISTRIBUTOR,
INC. (the "Distributor").
1. The Plan. This Plan is the Fund's written service plan for its Class
A Shares described in the Fund's registration statement as of the date
this Plan takes effect, contemplated by and to comply with Article III,
Section 26 of the Rules of Fair Practice of the National Association of
Securities Dealers, pursuant to which the Fund will reimburse the
Distributor for a portion of its costs incurred in connection with the
personal service and the maintenance of shareholder accounts ("Accounts")
that hold Class A Shares (the "Shares") of such series and class of the
Fund. The Fund may be deemed to be acting as distributor of securities
of which it is the issuer, pursuant to Rule 12b-1 under the Investment
Company Act of 1940 (the "1940 Act"), according to the terms of this Plan.
The Distributor is authorized under the Plan to pay "Recipients," as
hereinafter defined, for rendering services and for the maintenance of
Accounts. Such Recipients are intended to have certain rights as third-
party beneficiaries under this Plan.
2. Definitions. As used in this Plan, the following terms shall have
the following meanings:
(a) "Recipient" shall mean any broker, dealer, bank or other
financial institution which: (i) has rendered services in connection with
the personal service and maintenance of Accounts; (ii) shall furnish the
Distributor (on behalf of the Fund) with such information as the
Distributor shall reasonably request to answer such questions as may arise
concerning such service; and (iii) has been selected by the Distributor
to receive payments under the Plan. Notwithstanding the foregoing, a
majority of the Fund's Board of Trustees (the "Board") who are not
"interested persons" (as defined in the 0000 Xxx) and who have no direct
or indirect financial interest in the operation of this Plan or in any
agreements relating to this Plan (the "Independent Trustees") may remove
any broker, dealer, bank or other institution as a Recipient, whereupon
such entity's rights as a third-party beneficiary hereof shall terminate.
(b) "Qualified Holdings" shall mean, as to any Recipient, all Shares
owned beneficially or of record by: (i) such Recipient, or (ii) such
customers, clients and/or accounts as to which such Recipient is a
fiduciary or custodian or co-fiduciary or co-custodian (collectively, the
"Customers"), but in no event shall any such Shares be deemed owned by
more than one Recipient for purposes of this Plan. In the event that two
entities would otherwise qualify as Recipients as to the same Shares, the
Recipient which is the dealer of record on the Fund's books shall be
deemed the Recipient as to such Shares for purposes of this Plan.
3. Payments.
(a) Under the Plan, the Fund will make payments to the Distributor,
within forty-five (45) days of the end of each calendar quarter, in the
amount of the lesser of: (i) .0625% (.25% on an annual basis) of the
average during the calendar quarter of the aggregate net asset value of
the Shares computed as of the close of each business day, or (ii) the
Distributor's actual expenses under the Plan for that quarter of the type
approved by the Board. The Distributor will use such fee received from
the Fund in its entirety to reimburse itself for payments to Recipients
and for its other expenditures and costs of the type approved by the Board
incurred in connection with the personal service and maintenance of
Accounts including, but not limited to, the services described in the
following paragraph. The Distributor may make Plan payments to any
"affiliated person" (as defined in the 0000 Xxx) of the Distributor if
such affiliated person qualifies as a Recipient.
The services to be rendered by the Distributor and Recipients
in connection with the personal service and the maintenance of Accounts
may include, but shall not be limited to, the following: answering
routine inquiries from the Recipient's customers concerning the Fund,
providing such customers with information on their investment in shares,
assisting in the establishment and maintenance of accounts or sub-accounts
in the Fund, making the Fund's investment plans and dividend payment
options available, and providing such other information and customer
liaison services and the maintenance of Accounts as the Distributor or the
Fund may reasonably request. It may be presumed that a Recipient has
provided services qualifying for compensation under the Plan if it has
Qualified Holdings of Shares to entitle it to payments under the Plan.
In the event that either the Distributor or the Board should have reason
to believe that, notwithstanding the level of Qualified Holdings, a
Recipient may not be rendering appropriate services, then the Distributor,
at the request of the Board, shall require the Recipient to provide a
written report or other information to verify that said Recipient is
providing appropriate services in this regard. If the Distributor still
is not satisfied, it may take appropriate steps to terminate the
Recipient's status as such under the Plan, whereupon such entity's rights
as a third-party beneficiary hereunder shall terminate.
Payments received by the Distributor from the Fund under the
Plan will not be used to pay any interest expense, carrying charge or
other financial costs, or allocation of overhead of the Distributor, or
for any other purpose other than for the payments described in this
Section 3. The amount payable to the Distributor each quarter will be
reduced to the extent that reimbursement payments otherwise permissible
under the Plan have not been authorized by the Board of Trustees for that
quarter. Any unreimbursed expenses incurred for any quarter by the
Distributor may not be recovered in later periods.
