AGREEMENT WITH XXXXX FUNDS(TM)
By this agreement, dated ____________, 19___ (the "Agreement"), Xxxxx
Funds(TM), a Massachusetts business trust with its principal offices located at
00000 Xxxxxx Xxxxx Xxxx., Xxxxx 000, Xxxxxxx, Xxxxx 00000 (the "Trust"), Xxxxx
Xxxxxxx Capital Management Co., with its principal office located at 00000
Xxxxxx Xxxxx Xxxx., Xxxxx 000,, Xxxxxxx, Xxxxx 00000 ( the "Advisor") and
______________________________________________, with its principal offices
located at ________________________________, ("Service Provider"), hereby
covenant, warrant and agree as follows:
1. The Trust is an open-end management investment company registered
under the Investment Company Act of 1940 (the "Act"). The Trust
operates as a series company as defined by Rule 18f-2 under the Act
and is authorized to create and has created various sub-trusts (the
"Funds"). The Trust is further authorized to issue shares of
beneficial interest in the Funds ("Shares"). Pursuant to Rule 12b-1
under the Act, each Fund has adopted a plan of distribution ( each a
"Distribution Plan" and collectively, the "Distribution Plans")
pursuant to which the Funds may utilize a portion of their assets to
engage in any activities related to the distribution of their Shares,
including, but not limited to, the following:
a. payments, including incentive compensation, to securities dealers
or other financial intermediaries, financial institutions,
investment advisors and others that are engaged in the sale of
Shares, or that may be advising shareholders of the Trust
regarding the purchase, sale or retention of Shares;
b. payments including incentive compensation, to securities dealers
or other financial intermediaries, financial institutions,
investment advisors and others that hold Shares for shareholders
in omnibus accounts or as shareholders of record or provide
shareholder support or administrative services to the Fund and
its shareholders;
c. expenses of maintaining personnel (including personnel of
organizations with which the Trust has entered into agreements
related to this Plan) who engage in or support distribution of
Shares or who render shareholder support services not otherwise
provided by the Trust's transfer agent, including, but not
limited to, allocated overhead, office space and equipment,
telephone facilities and expenses, answering routine inquiries
regarding the Trust, processing shareholder transactions, and
providing such other shareholder services as the Trust may
reasonably request;
d. costs of preparing, printing and distributing prospectuses and
statements of additional information and reports of the Fund for
recipients other than existing shareholders of the Fund;
e. costs of formulating and implementing marketing and promotional
activities, including, but not limited to, sales seminars, direct
mail promotions and television, radio, newspaper, magazine and
other mass media advertising;
f. costs of preparing, printing and distributing sales literature;
g. costs of obtaining such information, analyses and reports with
respect to marketing and promotional activities as the Trust may,
from time to time, deem advisable; and
h. costs of implementing and operating the Plans.
2. Pursuant to the terms of this Agreement, Service Provider agrees, upon
request of the Trust, to undertake from time to time distribution
efforts to promote the sale of Shares, including without limitation
any of the activities set forth in paragraph 1 above. Service Provider
warrants to the Trust that in fulfilling its obligations herein,
Service Provider will not solicit, offer, promote, or sell Shares of
any Fund to its clients or to third parties unless Service Provider is
first properly registered as a broker/dealer and has signed a separate
written agreement with the Distributor to sell Shares (a "Selling
Group Agreement"). It is expressly understood and agreed by each party
that this Agreement is not a Selling Agreement.
3. As compensation for providing the services set forth in paragraph 2
above, the Advisor agrees to pay to Service Provider, subject to the
limitations as hereinafter set forth, Monthly Compensation based on
the following formula:
(Monthly Average Assets x .0025) / 12 = Monthly Compensation
Monthly Average Assets means the total closing daily value of assets
invested in a Fund of the Trust for each day of the month, averaged
over that month, by Shareholders for whom Service Provider provides
the services set forth in Paragraph 2 above.
4. The Advisor agrees to provide, upon request and at its sole expense
and discretion, current copies of the Trust's prospectuses and sales
and marketing literature to Service Provider for use by Service
Provider in the discharge of its obligations as heretofore described.
