EXHIBIT 23 (e)
AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
THIS AGREEMENT made this 16th day of May, 2011, by and between FIRST
PACIFIC MUTUAL FUND, INC., a Maryland corporation with an office located at
0000 Xxxxxxxx Xxxxx, Xxxxx #0-000, Xxxxxxxx, Xxxxxx, (the "Corporation"), for
the Hawaii Municipal Fund series and the First Pacific Low Volatility Fund
series (all references to any series of the Corporation will be called the
"Fund" unless expressly noted otherwise) and XXX FINANCIAL SECURITIES, INC.,
a Hawaii corporation, with its principal office located at 0000 Xxxxxxxx
Xxxxx, Xxxxx #0-000, Xxxxxxxx, Xxxxxx (the "Distributor").
WITNESSETH:
In consideration of the mutual covenants and agreements of the parties
hereto, the parties intending to be bound, mutually covenant and agree with
each other as follows:
1. The Corporation, on behalf of each Fund, hereby appoints the
Distributor as agent of each Fund to effect the sale and public distribution
of shares of the capital stock of each Fund. This appointment is made by the
Corporation of each Fund and accepted by the Distributor upon the
understanding that the distribution of shares of each Fund to the public be
effected by the Distributor or through various securities dealers, either
individuals or organizations, but that it shall be done in such a manner that
each Fund shall be under no responsibility or liability to any person
whatsoever on account of the acts and statements of any such individual or
organization. The Distributor shall have the sole right to select the
security dealers to whom shares will be offered by it and, subject to express
provisions of this Agreement, applicable securities laws, the Corporation's
Articles of Incorporation and the By-Laws and the then current Prospectus of
each Fund, to determine the terms and prices in any contract for the sale of
shares to any dealer made by it as such agent for each Fund.
2. The Distributor shall be the exclusive agent for each Fund for
the sale of its shares and each Fund agrees that it will not sell any shares
to any person except to fill orders for the shares received through the
Distributor; provided, however, that the foregoing exclusive right shall not
apply: (a) to shares issued or sold in connection with the merger or
consolidation of any other investment company with each Fund or the
acquisition by purchase or otherwise of all or substantially all of the
assets of any investment company or substantially all of the outstanding
shares of any such company by each Fund; (b) to shares which may be offered
by each Fund to its stockholders for reinvestment of cash distributed from
capital gains of net investment income of each Fund; or (c) to shares which
may be issued to shareholders of other funds who exercise any exchange
privilege set forth in each Fund's Prospectus.
3. The Distributor shall have the right to sell the shares of each
Fund's capital stock to dealers, as needed (making reasonable allowance for
the clerical errors and errors of transmission), but not more than the shares
needed to fill unconditional orders for shares placed with the Distributor by
dealers. In every case, the Distributor shall charge the public offering
price and each Fund shall receive the net asset value for shares sold,
determined as provided in Paragraph 4 hereof. The Distributor shall notify
each Fund at the close of each business day (normally 5:00 pm Eastern
Standard Time), of the number of shares sold during each day.
Notwithstanding the foregoing, each Fund may sell its shares to certain
affiliated persons at net asset value, as described in each Prospectus.
4. (a) The public offering price for each Fund consists of
the net asset value per share.
(b) The net asset value of shares of each Fund shall be
determined by each Fund or each Fund's custodian, or such officer or officers
or other persons the Board of Directors of the Corporation may designate.
The determination shall be made once a day on which the New York Stock
Exchange is open for business and in accordance with the method set out in
the By-Laws of the Corporation and the current Prospectus of the Funds.
5. The Distributor agrees that it will not sell any shares of any
Fund to any officer, director, or partner of either the Distributor or of the
Corporation or any firm or corporation which may be employed by each Fund or
by the Distributor except for investment purposes only and where the
purchaser agrees not to resell the securities to anyone except each Fund.
The Distributor further agrees that it will promptly advise the Secretary of
the Corporation of all sales of shares of each Fund to, or purchase of shares
of each Fund from any such person.
6. The Distributor agrees that it will not for its own account
purchase any shares of each Fund except for investment purposes and that it
will not for its own account sell any such shares excepting only those shares
which it may own at the time of executing this Agreement and any shares
resulting from the reinvestment of dividends paid on those shares, and the
Distributor will not sell other shares except by redemption of such shares by
each Fund.
7. (a) On behalf of each Fund, the Corporation appoints and
designates the Distributor as agents of each Fund and the Distributor accepts
such appointments as such agent, to repurchase shares of each Fund in
accordance with the provisions of the Articles of Incorporation and By-Laws
of the Corporation.
(b) In connection with such redemptions or repurchases, the
Corporation authorizes and designates the Distributor to take any action, to
make any adjustments in net asset value, and to make any arrangements for the
payment of the redemption or repurchase price authorized or permitted to be
taken or made in accordance with the Investment Company Act of 1940, as
amended, and as set forth in the By-Laws and then current Prospectus of the
Funds.
(c) The authority of the Distributor under this Paragraph 7
may, with the consent of the Corporation, be delegated in whole or in part to
another person or firm.
(d) The authority granted in this Paragraph 7 may be
suspended by the Corporation at any time or from time to time pursuant to the
provisions of its Articles of Incorporation until further notice to the
Distributor. The President or any Vice President of the Corporation shall
have the power granted by said provision. After any such suspension the
authority granted to the Distributor by this Paragraph 7 shall be reinstated
only by a written instrument executed on behalf of each Fund by the
Corporation's President or any Vice President.
