Exhibit 6(a)(ii)
AMENDMENT TO DISTRIBUTION AGREEMENT
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The Distribution Agreement dated October 24, 1986 between The Xxxxx Fund
and Xxxx Xxxxx & Company, Incorporated as amended December 31, 1996, is hereby
amended to reflect the creation of Class C shares for all Portfolios other than
the Xxxxx Money Market Portfolio. The amended Distribution Agreement is affirmed
in all respects except that Paragraphs 1.7, 1.9 and 1.10 of the Agreement are
amended to read as follows:
1.7 As promptly as is possible after the last day of each month this
Agreement is in effect the Fund may reimburse Xxxxx for certain expenses
incurred by Xxxxx in connection with the offering and sales of the Class B
Shares of each of the portfolios of the Fund, other than the Xxxxx Money Market
Portfolio (each a "Portfolio" and collectively, the "Portfolios"), under this
Agreement that are not covered by any contingent deferred sales charges received
by Xxxxx with respect to Class B Shares of that Portfolio; provided that such
payment shall be made in any month only to the extent that such payment,
together with any other payments made by the Fund pursuant to its Plan of
Distribution for Class B Shares adopted in accordance with Rule 12b-1 under the
1940 Act shall not exceed .0625% (.75% on an annualized basis) of the average
daily net assets represented by the Class B Shares of each of the Portfolios for
the prior month. If distribution expenses incurred during a month in excess of
any contingent deferred sales charges received by Xxxxx in respect of the Class
B Shares of a Portfolio are not fully reimbursed by said monthly payment, the
unpaid portion of the expenses may be carried forward for payment by the
Portfolio at the end of the following month(s) and interest, at the prevailing
broker loan rate, may be charged thereon but only if such payment would not
cause the Portfolio for the month to exceed the monthly or annual limitations on
distribution expenses stated above. The payments contemplated by this paragraph
shall be made only out of the assets allocable to each Portfolio's Class B
Shares.
For purposes of this Agreement, "distribution expenses" of Xxxxx shall mean
all expenses borne by Xxxxx or by any other person with which Xxxxx has an
agreement approved by the Fund, which expenses represent payment for activities
primarily intended to result in the sale of Class B Shares, including, but not
limited to the following to the extent that they relate to Class B Shares:
(a) payments made to and expenses of persons who provide support
services in connection with the distribution of the Shares, including, but
not limited to, answering routine inquiries regarding the Portfolios,
processing shareholder transactions and providing any other shareholder
services not otherwise provided by the Fund's transfer agent;
(b) costs relating to the formulation and implementation of marketing
and promotional activities, including, but not limited to, direct mail
promotions and television, radio, newspaper, magazine and other mass media
advertising;
(c) costs of printing and distributing prospectuses and reports of the
Fund to prospective shareholders of the Portfolios;
(d) costs involved in preparing, printing and distributing sales
literature pertaining to the Portfolios; and
(e) costs involved in obtaining whatever information, analyses and
reports with respect to marketing and promotional activities on behalf of
the Portfolios that the Fund may from time to time deem advisable.
Expenses incurred in connection with promotional activities shall be
identified to the Portfolio involved, except that, where expenses cannot be
identified to any particular portfolio, expenses shall be allocated among the
Portfolios pro rata on the basis of their relative net assets represented by
Class B Shares. Distribution expenses shall not include any expenditures in
connection with services that Xxxxx, any of its affiliates or any other person
have agreed to bear without reimbursement.
In addition to the foregoing, as promptly as is possible after the last day
of each month this Agreement is in effect, the Fund may, as compensation to
Xxxxx for its distribution-related activities with respect to Class C Shares of
the Portfolios, make payments to Xxxxx at an annual rate of up to .75% of the
average daily net assets of each Portfolio represented by the Class C Shares of
that Portfolio, such payments to be made, in each case, only out of the assets
allocable to the Portfolio's Class C Shares as contemplated by the Fund's Plan
of Distribution for Class C Shares. (Each of such Plan of Distribution and the
Plan of Distribution for Class B Shares is hereinafter referred to as a "Plan.")
1.9 Xxxxx shall prepare and deliver reports to the Treasurer of the Fund,
for review by the Trustees, on a regular, at least quarterly basis showing the
distribution expenses expected to be incurred in the ensuing quarter pursuant to
this Agreement and the Plans and the purposes therefor. Xxxxx shall also prepare
and deliver reports to the Treasurer of the Fund, for review by the Trustees, on
a regular, at least quarterly basis showing the distribution expenses actually
incurred in the past quarter, as well as any supplemental reports as the
Trustees, from time to time, may request.
1.10 Xxxxx acknowledges that payments under each Plan are subject to the
approval of the Fund's Board of Trustees and that no Portfolio is contractually
obligated to make payments in any amount or at any time, including those in
reimbursement of Xxxxx for expenses and interest thereon incurred in a prior
month or year.
This Amendment is accepted and agreed to by the Parties by their authorized
representatives as indicated by their signatures below on this 31st of July,
1997.
THE XXXXX FUND
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Treasurer
XXXX XXXXX & COMPANY, INCORPORATED
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Executive Vice President
