As filed with the Securities and Exchange Commission on November 17, 1997
File Nos. 33-12113
811-5028
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-1A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 /X/
Post-Effective Amendment No. 37 /X/
and/or
REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940 /X/
Amendment No. 41 /X/
PIMCO FUNDS
(Exact Name of Registrant as Specified in Charter)
840 Newport Center Drive
Newport Beach, California 92660
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, including area code:
(714) 760-4867
Robert W. Helm, Esq. R. Wesley Burns
Dechert Price & Rhoads Pacific Investment Management Company
1500 K Street, N.W. 840 Newport Center Drive
Washington, D.C. 20005 Newport Beach, California 92660
(Name and Address of Agent for Service)
It is proposed that this filing will become effective (check appropriate
box):
/x/ Immediately upon filing pursuant to paragraph (b)
/ / on (date) pursuant to paragraph (b)
/ / 60 days after filing pursuant to paragraph (a)(1)
/ / on (date) pursuant to paragraph (a)(2) of Rule 485
CALCULATION OF REGISTRATION FEE UNDER THE SECURITIES ACT OF 1933
<TABLE>
<S> <C> <C> <C> <C>
______________________________________________________________________________________________
Proposed Maximum
Title of Number Offering Proposed
Securities of Shares Price per Maximum Amount of
Being Being Share (within Offering Registration
Registered Registered 15 days of filing) Price Fee
______________________________________________________________________________________________
Shares of Indefinite N/A N/A N/A
Beneficial
Interest, Par
Value $.0001
</TABLE>
<PAGE>
EXPLANATORY NOTE
This post-effective amendment no. 37 to the registration statement of PIMCO
Funds on Form N-1A (File No. 33-12113) is being filed solely for the purpose of
filing certain previously-filed exhibits to the registration statement in
electronic format on the EDGAR filing system. The amendment does not affect any
of the currently effective prospectuses or the statement of additional
information describing any series, or class thereof, of the registrant's shares.
The prospectus describing the Institutional and Administrative Class shares, the
prospectus describing the Class A, Class B and Class C shares, and the statement
of additional information are hereby incorporated by reference from the most
recent filing related to the same (File No. 33-12113) under Rule 497 under the
Securities Act of 1933, and the prospectus describing the Class A shares of the
PIMCO Total Return Fund is hereby incorporated by reference from post-effective
amendment no. 36 to the registration statement.
<PAGE>
CROSS-REFERENCE SHEET
REQUIRED BY RULE 495
UNDER THE SECURITIES ACT OF 1933
PART A
Institutional Class and Administrative Class Prospectus
Information Required in Prospectus
Item Number Heading
1 Cover Page
2 Prospectus Summary, Expense Information
3 Financial Highlights
4 Investment Objectives and Policies; Characteristics and
Risks of Securities and Investment Techniques; Other
Information
5 Management of the Trust
5A Not Applicable
6 Dividends, Distributions and Taxes; Other
Information
7 Purchase of Shares; Net Asset Value
8 Redemption of Shares
9 Not Applicable
<PAGE>
PART A
Class A, Class B, and Class C Prospectus
Information Required in Prospectus
Item Number Heading
1 Cover Page
2 Schedule of Fees
3 Financial Highlights
4 Investment Objectives and Policies; Characteristics and
Risks of Securities and Investment Techniques
5 Management of the Trust
5A Not Applicable
6 Distributions; Taxes; Description of the Trust
7 How to Buy Shares; Alternative Purchase Arrangements;
Exchange Privilege; Distributor and Distribution and
Servicing Plans; How Net Asset Value is Determined
8 How to Redeem
9 Not Applicable
<PAGE>
Part A
PIMCO Total Return Fund
Class A Prospectus
Information Required in Prospectus
Item Number Heading
1 Cover Page
2 Schedule of Fees
3 Financial Highlights
4 Investment Objective and Policies;
Characteristics and Risks of Securities
and Investment Techniques
5 Management of the Trust
5A Not Applicable
6 Distributions; Taxes; Description of
the Trust
7 How to Buy Shares; Exchange Privilege;
Distributor and Distribution and
Servicing Plan; How Net Asset Value is Determined
8 How to Redeem
9 Not Applicable
<PAGE>
PART B
Information Required in Statement of Additional Information
Item Number Heading
10 Cover Page
11 Table of Contents
12 Not Applicable
13 Investment Objectives and Policies; Investment Restrictions
14 Trustees and Officers
15 Voting Rights
16 Management of the Trust; Distribution of Trust Shares;
Custodian, Transfer Agent and Dividend Disbursing Agent
17 Portfolio Transactions and Brokerage
18 Other Information
19 Distribution of Trust Shares; Net Asset Value
20 Taxation
21 Distribution of Trust Shares
22 Performance Information
23 Financial Statements
<PAGE>
Part C.
