AMENDED CLASS B DISTRIBUTION PLAN AND AGREEMENT PURSUANT TO RULE 12B-1
UNDER THE INVESTMENT COMPANY ACT OF 1940
PLAN AND AGREEMENT made as of May 27, 1998, and amended as of June 29,
1999 by and between Orbitex Group of Funds (the "Trust") and Funds Distributor,
Inc. ("FDI").
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company
which offers for public sale separate series of shares of beneficial interest,
each corresponding to a distinct portfolio which may be further divided into
separate classes of shares (the "Shares"); and
WHEREAS, the Trust has entered into a Distribution Agreement (the
"Distribution Agreement") with FDI pursuant to which FDI has agreed to serve as
the Distributor of the Shares; and
WHEREAS, the Trust desires to adopt this amended Distribution Plan and
Agreement pursuant to Rule 12b-1 under the 1940 Act (the "Plan") on behalf of
its series with respect to the Class B Shares of the Orbitex Strategic Natural
Resources Fund, Orbitex Info-Tech & Communications Fund, Orbitex Growth Fund,
Orbitex Focus 30 Fund, Orbitex Health & Biotechnology Fund and of such other
series as may hereafter be designated (the "Funds") by the Trust's Board of
Trustees (the "Board") pursuant to which the Trust, with respect to each Fund,
will pay an account maintenance and a distribution fee to FDI in connection with
the distribution of the Class B Shares of the Fund; and
WHEREAS, FDI desires to serve as Distributor of the Shares and to
provide, or arrange for the provision of distribution services pursuant to the
Plan;
NOW THEREFORE, the parties agree as follows:
1. A. Each Fund is authorized to pay to FDI, as compensation for FDI's
account maintenance services under this Plan and Agreement, an account
maintenance fee at the rate of 0.25%, and, as compensation for FDI's sales and
promotional activities and services under this Plan and Agreement, a
distribution fee at the rate of 0.75%, on an annualized basis of the average net
assets attributable to Class B shares of the Fund. Such fees are to be paid by
each Fund monthly, or at such other intervals as the Board shall determine. Such
fees shall be based upon the applicable Fund's average daily net assets during
the preceding month, and shall be calculated and accrued daily. FDI shall use
such fee, among other things, to make the payments contemplated by Paragraph
2(B) below and to pay interest and principal where such payments have been
financed.
B. Any Fund may pay fees to FDI at a lesser rate than the fees
specified in Section I.A. of this Plan and Agreement as agreed upon by the Board
and FDI and as approved in the manner specified in subsections (a) and (b) of
Paragraph 3 of this Plan.
2. A. The Trust hereby authorizes FDI to enter into Sub-Agreements [in
the form attached hereto] with certain securities dealers or brokers,
administrators and others ("Recipients") to provide compensation to such
Recipients based on the net asset value of shares of the Fund held by clients or
customers of that Recipient, for activities and services of the type referred to
in Paragraph (B) of this Paragraph 2.
B. FDI shall provide, or arrange for Recipients with which FDI has
entered into Sub-Agreements to provide, distribution and account maintenance
services. The distribution services shall include assistance in the offering and
sale of shares of each Fund and in other aspects of the marketing of the shares
to clients or prospective clients of the respective Recipients including any
advertising or marketing services provided by or arranged by FDI with respect to
a Fund. The account
maintenance services shall include answering routine inquiries concerning a
Fund; assisting in the maintenance of accounts or sub-accounts in a Fund and in
processing purchase or redemption transactions; making a Fund's investment plans
and shareholder services available; and providing such other information and
services to investors in shares of a Fund as FDI or the Trust, on behalf of the
Fund, may reasonably request.
3. This Plan shall not take effect with respect to any Fund unless it
has been approved, together with any related agreements, by a majority vote,
cast in person at a meeting (or meetings) called for the purpose of voting on
such approval, of: (a) the Board; and (b) those Trustees of the Trust who are
not "interested person" of the Trust and have no direct or indirect financial
interest in the operation of this Plan or any agreements related thereto (the
"Independent Trustees").
4. This Plan may continue in full force and effect with respect to a
Fund for so long as such continuance is specifically approved at least annually
in the manner provided for approval of this Plan in subsections (a) and (b) of
paragraph 3.
5. FDI shall provide to the Board and the Board shall review, at least
quarterly, a written report of the amounts expended with respect to each Fund by
FDI under this Plan and the purposes for which such expenditures were made.
6. The Trust or any Fund may terminate this Plan at any time, without
the payment of any penalty, by vote of the Board, by vote of a majority of the
Independent Trustees, or by vote of a majority of the outstanding voting
securities of the affected Fund. FDI may terminate this Plan with respect to the
Trust or any Fund, without payment of penalty, upon sixty (60) days written
notice to the Trust or the affected Fund. Notwithstanding the foregoing, this
Plan shall terminate automatically in the event of its assignment.
7. This Plan may not be amended to increase materially the amount of
fees to be paid by a Fund unless such amendment is approved by a vote of a
majority of the outstanding Class B shares of the affected Fund, and no material
amendment to the other provisions of this Plan shall be made unless approved in
the manner provided for approval and annual renewal in subsections (a) and (b)
of Paragraph 3 hereof.
8. The amount of distribution and account maintenance fees payable by
any Fund to FDI under this Plan and the amounts received by FDI under the
Distribution Agreement may be greater or lesser than the expenses actually
incurred by FDI on behalf of such Fund in serving as Distributor of the Shares.
The distribution and account maintenance fees with respect to a Fund will be
payable by such Fund to FDI until either this Plan or the Distribution Agreement
is terminated or not renewed with respect to the Shares of that Fund. If either
this Plan or the Distribution Agreement is terminated or not renewed with
respect to the Shares of any Fund, any distribution expenses incurred by FDI on
behalf of the Fund which are in excess of payments which FDI has received or
accrued through the termination date shall be the sole responsibility and
liability of FDI, and are not obligations of the Fund.
9. While this Plan is in effect, the selection and nomination of the
Trustees who are not interested persons of the Trust shall be made solely at the
discretion of the Trustees who are not interested persons of the Trust.
10. As used in this Plan, the terms "majority of the outstanding voting
securities," "assignment" and "interested person" shall have the same meanings
as those terms have in the 1940 Act.
11. The Trust shall preserve copies of this Plan (including any
amendments thereto) and any related agreements and all reports made pursuant to
Paragraph 5 hereof for a period of not less than six years from the date
thereof, the first two years in an easily accessible place.
12. The Trustees of the Trust and the shareholders of each Fund shall
not be liable for any obligations of the Trust or any Fund under this Plan, and
FDI or any other person, in asserting any rights or claims under this Plan,
shall look only to the assets and property of the Trust or such Fund in
settlement of any such right or claim, and not to such Trustees or shareholders.
IN WITNESS WHEREOF, the Trust and FDI have executed this Amended
Class B Distribution Plan and Agreement on the 29 day of June, 1999.
ORBITEX GROUP OF FUNDS
Attest: By:
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Secretary President
FUNDS DISTRIBUTOR, INC.
Attest: By:
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Secretary President
