EXHIBIT 23(h)(1)(B)
FIRST PACIFIC MUTUAL FUND, INC.
ADMINISTRATIVE AGREEMENT
ADMINISTRATIVE AGREEMENT made this _____ day of __________, 2011, by and
between First Pacific Mutual Fund, Inc., a Maryland corporation, (the
"Corporation") for the First Pacific Low Volatility Fund series, and Xxx
Financial Group Inc., a Hawaii corporation (the "Administrator"). All
references to any series of the Corporation will be called the "Fund"
unless expressly noted otherwise.
BACKGROUND
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The Fund, a series of the Corporation, is organized and operated as an
open-end, non-diversified management investment company, registered under the
Investment Company Act of 1940, as amended (the "1940 Act"). The Corporation
desires to retain the Administrator to render administrative services to the
Fund, and the Administrator is willing to render such services on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. The Corporation hereby appoints the Administrator to act as
administrator to the Fund, subject to the supervision and direction of the Board
of Directors of the Fund, for the period and on the terms set forth in this
Agreement. The Administrator accepts such appointment and agrees to render the
services herein described, for the compensation herein provided.
2. The Administrator shall furnish the Fund administrative services.
Administrative services shall include the compliance matters of the Fund.
Compliance for the Fund includes, but is not limited to: filings with the
Securities and Exchange Commission, the Financial Industry Regulatory Authority,
and state and other regulatory organizations (updating, amending and filing
prospectus, annual and semi-annual reports, proxy material and blue sky
requirements); establishing and maintaining written supervisory procedures and
compliance manuals; researching and communicating changes in applicable rules
and regulations; preserving all books and records.
(a) The Administrator shall use its best judgment in the
performance of its duties under this Agreement.
(b) The Administrator, in the performance of its duties and
obligations under this Agreement, shall act in conformity with the Corporation's
Articles of Incorporation and By-Laws, and the Prospectus of the Fund and the
instructions and directions of the Board of Directors of the Corporation, and
will conform to and comply with the requirements of the 1940 Act and all other
applicable federal and state laws and regulations.
(c) The Administrator shall maintain all books and records and
shall render to the Corporation's Board of Directors such periodic and special
reports as the Board may reasonably request.
(d) The services provided by the Administrator hereunder are not
to be deemed exclusive, and the Administrator shall be free to render similar
services to others. While information and recommendations supplied to the Fund
shall, in the Administrator's judgment, be appropriate under the circumstances,
they may be different from the information supplied to other investment
companies and customers. The Fund shall be entitled to equitable treatment
under the circumstances in receiving information, and any other services, but
the Fund shall not be entitled to receive preferential treatment as compared
with the treatment given to any other investment company or customer.
(e) The Administrator shall perform such other services as are
reasonably incidental to the foregoing duties.
3. The Administrator agrees that no officer or director of the
Administrator, or of any affiliate of the Administrator, will deal for or on
behalf of the Fund with himself as principal or agent, or with any corporation,
partnership or other person in which he may have a financial interest, except
that this shall not prohibit:
(a) Officers and directors of the Administrator, or of any
affiliate of the Administrator, from having a financial interest in the Fund, in
the Administrator or any affiliate of the Administrator.
(b) Officers and directors of the Administrator, or of any
affiliate of the Administrator, from providing services to the Fund of a type
usually and customarily provided to an investment company, pursuant to a written
agreement approved by the Board of Directors of the Fund, including a majority
of the disinterested directors of the Fund (as defined in the 1940 Act).
4. If any occasion should arise in which the Administrator or any of
its officers or directors advises persons concerning the shares of the Fund, the
Administrator or such officer or director will act solely on its, her or his own
behalf and not in any way on behalf of the Fund.
5. The Administrator agrees that, except as herein otherwise expressly
provided, neither it nor any of its officers or directors shall at any time
during the period of this Agreement make, accept or receive, directly or
indirectly, any fees, profits or emoluments of any character in connection with
the purchase or sale of securities (except securities issued by the Fund) or
other assets by or for the Fund.
6. The Administrator shall keep the Fund's books and records required
to be maintained by it pursuant to paragraph 3 hereof. The Administrator agrees
that all records which it maintains for the Fund are the property of the Fund
and it will surrender promptly to the Fund any of such records upon the Fund's
request. The Administrator further agrees to preserve for the periods
prescribed by Rule 31a-2 of the Commission under the 1940 Act any such records
as are required to be maintained by the Administrator pursuant to paragraph 2
hereof.
7. For the services provided and the expenses assumed pursuant to this
Agreement, the Fund will pay to the Administrator as full compensation therefore
a fee at an annualized rate of up to .05% of the Fund's average daily net
assets. This fee will be compounded daily as of the close of business and will
be paid to the Administrator monthly within ten (10) business days after the
last day of each month and such management fee shall be adjusted, if necessary,
at the time of the payment due in the last month in the fiscal year of the Fund.
The Administrator fee shall be prorated for any fraction of a month at the
commencement or termination of this Agreement.
8. In the event the expenses of the Fund for any fiscal year (including
the fees payable to the Administrator but excluding interest, taxes, brokerage
commissions, distribution fees, amortization of organization expenses and
litigation and indemnification expenses and other extraordinary expenses not
incurred in the ordinary course of the Fund's business) exceed the limit set by
applicable regulation of state securities commissions, if any, the compensation
due to the Administrator hereunder will be reduced by the amount of such excess
or postponed so that at no time will there be any accrued but unpaid liability
under this expense limitation. Any such reductions or payments are subject to
readjustment during the year, and the Administrator's obligation hereunder will
be limited to the amount of its fee paid or accrued with respect to such fiscal
year.