OTHER INFORMATION
Item 24. Financial Statements and Exhibits
(a) Financial statements for the Trust as of March 31, 1997, and for
its fiscal year then ended, including notes thereto, and the
reports of Price Waterhouse LLP thereon, dated May 22, 1997 and
May 27, 1997 are incorporated by reference from the Annual
Report.
(b) Exhibits
(1) (i) Form of Declaration of Trust of Registrant
(ii) Form of Establishment and Designation of Global, Foreign,
Low Duration South Africa Free and Total Return South Africa
Free Portfolios as Series of Registrant
(iii)Form of Establishment and Designation of High Yield, Low
Duration II and Total Return II Portfolios as Series of
Registrant
(iv) Form of Establishment and Designation of Income and Capital
Preservation Portfolio I and Income and Capital Preservation
Portfolio II as Series of Registrant
(v) Form of Amended and Restated Establishment and Designation
of Series of Shares of Registrant
(vi) Form of Amended Designation of Two Series of Registrant
(vii)Form of Second Amended and Restated Establishment and
Designation of Series of Shares of Registrant
(viii) Form of Establishment and Designation of Moderate Duration
and VersaSTYLE Equity Funds as Series of Registrant
(ix) Form of Amended Designation of Two Series of Registrant
(x) Establishment and Designation of StocksPLUS Short Strategy
Fund as Series of Registrant10/
(xi) Redesignation of One Existing Series and Establishment and
Designation of Two New Series of Registrant11/
(xii) Form of Redesignation of One Series of Registrant12/
<PAGE>
(xiii) Establishment and Designation of One Additional Series of
Shares and Amended and Restated Establishment and
Designation of Series of Shares of Registrant16/
(xiv)Amended Designation of Five Existing Series of
Registrant16/
(xv) Establishment and Designation of One Additional Series of
Shares of Registrant16/
(xvi)Form of Establishment and Designation of Four Additional
Series of Shares of Registrant17/
(2) Form of By-laws of Registrant
(3) Not applicable
(4) Not applicable
(5) (i) Form of Investment Advisory Contract
(ii) Form of Supplements to Investment Advisory Contract Relating
to Global, Foreign, Low Duration South Africa Free and Total
Return South Africa Free Portfolios
(iii)Form of Supplements to Investment Advisory Contract
Relating to High Yield, Low Duration II and Total Return II
Portfolios
(iv) Form of Supplements to Investment Advisory Contract Relating
to Income and Capital Preservation Portfolio I and Income
and Capital Preservation Portfolio II
(v) Form of Supplements to Investment Advisory Contract Relating
to Moderate Duration Fund and VersaSTYLE Equity Fund
(vi) Form of Amended Investment Advisory Contract
(vii) Form of Supplement to Investment Advisory Contract
(viii) Form of Supplement to Investment Advisory Contract
Relating to StocksPLUS Short Strategy Fund10/
(ix) Supplements to Investment Advisory Contract11/
<PAGE>
(x) Form of Supplement to Investment Advisory Contract Relating
to Global Bond Fund II16/
(xi) Form of Supplement to Investment Advisory Contract Relating
to Real Return Bond Fund16/
(xii)Form of Supplement to Investment Advisory Contract Relating
to Low Duration Mortgage Fund, Total Return Mortgage Fund,
Emerging Markets Bond Fund, and Emerging Markets Bond Fund
II17/
(6) (i) Distribution Contract1/
(ii) Supplement to Distribution Contract Relating to Global,
Foreign, Low Duration South Africa Free and Total Return
South Africa Free Portfolios2/
(iii)Supplement to Distribution Contract Relating to High Yield,
