ex99167a.htm

This Agreement further amends and restates the Amended and Restated Underwriting Agreement between the parties dated April 23, 2004, since which time you have changed your name from “ASB Securities, LLC” to “FEF Distributors, LLC.” First Eagle Funds (the “Trust”), a Delaware statutory trust currently consisting of the portfolios listed on Schedule A, attached hereto, together with all other portfolios subsequently established and made subject to this Agreement, is engaged in the business of an investment company. Its Board of Trustees has selected you to act as principal underwriter (as such term is defined in Section 2(a)(29) of the Investment Company Act of 1940, as amended (the “1940 Act”)) of the shares of beneficial interest of the Trust and you are willing to act as such principal underwriter and to perform the duties and functions of underwriter in the manner and on the conditions hereinafter set forth. Accordingly, the Trust hereby agrees with you as follows:

2. Registration and Sale of Additional Shares. The Trust will from time to time use its best efforts to register under the 1933 Act such authorized shares of beneficial interest not already so registered as you may reasonably be expected to sell as agent on behalf of the Trust. To the extent that there will be available for sale such number of shares as you may reasonably be expected to sell, the Trust, subject to the necessary approval of its shareholders, will, from time to time as may be necessary, increase the number of authorized shares. This Agreement relates to the issue and sale of shares that are duly authorized and registered and available for sale by the Trust, including repurchased and redeemed shares if and to the extent that they may be legally sold and if, but only if, the Trust sees fit to sell them. You and the Trust will cooperate in taking such action as may be necessary from time to time to qualify shares of the Trust for sale in New York and in any other states mutually agreeable to you and the Trust,

The Trust represents to you that all registration statements and prospectuses filed by the Trust with the SEC under the 1933 Act and under the 1940 Act with respect to the shares have been prepared in conformity with the requirements of said Acts and the rules and regulations of the SEC thereunder. As used in this Agreement, the terms “registration statement” and “prospectus” shall mean any registration statement and prospectus, including the statement of additional information incorporated by reference therein, filed with the SEC and any amendments and supplements thereto which at any time shall have been filed with the SEC. The Trust represents and warrants to you that any registration statement and prospectus, when such registration statement becomes effective, will contain all statements required to be stated therein in conformity with said Acts and the rules and regulations of the SEC; that all statements of fact contained in any such registration statement and prospectus will be true and correct when such registration statement becomes effective; and that neither any registration statement nor any prospectus when such registration statement becomes effective will include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Trust may, but shall not be obligated to, propose from time to time such amendment or amendments to any registration statement and such supplement or supplements to any prospectus as, in the light of future developments, may, in the opinion of the Trust’s counsel, be necessary or advisable. If the Trust shall not propose such amendment or amendments and/or supplement or supplements within fifteen days after receipt by the Trust of a written request from you to do so with respect to a material change, you may, at your option, terminate this Agreement or decline to make offers of the Trust’s securities until such amendments are made. The Trust shall not file any amendment to any registration statement or supplement to any prospectus without giving you reasonable notice thereof in advance; provided, however, that nothing contained in this Agreement shall in any way limit the Trust’s right to file at any time such amendments to any registration statement and/or supplements to any prospectus, of whatever character, as the Trust may deem advisable, such right being in all respects absolute and unconditional.

3. Solicitation of Orders. You will use your best efforts (but only in states in which you may lawfully do so) to obtain from investors orders for shares of beneficial interest of the Trust authorized for issue by the Trust and registered under the 1933 Act, provided that you may in your discretion refuse to accept orders for shares from any particular applicant. You may, as agent for the Trust, solicit dealers for orders to purchase shares of beneficial interest of the Trust and may enter into selling agreements with any such dealers, the form of such agreements to be as mutually agreed upon, from time to time, by you and the Trust. Each dealer must be a member of the Financial Industry Regulatory Authority, Inc. (“FINRA”) or a foreign dealer not eligible for membership in FINRA who has agreed in acting under the selling agreement to abide by the rules and regulations of FINRA and not to use the United States mails or any means of interstate commerce in connection with the sales of such shares unless such foreign dealer is registered under the Securities Exchange Act of 1934, as amended, or such registration is not required.

Whenever in their judgment such action is warranted by unusual market, economic or political conditions, or by abnormal circumstances of any kind deemed by the parties hereto to render sales of the Trust’s shares not in the best interest of the Trust, the parties hereto may decline to accept any orders for, or make any sales of, any shares until such time as those parties deem it advisable to accept such orders and to make such sales, and both parties shall mutually agree to any such determination.

5. Sale of Shares to Investors by the Trust. Any right granted to you to accept orders for shares or make sales on behalf of the Trust will not apply to shares issued in connection with the merger or consolidation of any other investment company with the Trust or its acquisition, by purchase or otherwise, of all or substantially all the assets of any investment company or substantially all the outstanding shares of any such Trust, and such right shall not apply to shares that may be offered by the Trust to shareholders by virtue of their being shareholders of the Trust, including shares issued in payment of any dividend or distribution by the Trust.