(b) The Distributor shall make payments to any Recipient quarterly,
within forty-five (45) days of the end of each calendar quarter, at a rate
not to exceed .0625% (.25% on an annual basis) of the average during the
calendar quarter of the aggregate net asset value of the Shares computed
as of the close of each business day of Qualified Holdings (excluding
Shares acquired in reorganizations with investment companies for which
Xxxxxxxxxxx Management Corporation or an affiliate acts as investment
adviser and which have not adopted a distribution plan at the time of the
reorganization with the Fund). However, no such payments shall be made
to any Recipient for any such quarter in which its Qualified Holdings do
not equal or exceed, at the end of such quarter, the minimum amount
("Minimum Qualified Holdings"), if any, to be set from time to time by a
majority of the Independent Trustees. A majority of the Independent
Trustees may at any time or from time to time increase or decrease and
thereafter adjust the rate of fees to be paid to the Distributor or to any
Recipient, but not to exceed the rate set forth above, and/or increase or
decrease the number of shares constituting Minimum Qualified Holdings.
The Distributor shall notify all Recipients of the Minimum Qualified
Holdings and the rate of payments hereunder applicable to Recipients, and
shall provide each such Recipient with written notice within thirty (30)
days after any change in these provisions. Inclusion of such provisions
or a change in such provisions in a revised current prospectus shall
constitute sufficient notice.
(c) Under the Plan, payments may be made to Recipients: (i) by
Xxxxxxxxxxx Management Corporation ("OMC") from its own resources (which
may include profits derived from the advisory fee it receives from the
Fund), or (ii) by the Distributor (a subsidiary of OMC), from its own
resources.
4. Selection and Nomination of Trustees. While this Plan is in effect,
the selection or replacement of Independent Trustees and the nomination
of those persons to be Trustees of the Fund who are not "interested
persons" of the Fund shall be committed to the discretion of the
Independent Trustees. Nothing herein shall prevent the Independent
Trustees from soliciting the views or the involvement of others in such
selection or nomination if the final decision on any such selection and
nomination is approved by a majority of the incumbent Independent
Trustees.
5. Reports. While this Plan is in effect, the Treasurer of the Fund
shall provide at least quarterly a written report to the Fund's Board for
its review, detailing the amount of all payments made pursuant to this
Plan, the identity of the Recipient of each such payment, and the purposes
for which the payments were made. The report shall state whether all
provisions of Section 3 of this Plan have been complied with. The
Distributor shall annually certify to the Board the amount of its total
expenses incurred that year with respect to the personal service and
maintenance of Accounts in conjunction with the Board's annual review of
the continuation of the Plan.
6. Related Agreements. Any agreement related to this Plan shall be in
writing and shall provide that: (i) such agreement may be terminated at
any time, without payment of any penalty, by vote of a majority of the
Independent Trustees or by a vote of the holders of a "majority" (as
defined in the 0000 Xxx) of the Fund's outstanding Shares of the Class,
on not more than sixty days written notice to any other party to the
agreement; (ii) such agreement shall automatically terminate in the event
of its "assignment" (as defined in the 1940 Act); (iii) it shall go into
effect when approved by a vote of the Board and its Independent Trustees
cast in person at a meeting called for the purpose of voting on such
agreement; and (iv) it shall, unless terminated as herein provided,
continue in effect from year to year only so long as such continuance is
specifically approved at least annually by the Board and its Independent
Trustees cast in person at a meeting called for the purpose of voting on
such continuance.
7. Effectiveness, Continuation, Termination and Amendment. This Plan
has been approved by a vote of the Independent Trustees cast in person at
a meeting called on January 11, 1994 for the purpose of voting on this
Plan, and takes effect as of July 1, 1994. Unless terminated as
hereinafter provided, it shall continue in effect until December 31, 1994
and from year to year thereafter or as the Board may otherwise determine
only so long as such continuance is specifically approved at least
annually by the Board and its Independent Trustees cast in person at a
meeting called for the purpose of voting on such continuance. This Plan
may be terminated at any time by vote of a majority of the Independent
Trustees or by the vote of the holders of a "majority" (as defined in the
0000 Xxx) of the Fund's outstanding voting securities of the Class. This
Plan may not be amended to increase materially the amount of payments to
be made without approval of the Class A Shareholders, in the manner
described above, and all material amendments must be approved by a vote
of the Board and of the Independent Trustees.
8. Disclaimer of Shareholder and Trustee Liability. The Distributor
understands that the obligations of the Fund under this Plan are not
binding upon any shareholder or Trustee of the Fund personally, but bind
only the Fund and the Fund's property. The Distributor represents that
it has notice of the provisions of the Declaration of Trust of the Fund
disclaiming shareholder and Trustee liability for acts or obligations of
the Fund.
XXXXXXXXXXX FUND
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, Assistant Secretary
XXXXXXXXXXX FUNDS DISTRIBUTOR, INC.
By: /s/ Xxxxxxxxx X. Xxxx
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Xxxxxxxxx X. Xxxx
Vice President and Secretary
OFMI/400