Low Duration II and Total Return II Portfolios3/
(iv) Supplements to Distribution Contract Relating to Income and
Capital Preservation Portfolio I and Income and Capital
Preservation Portfolio II4/
(v) Form of Distribution Contract as Amended May 31, 19945/
(vi) Form of Supplements to Distribution Contract Relating to
Moderate Duration Fund and VersaSTYLE Equity Fund6/
(vii) Form of Amended Distribution Contract7/
(viii) Form of Supplement to Distribution Contract Relating to
StocksPLUS Short Strategy Fund10/
(ix) Supplements to Distribution Contract11/
(x) Form of Distribution Contract13/
(xi) Form of Supplement to Distribution Contract Relating to Real
Return Bond Fund16/
(xii)Form of Supplement to Distribution Contract Relating to Low
Duration Mortgage Fund, Total Return Mortgage Fund, Emerging
Markets Bond Fund, and Emerging Markets Bond Fund II17/
(7) Not applicable
<PAGE>
(8) Form of Custodian Agreement
(9) (i) Form of Transfer Agency Agreement
(ii) Form of Transfer Agency Agreement with Shareholder Services,
Inc.14/
(10) (i) Opinion of Counsel9/
(ii) Form of Consent of Counsel
(11) Consent of Price Waterhouse LLP
(12) Not applicable
(13) Not applicable
(14) Not applicable
(15) (i) Form of Distribution Plan for Administrative Class Shares
(ii) Administrative Services Contract1/
(iii)Supplements to Administrative Services Contract relating to
Global, Foreign, Low Duration South Africa Free and Total
Return South Africa Free Portfolios2/
(iv) Supplement to Administrative Services Contract Relating to
High Yield, Low Duration II and Total Return II Portfolios3/
(v) Supplements to Administrative Services Contract Relating to
Income and Capital Preservation Portfolio I and Income and
Capital Preservation Portfolio II4/
(vi) Form of Administrative Services Plan for Administrative
Class Shares
(vii)Form of Supplements to Administrative Services Contract
Relating to Moderate Duration Fund and VersaSTYLE Equity
Fund6/
(viii) Form of Amended Administrative Services Contract7/
(ix) Form of Amended Administrative Services Contract8/
(x) Form of Supplement to Administration Agreement Relating to
StocksPLUS Short Strategy Fund11/
<PAGE>
(xi) Supplements to Administration Agreement11/
(xii) Form of Amendment to Administration Agreement13/
(xiii) Form of Amendment to Administration Agreement16/
(xiv)Form of Administration Agreement between PIMCO Advisors
L.P. and Pacific Investment Management Company15/
(xv) Form of Supplement to Administration Agreement Relating to
Low Duration Mortgage Fund, Total Return Mortgage Fund,
Emerging Markets Bond Fund, and Emerging Markets Bond Fund
II17/
(xvi)Form of Distribution and Servicing Plan for Class A
shares13/
(xvii) Form of Distribution and Servicing Plan for Class B
shares13/
(xviii) Form of Distribution and Servicing Plan for Class C
shares13/
(16) Calculation of Performance8/
(17) Financial Data Schedule*
(18) (i) Dual-Class Plan8/
(ii) Amended Dual-Class Plan11/
(iii)Amended and Restated Multi-Class Plan adopted pursuant to
Rule 18f-317/
(19) Powers of Attorney and Secretary's Certificate17/
- --------------------
<TABLE>
<S> <C>
1/ Filed with Pre-Effective Amendment No. 2 on April 21, 1987.
2/ Filed with Post-Effective Amendment No. 8 on August 3, 1990.
3/ Filed with Post-Effective Amendment No. 10 on May 31, 1991.
4/ Filed with Post-Effective Amendment No. 12 on August 29, 1991.
<PAGE>
5/ Filed with Post-Effective Amendment No. 20 on June 1, 1994.
6/ Filed with Post-Effective Amendment No. 21 on August 1, 1994.