6. Public Offering Price. All shares of the Trust sold to investors by you as agent for the Trust will be sold at the public offering price. The public offering price for all accepted orders will be the net asset value per share next computed after receipt of such an order, plus any applicable sales charge adjusted to the nearest full cent, as may from time to time be currently indicated in the Trust’s prospectus with respect to such order. Net asset value per share shall be computed in the manner provided in the Trust’s Declaration of Trust, as now in effect or as it may be amended. The time of receipt of such an order shall be the time of its receipt by you or by a dealer selected by you as provided in paragraph 3 if transmitted on the day of receipt by such dealer to you prior to the close of your business on that day. The Trust will not, without notifying you in advance, change the sales charges or dealer discounts applicable to the sales of its shares from those set forth in its then-current prospectus. You may also purchase as principal shares of the Trust’s beneficial interest at net asset value and sell such shares at the public offering price.

7. Underwriting Discount. The Trust shall receive from you the applicable net asset value on all orders for sales of shares of beneficial interest accepted by you as agent of the Trust if the net sale price thereof has been deemed, in accordance with the Trust’s Declaration of Trust, to be an asset of the Trust in connection with a computation of net asset value for the sale of any other shares or the purchase or redemption of any shares. You shall be entitled to retain so much of the difference between the public offering price and the applicable net asset value as is not reallowed by you as a discount to dealers. Such reallowance shall be the same for all dealers and shall conform to such dealer discounts, if any, as may from time to time be currently indicated in the Trust’s prospectus. You will reimburse the Trust for any increase in any issue tax paid by it which is attributable to such sales charge.

8. Notice of Sale; Delivery of Payments. You will promptly notify the Trust’s transfer agent or shareholders’ servicing agent of any orders for sales of shares of beneficial interest accepted by you, and you will deliver to the Trust’s shareholders’ servicing agent all payments pursuant to orders for sales accepted by you no later than the first business day following the receipt by you in your home office of such payments, and, unless payment is not required under paragraph 7, in no event later than seven days after the receipt by you of such order, or, in case an extension of time is granted by FINRA, to the dealer submitting the order, in no event later than the expiration of such extension of time.

9. Purchase of Shares. You are authorized to purchase as agent on behalf of the Trust shares of beneficial interest of the Trust from record holders thereof. Such purchases may be made by you on behalf of the Trust by accepting orders placed with you by such holders. The purchase price per share for all accepted orders will be the net asset value per share next computed after receipt of such an order, in the manner provided in the Trust’s Declaration of Trust, as now in effect or as it may be amended. The time of receipt of such an order shall be the time of its receipt by you or by a dealer selected by you as provided in paragraph 3 if transmitted on the day of receipt by such dealer to you prior to the close of your business on that day. You will promptly notify the Trust’s transfer agent or shareholders’ servicing agent of any such order accepted by you and will, if the shares subject to such order have been deemed to be no longer outstanding in connection with a computation of net asset value for the sale of any shares by the Trust or the purchase or redemption of any shares by it, deliver to such agent a proper request for purchase of such shares by the Trust and any stock certificates for such shares not later than the first business day following the receipt by you in your home office of such request and certificates, and in no event later than seven days after the receipt by you of such order.

10. Suspension of Sales and Purchases. If and whenever the determination of asset value is suspended pursuant to the Trust’s Declaration of Trust, and such suspension has become effective, until such suspension is terminated, no further orders for the sale or purchase of shares shall be accepted by you except such orders placed with you before you had knowledge of the suspension. In addition, the Trust reserves the right to suspend sales and purchases and your authority to accept orders for sales and purchases of shares on behalf of the Trust if, in the judgment of a majority of its Board of Trustees or a majority of the Executive Committee of its Board of Trustees, if such Committee exists, it is in the best interests of the Trust to do so, such suspension to continue for such period as may be determined by such majority; and in that event, no shares will be sold or purchased by the Trust or by you on behalf of the Trust while such suspension remains in effect except for shares necessary to cover orders accepted by you before you had knowledge of the suspension. The Trust will notify you promptly of any such suspension of the determination of net asset value or of any such suspension of sales and purchases of shares.

11. Expenses. The Trust will pay all fees and expenses in connection with the preparation and filing of any registration statement and prospectus or amendments thereto under the 1933 Act covering the issue and sale of its shares and in connection with the qualification of shares for sale in the various states and countries in which the Trust shall determine it advisable to qualify such shares for sale, the costs of all stock certificates and the fees and expenses of its transfer agent or shareholders’ servicing agent or registrar. It will also pay any issue taxes (subject to partial reimbursement under paragraph 7 hereof). You will pay all expenses of printing prospectuses and other sales literature (except copies of prospectuses and other sales literature which may from time to time be sent to existing shareholders of the Fund), all fees and expenses in connection with your qualification as a dealer in the various states and countries, and all other expenses in connection with the sale and offering for sale of the shares of the Trust which are not payable by the Trust pursuant to the provisions of this paragraph 11.

