EXHIBIT (m)(3)
CLASS C DISTRIBUTION PLAN AND AGREEMENT
AS AMENDED MARCH 16, 2000
CLASS C DISTRIBUTION PLAN AND AGREEMENT PURSUANT TO RULE 12B-1
UNDER THE INVESTMENT COMPANY ACT OF 1940
PLAN AND AGREEMENT made as of March 16, 2000, 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 (a "Fund") 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 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 C Shares of the Funds set forth in Appendix A, 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 C 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
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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 C 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.
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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 Class C Distribution
Plan and Agreement on the 16 day of March, 2000.
ORBITEX GROUP OF FUNDS
Attest: BY:
Secretary President
FUNDS DISTRIBUTOR, INC.
Attest: BY:
Secretary President
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APPENDIX A
ORBITEX Info-Tech & Communications Fund
ORBITEX Internet Fund
ORBITEX Emerging Technology Fund
ORBITEX Strategic Infrastructure Fund
ORBITEX Health & Biotechnology Fund
ORBITEX Energy & Basic Materials Fund
ORBITEX Financial Services Fund
ORBITEX Growth Fund
ORBITEX Xxxxxxx Fund
ORBITEX Clermont Fund
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