7/ Filed with Post-Effective Amendment No. 22 on November 30, 1994.
8/ Filed with Post-Effective Amendment No. 23 on June 1, 1995.
9/ Filed with Registrant's Rule 24f-2 Notice on May 30, 1997.
10/ Filed with Post-Effective Amendment No. 27 on January 16, 1996.
11/ Filed with Post-Effective Amendment No. 28 on April 1, 1996.
12/ Filed with Post-Effective Amendment No. 29 on June 14, 1996.
13/ Filed with Registration Statement on Form N-14 (File No. 333-12871) on September 27, 1996.
14/ Filed with Post Effective Amendment No. 33 to the Registration Statement of PIMCO Advisors Funds (File
No. 2-87203) on November 30, 1995.
15/ Filed with Post Effective Amendment No. 25 to the Registration Statement of PIMCO Funds: Equity Advisors
Series (File No. 33-36528) on January 13, 1997.
16/ Filed with Post Effective Amendment No. 33 on January 13, 1997.
17/ Filed with Post-Effective Amendment No. 37 on July 11, 1997.
* To be filed by post-effective amendment.
</TABLE>
<PAGE>
Item 25. Persons Controlled by or Under Common Control With Registrant
No person is controlled by or under common control with the Registrant.
Item 26. Number of Holders of Securities
As of May 30, 1997, the number of record holders of each Fund and
Class thereof of the Registrant were as follows:
<TABLE>
<S> <C> <C> <C> <C> <C>
Class
Institutional Administrative A B C
Fund
Money Market 215 1 630 127 4,936
Short-Term 118 2 37 19 101
Low Duration 563 11 329 368 3,391
Low Duration II 49 0 0 0 0
Low Duration III 2 0 0 0 0
Moderate Duration 7 0 0 0 0
High Yield 164 5 1,143 3,149 15,492
Total Return 1,289 52 2,550 3,980 21,034
Total Return II 198 8 0 0 0
Total Return III 24 1 0 0 0
Commercial Mortgage
Securities 0 0 0 0 0
Long-Term U.S.
Government 21 0 37 46 54
Real Return Bond 6 0 6 33 19
Foreign Bond 60 1 92 154 250
Global Bond 48 2 0 0 0
Global Bond II 0 0 255 269 404
International Bond 115 0 0 0 0
StocksPLUS 72 2 622 1,306 1,489
StocksPLUS Short Strategy 0 0 0 0 0
Strategic Balanced 5 0 0 0 0
</TABLE>
Item 27. Indemnification
Reference is made to Article IV of the Registrant's Declaration of
Trust, which was filed with the Registrant's initial Registration
Statement.
<PAGE>
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to trustees, officers and
controlling persons of the Registrant by the Registrant pursuant to
the Declaration of Trust or otherwise, the Registrant is aware that in
the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Act and,
therefore, is unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by trustees, officers or
controlling persons of the Registrant in connection with the
successful defense of any act, suit or proceeding) is asserted by such
trustees, officers or controlling persons in connection with the
shares being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such issues.
Item 28. Business and Other Connections of Investment Adviser
PIMCO, the investment adviser to the Trust, is a subsidiary
partnership of PIMCO Advisors L.P. ("PIMCO Advisors"). The general
partner of PIMCO Advisors is PIMCO Partners, G.P., a general
partnership between Pacific Investment Management Company, an indirect
wholly-owned subsidiary of Pacific Life Insurance Company ("Pacific
Life"), and PIMCO Partners LLC, a limited liability company controlled
by the PIMCO Managing Directors.
The directors and officers of PIMCO and their business and other
connections are as follow:
<TABLE>
<S> <C>
Name Business and Other Connections
Allan, George C. Vice President, PIMCO and PIMCO Management,
Inc.
Arnold, Tamara J. Vice President, PIMCO and PIMCO Management,
Inc.
Barbi, Leslie A. Senior Vice President, PIMCO and PIMCO
Management, Inc.
Benz, William R. II Managing Director, PIMCO; Director and
Managing Director, PIMCO Management, Inc.;
Member of PIMCO Partners LLC.