9. The Administrator shall give the Fund the benefit of its best
judgment and effort in rendering service hereunder. The Administrator shall not
be liable for any error of judgment or mistake of law for any loss suffered by
the Fund in connection with the matters to which this Agreement relates, except
a loss resulting from a breach of fiduciary duty with respect to the receipt of
compensation for services (in which case any award of damages shall be limited
to the period and the amount set forth in Section 36(b)(3) of the 0000 Xxx) of a
loss resulting from willful misfeasance, bad faith or negligence on its part in
the performance of its duties or from reckless disregard by it of its
obligations and duties under this Agreement. Any person employed by the
Administrator, who may be or become an employee of and paid by any other
entity affiliated with the Fund, such as the manager, distributor, or custodian
to the Fund, shall be deemed, when acting within the scope of his employment by
such other affiliated entity, to be acting in such employment solely for such
other affiliated entity and not as the Administrator's employee or agent.
10. This Agreement shall continue in effect for a period of more than
two (2) years from the date hereof only so long as such continuance is
specifically approved at least annually in conformity with the requirements of
the 1940 Act; provided, however, that this Agreement may be terminated by the
Fund at any time, without the payment of any penalty, by the Board of Directors
of the Fund or by vote of a majority of the outstanding voting securities (as
defined in the 0000 Xxx) of the Fund, or by the Administrator at any time,
without the payment of any penalty, on not more than sixty (60) days nor less
than thirty (30) days written notice to the other party. This Agreement shall
terminate automatically in the event of its assignment (as defined in the 1940
Act).
11. Nothing in this Agreement shall limit or restrict the right of any
of the Administrator's directors, officers, or employees who may also be a
director, officer or employee of the Fund to engage in any other business or to
devote his time and attention in part to the administration or other aspects of
any business, whether of a similar or dissimilar nature, nor limit nor restrict
the Administrator's right to engage in any other business or to render services
of any kind to any other corporation, firm, individual or association. Nothing
in this Agreement shall prevent the Administrator or any affiliated person (as
defined in the 0000 Xxx) of the Administrator from acting as administrator for
any other person, firm or corporation and expressly represents that it will
undertake no activities which, in its judgment, will adversely affect the
performance of its obligations to the Fund under the Agreement.
12. Neither this Agreement nor any transaction made pursuant hereto
shall be invalidated or in any way affected by the fact that directors,
officers, agents and/or shareholders of the Fund are or may be interested in the
Administrator, or any successor or assignee thereof, as directors, officers,
shareholders or otherwise; that directors, officers, shareholders or agents
of the Administrator are or may be interested in the Fund as directors,
officers, shareholders or otherwise; or that the Administrator or any successor
or assignee, is or may be interested in the Fund as shareholders or otherwise;
provided, however, that neither the Administrator nor any officer or director of
the Administrator or of the Corporation shall sell to or buy from the Fund
any property or security other than a security issued by the Fund, except in
accordance with an applicable order or exemptive rule of the Commission.
13. Except as otherwise provided herein or authorized by the Board of
Directors of the Corporation from time to time, the Administrator shall for all
purposes herein deemed to be an independent contractor, and, except as expressly
provided or authorized in this Agreement, shall have no authority to act for or
represent the Fund in any way or otherwise be deemed an agent of the Fund. The
Fund and the Administrator are not partners or joint venturers with each other
and nothing herein shall be construed so as to make them such partners or joint
venturers or impose any liability as such on either of them.
14. During the term of this Agreement, the Corporation agrees to furnish
the Administrator at its principal office with all prospectuses, proxy
statements, reports to stockholders, sales literature, or other material
prepared for distribution to stockholders of the Fund or the public, which refer
to the Administrator in any way, prior to use thereof and not to use such
material if the Administrator reasonably objects in writing within five (5)
business days (or such other time as may be mutually agreed) after receipt
thereof. In the event of termination of this Agreement, the Corporation will
continue to furnish to the Administrator copies of any of the above mentioned
materials which refer in any way to the Administrator. The Corporation shall
furnish or otherwise make available to the Administrator such other information
relating to the business affairs of the Corporation or of the Fund as the
Administrator at any time, or from time to time, reasonably requests in order to
discharge its obligations hereunder.
15. This Agreement may be amended by mutual consent, but the consent of
the Fund must be obtained in conformity with the requirements of the 1940 Act.
16. This Agreement shall be subject to all applicable provisions of law,
including, without limitation, the applicable provisions of the 1940 Act.
17. This Agreement shall be governed by and construed in accordance with
the laws of the State of Hawaii.
18. Compensation to be paid to the Administrator hereunder shall be
separate and distinct from organizational expenses, if any, to be reimbursed to
the Administrator.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first above
written.
FIRST PACIFIC MUTUAL FUND, INC.
By: ______________________________________
Xxxxxxxx X.X. Xxx, President
[Corporate Seal]
Attest: ___________________________________
Xxxxxx Xxxx Xxx, Secretary
XXX FINANCIAL GROUP INC.
By: ______________________________________
Xxxxxxxx X.X. Xxx, President
[Corporate Seal]
Attest: ___________________________________
Xxxxxx Xxxx Xxx, Secretary