13. Indemnification. You agree to indemnify and hold harmless the Trust and each of its Trustees and officers and each person, if any, who controls the Trust within the meaning of Section 15 of the 1933 Act against any and all losses, claims, damages, liabilities or litigation expenses (including legal and other expenses) to which the Trust or such Trustees, officers or controlling person may become subject under such Act or under any other statute, at common law or otherwise, arising out of the acquisition of any shares by any person or the sale of any shares by any person to the Trust through you which (i) may be based upon any wrongful act by you or any of your employees or representatives or (ii) may be based upon any untrue statement or alleged untrue statement of a material fact contained in a registration statement or prospectus covering shares of the Trust or any amendment thereof or supplement thereto or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission was made in reliance upon information furnished or confirmed in writing to the Trust by you; provided, however, that in no case is your indemnity in favor of a director or officer or any other person deemed to protect such director or officer or other person against any liability to which any such person would otherwise be subject by reason of willful misfeasance, bad faith, or gross

The Trust agrees to indemnify and hold harmless you and each of your directors and officers and each person, if any, who controls you within the meaning of Section 15 of the 1933 Act against any and all losses, claims, damages, liabilities or litigation expenses (including legal and other expenses) to which you or such directors, officers or controlling person may become subject under such Act or under any other statute, at common law or otherwise, arising out of the acquisition of any shares by any person or the sale of any shares by any person to the Trust through you which (i) may be based upon any wrongful act by the Trust or any of its employees or representatives, or (ii) except as described in clause (ii) of the preceding paragraph, may be based upon any untrue statement or alleged untrue statement of a material fact contained in a registration statement or prospectus covering shares of the Trust or any amendment thereof or supplement thereto or omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that in no case is the Trust’s indemnity in favor of a director or officer or any other person deemed to protect such director or officer or other person against any liability to which any such person would otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence in the performance of his duties or by reason of his reckless disregard of obligations and duties under this Agreement. You hereby waive any rights to indemnification concerning your obligations and duties hereunder to which you might be entitled under the Trust’s By-Laws.

You are not authorized to give any information or to make any representations on behalf of the Trust in connection with the sale or purchase of shares of the Trust other than the information and representations contained in a registration statement or prospectus covering shares of the Trust, as such registration statement and prospectus may be amended or supplemented from time to time. No person other than you is authorized to act as agent for the Trust in connection with the offering or sale of shares of the Trust to the public or otherwise.

14. Duration and Termination of this Agreement. This Agreement shall become effective as of the date hereof and will continue from year to year, but only so long as such continuance is specifically approved at least annually by the Board of Trustees of the Trust or by vote of a majority of the outstanding voting securities of the Trust. In addition, the Trust may not renew or perform this Agreement unless the terms thereof and any renewal thereof have been approved by the vote of a majority of Trustees of the Trust who are not interested persons of you or of the Trust cast in person at a meeting called for the purpose of voting on such approval. This Agreement may, on 60 days’ written notice, be terminated at any time without the payment of any penalty by the Board of Trustees of the Trust, by vote of a majority of the outstanding voting securities of the Trust, or by you. This Agreement shall automatically terminate in the event of its assignment. In interpreting the provisions of this paragraph 14, the definitions contained in Section 2(a) of the 1940 Act and rules thereunder (particularly the definitions of “interested person”, “assignment”, “voting security” and “vote of a majority of the outstanding voting securities”) shall be applied.

the Trust should at any time deem it necessary or advisable in the best interests of the Trust that any amendment of this Agreement be made in order to comply with the recommendations or requirements of the SEC or other governmental authority or to obtain any advantage under state or federal tax laws, it should notify you of the form of such amendment, and the reasons therefor, and if you should decline to assent to such amendment, the Trust may terminate this Agreement forthwith. If you should at any time request that a change be made in the Trust’s Declaration of Trust or By-Laws, or in its methods of doing business, in order to comply with any requirements of federal law or regulations of the SEC or of a national securities association of which you are or may be a member, relating to the sale of the shares of the Trust, and the Trust should not make such necessary change within a reasonable time, you may terminate this Agreement forthwith.

(c) In the event that the Board of Trustees of any additional portfolios indicates by vote that such portfolios are to be made parties to this Agreement, whether such portfolios were in existence at the time of the effective date of this Agreement or subsequently formed, Schedule A hereto shall be amended to reflect the addition of such new portfolios and such new portfolios shall thereafter become parties hereto. In the event that any of the portfolios on Schedule A terminates its registration as a management investment company, or otherwise ceases operations, Schedule A shall be amended to reflect the deletion of such portfolio and its various classes.