Bishop, Gregory A. Vice President, PIMCO
Brynjolfsson, John B. Vice President, PIMCO and PIMCO Management,
Inc.
Burns, R. Wesley Executive Vice President, PIMCO and PIMCO
Management, Inc.; President of the Trust,
PIMCO Variable Insurance Trust and PIMCO
Commercial Mortgage Securities Trust, Inc.;
Executive Vice President, PIMCO Funds:
Multi-Manager Series; Vice President, Cash
Accumulation Trust.
<PAGE>
Cupps, Wendy W. Vice President, PIMCO and PIMCO Management,
Inc.
Daniels, Charles M. III Executive Vice President, PIMCO and PIMCO
Management, Inc.
Dow, Michael Vice President, PIMCO, PIMCO Management, Inc.
and the Trust
Dunn, Anita Vice President, PIMCO and PIMCO Management,
Inc.
Edington, David H. Managing Director, PIMCO; Director and
Managing Director, PIMCO Management, Inc.;
Director: Stocks Plus Management, Inc.;
Member of PIMCO Partners LLC.
Ehlert, A. Benjamin Executive Vice President, PIMCO and PIMCO
Management, Inc.
Ettl, Robert A. President, PIMCO and PIMCO Management,
Inc.
Faillace, Anthony L. Vice President, PIMCO and PIMCO Management,
Inc.
Fitzgerald, Robert M. Chief Financial Officer and Treasurer, PIMCO,
PIMCO Management, Inc., Cadence Capital
Management, Inc., NFJ Investment Group, NFJ
Management, Inc., Parametric Portfolio
Associates, Parametric Management Inc., and
StocksPLUS Management Inc., PIMCO Funds
Distribution Company; Chief Financial Officer
and Assistant Treasurer, Cadence Capital
Management; Chief Financial Officer and
Treasurer, Columbus Circle Investors and
Columbus Circle Investors Management Inc.;
Chief Financial Officer and Senior Vice
President, PIMCO Advisors; Chief Financial
Officer, Senior Vice President and
Controller, Thomson Advisory Group, Inc.;
Chief Financial Officer, Columbus Circle
Trust Co. Frisch, Ursula T. Vice President,
PIMCO, PIMCO Management and the Trust
Gross, William H. Managing Director, PIMCO; Director and
Managing Director, PIMCO Management, Inc.;
Director and Vice President, StocksPLUS
Management, Inc.; Senior Vice President of
the Trust and PIMCO Variable Insurance Trust;
Member of Equity and Operating Boards, PIMCO
Advisors; Member of PIMCO Partners LLC.
Hague, John L. Managing Director, PIMCO; Director and
Managing Director, PIMCO Management, Inc.;
Member of Operating Board, PIMCO Advisors;
Member of PIMCO Partners LLC.
<PAGE>
Hally, Gordon C. Executive Vice President, PIMCO and PIMCO
Management, Inc.
Hamalainen, Pasi M. Senior Vice President, PIMCO and PIMCO
Management, Inc.
Hardaway, John P. Vice President, PIMCO and PIMCO Management,
Inc.; Treasurer of the Trust and PIMCO
Variable Insurance Trust, PIMCO Funds:
Multi-Manager Series, PIMCO Commercial
Mortgage Securities Trust, Inc., and Cash
Accumulation Trust.
Harris, Brent R. Managing Director, PIMCO; Director and
Managing Director, PIMCO Management, Inc.;
Director and Vice President, StocksPLUS
Management, Inc.; Trustee and Chairman of the
Trust, PIMCO Variable Insurance Trust and
PIMCO Commercial Mortgage Securities Trust,
Inc.; Member of Operating Board, PIMCO
Advisors; Member of PIMCO Partners LLC.
Hattesohl, Joseph D. Vice President, PIMCO and PIMCO Management,
Inc.; Assistant Treasurer, the Trust, PIMCO
Variable Insurance Trust, PIMCO Funds:
Multi-Manager Series and PIMCO Commercial
Mortgage Securities Trust, Inc.
Hayes, Raymond C. Vice President, the Trust, PIMCO and PIMCO
Management, Inc.
Hinman, David C. Vice President, PIMCO and PIMCO Management,
Inc.