Service Provider agrees to comply with the provisions contained in all
applicable securities laws governing the distribution of Prospectuses
to persons to whom it offers Shares of the Trust. Service Provider
further agrees to deliver, upon the request of the Trust, copies of
any amended Prospectuses to purchasers whose Shares it is holding in
omnibus accounts or as shareholder of record and to deliver to such
persons materials of the Trust. The Trust will conduct its business in
accordance with the procedures set forth in, and the requirements of,
the Prospectuses, including the prompt execution of orders for the
purchase and redemption of Shares and the servicing of shareholder
accounts.
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5. This Agreement will automatically terminate with respect to any
Distribution Plan in the event of its assignment or upon a failure by
the Trust's Board of Trustees to continue to approve the Distribution
Plan. This Agreement may be terminated by any of the parties, without
penalty, upon thirty (30) days' prior written notice to the other
parties. This Agreement may also be terminated as to any Fund at any
time without penalty by the vote of a majority of the members of the
Board of Trustees of the Trust who are not "interested persons" and
who have no direct or indirect financial interest in the Plans or in
any agreement relating to such Plan, including this Agreement, or by a
vote of a majority of the outstanding voting securities of the Fund on
thirty days' written notice.
6. This Agreement shall remain in full force and effect for a period of
one year from the date first noted above and from year to year
thereafter, subject to annual approval by the Board of Trustees and of
the trustees who are not "interested persons" (as such term is defined
in the Investment Company Act of 1940) of the Trust and have no direct
or indirect financial interest in the operation of the Plans or in any
agreements related to the Plans.
7. The parties acknowledge and agree that Service Provider is acting as
an independent contractor, and nothing contained in this Agreement
shall be construed in such a manner that Service Provider shall be
considered an agent or employee of the Trust or the Advisor. The
parties to this Agreement expressly state and affirm that Service
Provider is not an agent or employee of the Trust or Advisor.
8. The parties expressly acknowledge and agree that any obligation of the
Trust arising from this Agreement shall not be binding upon any of the
Trustees, Shareholders, nominees, officers, agents, or employees of
the Trust, personally, but shall bind only the assets of the Trust.
9. Notwithstanding anything to the contrary herein, Service Provider will
indemnify the Trust, the Advisor, underwriter, transfer agent and
custodian of the Trust, and their respective officers, directors,
trustees, partners, employees and agents, and hold them harmless from
any claims or assertions relating to the lawfulness of Service
Provider's participation in this Agreement and the transactions
contemplated hereby or relating to any activities or omissions of any
persons or entities affiliated with Service Provider's company which
are performed in connection with the discharge of its responsibilities
under this Agreement. If any such claims are asserted, the indemnified
parties shall have the right to engage in their own defense, including
the selection and engagement of legal counsel of their choosing, and
all costs of such defense shall be borne by Service Provider.
10. The Trust shall have full authority to take such action as it may deem
advisable in respect to all matters pertaining to the offering of
Shares, including the right in its discretion, without notice, to
suspend sales or withdraw the offering of Shares entirely. The Trust
will promptly notify Service Provider of any such actions.
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11. Service Provider will (i) maintain all records required by law
relating to transactions in Shares and, upon request by the Trust,
promptly make such records available as the Trust may reasonably
request in connection with its operations; and (ii) promptly notify
the Trust if Service Provider experiences any difficulty in
maintaining the records described in the foregoing clause in accurate
and complete manner. In addition, Service Provider and the Trust will
establish appropriate procedures and reporting forms and schedules to
enable the parties hereto to identify all accounts opened and
maintained by Service Provider's customers.
12. This Agreement as set forth herein constitutes the entire agreement
and under-standing of the parties as to the subject matter hereof, and
supersedes all previous discussions and agreements between the parties
as to the matters herein addressed. No party shall be bound by any
representation with respect to the subject matter of this Agreement
other than as expressly set forth herein. This Agreement may be
amended or modified only by a writing signed by all parities hereto.
13. This Agreement shall be governed and construed in accordance with the
laws of the State of Texas, except that any conflict of law rule of
that jurisdiction that may require reference to the laws of some other
jurisdiction shall be disregarded.
14. If any provision of this Agreement is or may be held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless survive and continue in full
force and effect without impairment.
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15. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
to be effective as of the date first noted above.
XXXXX XXXXXXX CAPTIAL XXXXX FUNDS(TM)
MANAGEMENT CO.
___________________________ ______________________________
By: _______________________ By:___________________________
Its _______________________ Its: _________________________
___________________________
By: _______________________
Its: ______________________
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