EXHIBIT 23(e)
AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
THIS AGREEMENT made this _____ day of _______ 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: ______________________________________
Xxxxxxxx X.X. Xxx, President
[Corporate Seal]
Attest: ___________________________________
Xxxxxx Xxxx Xxx, Secretary
XXX FINANCIAL SECURITIES, INC.
By: ______________________________________
Xxxxxxxx X.X. Xxx, President
[Corporate Seal]
Attest: ___________________________________
Xxxxxx Xxxx Xxx, Secretary