Hocson, Liza Vice President, PIMCO and PIMCO Management,
Inc.
Hodge, Douglas M. Executive Vice President, PIMCO and PIMCO
Management, Inc.
Holden, Brent L. Executive Vice President, PIMCO and PIMCO
Management, Inc.
Holloway, Dwight F., Jr. Vice President, PIMCO and PIMCO Management,
Inc.
Howe, Jane T. Vice President, PIMCO and PIMCO Management,
Inc.
Hudoff, Mark Vice President, PIMCO and PIMCO Management,
Inc.
Isberg, Margaret E. Executive Vice President, PIMCO and PIMCO
Management, Inc.; Senior Vice President, the
Trust.
Keller, James M. Vice President, PIMCO and PIMCO Management, Inc.
<PAGE>
Kennedy, Raymond G. Vice President, PIMCO and PIMCO Management,
Inc.
Kociuba, James Vice President, PIMCO and PIMCO Management,
Inc.
Loftus, John S. Executive Vice President, PIMCO and PIMCO
Management, Inc.; Vice President and
Assistant Secretary, StocksPLUS Management,
Inc.
Lown, David Vice President, PIMCO and PIMCO Management,
Inc.
Meiling, Dean S. Managing Director, PIMCO; Director and
Managing Director, PIMCO Management, Inc.;
Vice President, the Trust and PIMCO
Commercial Mortgage Securities Trust, Inc.;
Member of PIMCO Partners, LLC.
Muzzy, James F. Managing Director, PIMCO; Director and
Managing Director, PIMCO Management, Inc.;
Director and Vice President, StocksPLUS
Management, Inc.; Senior Vice President of
PIMCO Variable Insurance Trust; Vice
President, the Trust; Member of Operating
Board, PIMCO Advisors; Member of PIMCO
Partners LLC.
Nguyen, Vinh T. Vice President, Controller, Columbus Circle
Investors, Columbus Circle Investors
Management, Inc., Cadence Capital Management,
Inc., NFJ Management, Inc., Parametric
Management, Inc, StocksPLUS Management, Inc.,
PIMCO Advisors; ; Controller, PIMCO, PIMCO
Management, Inc.
Ongaro, Douglas J. Vice President, the Trust, PIMCO and PIMCO
Management, Inc.
Otterbein, Thomas J. Vice President, PIMCO and PIMCO Management,
Inc.
Pittman, David J. Vice President, PIMCO Management, Inc.
Podlich, William F. III Managing Director, PIMCO; Director and
Managing Director, PIMCO Management, Inc.;
Vice President, PIMCO Commercial Mortgage
Securities Trust, Inc., Member of Equity and
Operating Boards, PIMCO Advisors; Member of
PIMCO Partners LLC.
Powers, William C. Managing Director, PIMCO; Director and
Managing Director, PIMCO Management, Inc.;
Senior Vice President, PIMCO Commercial
Mortgage Securities Trust, Inc., Member of
PIMCO Partners LLC.
<PAGE>
Rabinovitch, Frank B. Managing Director, PIMCO; Director and
Managing Director, PIMCO Management, Inc.;
Member of PIMCO Partners LLC.
Rennie, Edward P. Senior Vice President, PIMCO and PIMCO
Management, Inc.
Roney, Scott L. Vice President, PIMCO and PIMCO Management,
Inc.
Rosborough, Michael J. Senior Vice President, PIMCO and PIMCO
Management, Inc.
Sargent, Jeffrey M. Vice President, PIMCO, PIMCO Management,
Inc., the Trust, PIMCO Variable Insurance
Trust, PIMCO Commercial Mortgage Securities
Trust, Inc. and PIMCO Funds: Multi-Manager
Series.
Schmider, Ernest L. Executive Vice President, Secretary, Chief
Administrative and Legal Officer, PIMCO and
PIMCO Management, Inc.; Secretary, PIMCO
Partners LLC, Director, Assistant Secretary
and Assistant Treasurer, StocksPLUS
Management, Inc.
Scholey, Leland T. Senior Vice President, the Trust, PIMCO and PIMCO
Management, Inc.
