Exhibit m
DISTRIBUTION PLAN
FOR THE XXXXX FUND CLASS S SHARES
WHEREAS, The Xxxxx Fund (the "Trust") is registered as an
open-end investment company under the Investment Company Act of 1940 (the "Act")
and consists of one or more separate investment portfolios (the "Funds") as may
be established and designated from time to time;
WHEREAS, the Trust and Xxxxx Funds, Inc. (the "Distributor"),
a broker-dealer registered under the Securities Exchange Act of 1934, have
entered into a Distribution Agreement pursuant to which the Distributor acts as
a distributor of shares of the Funds for sale to the public;
WHEREAS, the Board of Trustees of the Trust has determined to
adopt a Plan (the "Plan") in accordance with the requirements of the Act and has
determined that there is a reasonable likelihood that the Plan will benefit the
Trust and its shareholders;
NOW, THEREFORE, the Trust hereby adopts the Plan with respect
to Class S shares on the following terms and conditions:
1. The Plan will pertain to the Class S shares of Xxxxx Millennium Opportunity
Fund; and to the Class S shares of such Funds as shall be designated from time
to time by the Board of Trustees in any supplement to the Plan ("Supplement").
2. The Trust shall pay the Distributor a fee relating to the distribution and/or
service of the Class S shares of each Fund at the annual rate of 0.25% of the
average daily net assets attributable to that Fund's Class S shares. Such fee
shall be calculated and accrued daily and paid monthly or at such other
intervals as the Trustees shall determine, subject to any applicable restriction
imposed by rules of the National Association of Securities Dealers, Inc. If this
Plan is terminated, the Trust will owe no payments to the Distributor other than
any portion of the distribution fee accrued through the effective date of
termination but then unpaid.
3. The amount set forth in paragraph 2 of this Plan shall be paid for the
Distributor's services as distributor of the Class S shares of a Fund in
connection with any activities or expenses primarily intended to result in the
sale of the Class S shares of that Fund and/or for account maintenance and
personal service to shareholders, including, but not limited to, compensation to
broker-dealers that have entered into a dealer and/or shareholder or
administrative services agreement with the Distributor; compensation to and
expenses of employees of the Distributor who engage in or support distribution
and/or shareholder servicing of a Fund's Class S shares; compensation to banks,
investment advisers, financial institutions and other entities (including the
Distributor itself) for rendering certain shareholder liaison and/or
administrative services; telephone expenses; interest expenses; printing of
prospectuses and reports for other than existing shareholders; preparation,
printing and distribution of sales literature and advertising materials; and
profit on the foregoing.
4. The Plan shall not take effect with respect to Class S shares of a Fund until
it has been approved by a vote of at least a majority (as defined in the Act) of
the outstanding voting securities of Class S of that Fund. With respect to the
submission of the Plan for such a vote, it shall have been effectively approved
with respect to a Fund if a majority of the outstanding voting securities of
Class S of the Fund votes for approval of the Plan, notwithstanding that the
matter has not been approved by a majority of the outstanding voting securities
of the Trust or of any other Fund or class.
5. The Plan shall not take effect until it has been approved, together with any
related agreements and supplements, by votes of a majority of both (a) the Board
of Trustees of the Trust, and (b) those Trustees of the Trust who are not
"interested persons" (as defined in the Act) and have no direct or indirect
financial interest in the operation of the Plan or any agreements related to it
(the "Plan Trustees"), cast in person at a meeting (or meetings) called for the
purpose of voting on the Plan and such related agreement.
6. The Plan shall continue in effect so long as such continuance is specifically
approved at least annually in the manner provided for approval of the Plan in
paragraph 5 hereof.
7. Any person authorized to direct the disposition of monies paid or payable by
the Trust pursuant to the Plan or any related agreements shall provide to the
Trust's Board of Trustees, and the Board shall review, at least quarterly, a
written report of the amounts so expended and the purposes for which such
expenditures were made.
8. Any agreement related to the Plan shall be in writing and shall provide: (a)
that such agreement may be terminated at any time as to a Fund, without payment
of any penalty, by vote of a majority of the Plan Trustees or by vote of a
majority of the outstanding voting securities of Class S of the Fund, on not
more than sixty (60) days' written notice to any other party to the agreement;
and (b) that such agreement shall terminate automatically in the event of its
assignment.
9. The Plan may be terminated at any time with respect to a Fund, without
payment of any penalty, by vote of a majority of the Plan Trustees, or by vote
of a majority of the outstanding voting securities of Class S of the Fund.
10. The Plan may be amended at any time with respect to a Fund by the Board of
Trustees, provided that (a) any amendment to increase materially the costs which
the Fund may bear pursuant to the Plan shall be effective only upon approval by
a vote of a majority of the outstanding voting securities of Class S of the
Fund, and (b) any material amendments of the terms of the Plan shall become
effective only upon approval as provided in paragraph 5 hereof.
11. While the Plan is in effect, the selection and nomination of Trustees who
are not interested persons (as defined in the Act) of the Trust shall be
committed to the discretion of the Trustees who are not interested persons.
12. The Fund shall preserve copies of the Plan, any related agreement and any
report made pursuant to paragraph 7 hereof, for a period of not less than six
(6) years from the date of the Plan, such agreement or report, as the case may
be, the first two (2) years of which shall be in an easily accessible place.
13. It is understood and expressly stipulated that neither the holders of shares
of the Trust nor any Trustee, officer, agent or employees of the Trust shall be
personally liable hereunder, nor shall any resort be had to other private
property for the satisfaction of any claim or obligation hereunder, but the
Trust only shall be liable.
IN WITNESS WHEREOF, the Trust has adopted this Distribution
Plan effective as of the 29th day of June, 1999.
THE XXXXX FUND
By: /S/ XXXX X. XXXXXXXXX
Xxxx X. Xxxxxxxxx, President