8. The Corporation agrees that it will cooperate with the
Distributor to prepare, execute and file applications for registration and
qualification of each Fund's shares for sale under the laws of the United
States and the provisions and regulations of the U.S. Securities and Exchange
Commission and under the Securities Acts of such States and in such amounts
as the Corporation may determine, and shall pay registration fees in
connection therewith. The Distributor shall bear all expenses incident to
the sale of shares of each Fund, including without limitation, the cost of
any sales material or literature, the cost of copies of the prospectus used
as sales material (except those being sent to existing shareholders) and the
cost of any reports or proxy material prepared for each Fund's stockholders
to the extent that such material is used in connection with the sale of
shares of each Fund except to the extent that each Fund is obligated to bear
such costs under a distribution plan adopted by each Fund.
9. For its services under this Agreement, the Distributor shall
be entitled to receive the maximum amount of the payment called for under each
Fund's Distribution Plan (the "Plan") adopted pursuant to Rule 12b-1 under
the Investment Company Act of 1940, as amended (the "Rule"). The Distributor
may make payments to others from such amounts in accordance with the Plan or
any agreement in effect under such Plan. The Distributor agrees to comply
with the Rule and the Plan in connection with receipt and disbursement of
funds under the Plan.
10. Notwithstanding anything contained herein to the contrary,
shares of each Fund may be offered for sale at a price, if such reduction or
elimination is authorized by an order of the U.S. Securities and Exchange
Commission, or the Investment Company Act of 1940, as amended, or if the
rules and regulations promulgated thereunder provide for such variation.
Furthermore, such shares may be offered and sold directly by each Fund rather
than by the Distributor as otherwise provided in this Agreement.
11. This Agreement shall continue in effect for a period of more
than two years from its effective date only as long as such continuance is
approved, at least annually, by the Board of Directors of the Corporation,
including a majority of those Directors who are not "interested persons" of
any party to this Agreement, voting in person at a meeting called for the
purpose of voting on such approval. If payments hereunder are made pursuant
to provisions of a plan adopted by each Fund pursuant to the Rule, then
renewals hereof shall also be made in accordance with the requirements of
such Rule. This Agreement may be terminated by either party hereto upon
thirty (30) days written notice to the other party. This Agreement shall
automatically terminate in the event of its assignment by the Distributor (as
the term "assignment" is defined by the Investment Company Act of 1940, as
amended) unless the U.S. Securities and Exchange Commission has issued and
order exempting each Fund and the Distributor from the provisions of the
Investment Company Act of 1940, as amended, which would otherwise have
effected the termination of this Agreement.
12. No Amendment to this Agreement shall be executed or become
effective unless its terms have been approved: (a) by a majority of the
directors of the Corporation or by the vote of a majority of the outstanding
voting securities of each Fund, and (b) by a majority of those Directors who
are not "interested persons" of the Funds or of any party to this Agreement.
13. The Corporation, on behalf of each Fund, and the Distributor
hereby each agree that all literature and publicity issued by either of them
referring directly or indirectly to each Fund or the Distributor shall be
submitted to and receive the approval of the Corporation and the Distributor
before the same may be used by either party.
14. (a) The Distributor agrees to use its best efforts in
effecting the sale and public distribution of the shares of each Fund through
dealers and to perform its duties in redeeming and repurchasing the shares of
each Fund, but nothing contained in this Agreement shall make the Distributor
or any of its officers and directors or shareholders liable for any loss
sustained by each Fund or any of the Corporation's officers, directors or
shareholders, or by any other person on account of any act done or omitted to
be done by the Distributor under this Agreement provided that nothing herein
contained shall protect the Distributor against any liability to each Fund or
to any of its shareholders to which the Distributor would otherwise be
subject by reason of willful misfeasance, bad faith, or gross negligence in
the performance of its duties as Distributor or by reason of its reckless
disregard of its obligations or duties as Distributor under this Agreement.
Nothing in this Agreement shall protect the Distributor from any liabilities
which it may have under the Securities Act of 1933, as amended, or the
Investment Company Act of 1940, as amended.
(b) The Distributor may, from time to time, enter into
agreements with security dealers and other qualified entities in such amounts
as it deems appropriate, provided that such payments are permitted by the
then current distribution plan adopted by each Fund in accordance with the
Rule.
15. As used in this Agreement, the terms "interested person,"
"assignment," and "majority of the outstanding voting securities" shall have
the respective meanings specified in the Investment Company Act of 1940 as
now in effect.
IN WITNESS WHEREOF, FIRST PACIFIC MUTUAL FUND, INC. for the Hawaii
Municipal Fund series and the First Pacific Low Volatility Fund series, and
XXX FINANCIAL SECURITIES, INC. have caused this Agreement to be signed by
their duly authorized officers and their corporate seals to be hereto duly
affixed all on the day and year above written.
FIRST PACIFIC MUTUAL FUND, INC.
By: /s/ Xxxxxxxx X.X. Xxx
=======================
Xxxxxxxx X.X. Xxx, President
[Corporate Seal]
Attest: /s/ Xxxxxx Xxxx Xxx
======================
Xxxxxx Xxxx Xxx, Secretary
XXX FINANCIAL SECURITIES, INC.
By: /s/ Xxxxxxxx X.X. Xxx
=======================
Xxxxxxxx X.X. Xxx, President
[Corporate Seal]
Attest: /s/ Xxxxxx Xxxx Xxx
======================
Xxxxxx Xxxx Xxx, Secretary