Selby, Richard W. Senior Vice President, Chief Technology
Officer, PIMCO
Seliga, Denise C. Vice President, PIMCO and PIMCO Management,
Inc.
Seymour, Rita J. Vice President, PIMCO and PIMCO Management,
Inc.
Thomas, Lee R. Managing Director, PIMCO; Director and
Managing Director, PIMCO Management, Inc.;
Member, PIMCO Partners LLC.
Thompson, William S. Jr. Chief Executive Officer and Managing
Director, PIMCO; Director, Managing Director
and Chief Executive Officer, PIMCO
Management, Inc.; Director and President,
StocksPLUS Management, Inc.; Director,
Thomson Advisory Group; Senior Vice President
of the Trust; Vice President, the Trust and
PIMCO Commercial Mortgage Securities Trust,
Inc.; Member of Equity Board and Operating
Board, PIMCO Advisors; Member, President and
Chief Executive Officer of PIMCO Partners
LLC.
Trosky, Benjamin L. Managing Director, PIMCO; Director and
Managing Director, PIMCO Management, Inc.;
Senior Vice President, PIMCO Commercial
Mortgage Securities Trust, Inc.; Member of
Operating Board, PIMCO Advisors; Member of
PIMCO Partners LLC.
<PAGE>
Weil, Richard M. Assistant Secretary, PIMCO, Columbus Circle
Investors, Columbus Circle Investors
Management, Inc., Cadence Capital Management
and PIMCO Funds Distribution Company; Senior
Vice President and Assistant Secretary, PIMCO
Management, Inc.; Senior Vice President Legal
and Secretary, PIMCO Advisors; Senior Vice
President and Secretary, Thomson Advisory
Group; Secretary, Cadence Capital Management,
Inc., NFJ Management, Inc., Parametric
Management, Inc., NFJ Investment Group,
Parametric Portfolio Associates, and
StocksPLUS Management, Inc.; Vice President,
PIMCO Funds: Multi-Manager Series.
Wegener, Marilyn Vice President, PIMCO and PIMCO Management,
Inc.
Willner, Ram Vice President, PIMCO and PIMCO Management,
Inc.
Wilsey, Kristen M. Vice President, the Trust, PIMCO and PIMCO
Management, Inc.
Wood, George H. Senior Vice President, PIMCO and PIMCO
Management, Inc.
Yetter, Michael A. Vice President, PIMCO and PIMCO Management,
Inc.
Young, David Vice President, PIMCO
</TABLE>
The address of PIMCO is 840 Newport Center Drive, Newport Beach, CA 92260.
The address of PIMCO Advisors, L.P. is 800 Newport Center Drive, Newport Beach,
CA 92660.
The address of PIMCO Funds Distribution Company is 2187 Atlantic Street,
Stamford, CT 06902.
Item 29. Principal Underwriters
(a) PIMCO Advisors Distribution Company (the "Distributor") serves as
Distributor of Shares of the Trust. The Distributor also acts as
the principal underwriter for PIMCO Funds: Multi-Manager Series.
The Distributor is a wholly-owned subsidiary of PIMCO Advisors.
<PAGE>
(b)
<TABLE>
<S> <C> <C>
Name and Principal Positions and Offices Positions and Offices
Business Address* with Underwriter with Registrant
---------------- ---------------- ---------------
Booth, Jeffrey L. Vice President None
Bosch, James D. Regional Vice President None
Brennan, Deborah P. Vice President None
Clark, Timothy R. Senior Vice President None
Cvengros, William D. Director None
Fessel, Jonathan P. Vice President None
Fitzgerald, Robert M. Chief Financial Officer and Treasurer None
Gallagher, Michael J. Vice President None
Goldsmith, David S. Vice President None
Gray, Ronald H. Vice President None
Hussey, John B. Vice President None
Janeczek, Edward W. Senior Vice President None
Jobe, Stephen R. Vice President None
Jones, Jonathan C. Vice President None
Lynch, William E. Senior Vice President None
McCarthy, Jacqueline A. Vice President None
Meyers, Andrew J. Executive Vice President None
Moyer, Fiora N. Regional Vice President None
Neugebauer, Phil J. Vice President None
Nguyen, Vinh T. Vice President, Controller None
<PAGE>
Pearlman, Joffrey H. Regional Vice President None
Pisapia, Glynne P. Regional Vice President None
Russell, Matthew M. Vice President None
Schott, Newton B., Jr. Director, Executive Vice None
President/Secretary, Chief
Administrative/Legal Officer and
Secretary
Smith, Robert M. Vice President None
Spear, Ellen Z. Vice President None
Stone, David P. Regional Vice President None
Sullivan, Daniel W. Vice President None
Thomas, William H., Jr. Regional Vice President None
Treadway, Stephen J. Director, Chairman, President and None
Chief Executive Officer
Troyer, Paul H. Senior Vice President None
Trumbore, Brian F. Executive Vice President None
Weil, Richard M. Assistant Secretary None
Zimmerman, Glen A. Vice President None
</TABLE>
_______________________
*/ The business address of all directors and officers of the Distributor is
either 2187 Atlantic Street, Stamford, CT 06902 or 800 Newport Center Drive,
Newport Beach, CA 92660.
Item 30. Location of Accounts and Records
The account books and other documents required to be maintained by
Registrant pursuant to Section 31(a) of the Investment Company Act of
1940 and the Rules thereunder will be maintained at the offices of
Pacific Investment Management Company, 840 Newport Center Drive,
Newport Beach, California 92660, Investors Fiduciary Trust Company,
127 West 10th Street, Kansas City, Missouri 64105, and Shareholder
Services, Inc., P.O. Box 5866, Denver, Colorado 80217.
<PAGE>
Item 31. Management Services
Not applicable
Item 32. Undertakings
(a) Not applicable.
(b) Registrant undertakes to file a post-effective amendment,
using financial statements which need not be certified, within
four to six months from the latter of the effective date of a
post-effective amendment to Registrant's 1933 Act registration
statement which provides for the addition of a new series of
Registrant or the date on which shares of such series are
first sold (other than shares sold for seed money).
(c) Registrant undertakes to furnish to each person to whom a
prospectus is delivered with a copy of Registrant's latest
annual report to shareholders upon request and without charge.
(d) Registrant undertakes to call a meeting of shareholders for
the purpose of considering the removal of a person serving as
Trustee if requested in writing to do so by the holders of not
less than 10% of the outstanding shares of Registrant.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and the
Investment Company Act of 1940, the Registrant certifies that it meets all of
the requirements for effectiveness of the Registration Statement pursuant to
Rule 485(b) under the Securities Act of 1933 and has duly caused this
Post-Effective Amendment No. 37 to its Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Washington in the District of Columbia on the 17th day of November, 1997.
PIMCO FUNDS
(Registrant)
By: ___________________________________
R. Wesley Burns*
President
*By: /s/ Robert W. Helm
Robert W. Helm, as attorney-in-fact
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
____________________________ Trustee November 17, 1997
Guilford C. Babcock*
____________________________ Trustee November 17, 1997
Thomas P. Kemp*
____________________________ Trustee November 17, 1997
Brent R. Harris*
____________________________ Trustee November 17, 1997
William J. Popejoy*
____________________________ Trustee November 17, 1997
Vern O. Curtis*
<PAGE>
____________________________ President November 17, 1997
R. Wesley Burns* (Principal Executive
Officer)
____________________________ Treasurer November 17, 1997
John P. Hardaway* (Principal Financial
and Accounting
Officer)
*By: /s/ Robert W. Helm
Robert W. Helm,
as attorney-in-fact
* Pursuant to power of attorney filed with Post-Effective Amendment No. 36 to
Registration Statement No. 33-12113 on July 11, 1997.
<PAGE>
PIMCO Funds
INDEX TO EXHIBITS
FILED WITH
POST-EFFECTIVE AMENDMENT NO. 37
EXHIBIT 1(i) Form of Declaration of Trust of Registrant (EDGAR EXHIBIT
99.B1(i))
EXHIBIT 1(ii) Form of Establishment and Designation of Global, Foreign, Low
Duration South Africa Free and Total Return South Africa Free
Portfolios as Series of Registrant (EDGAR EXHIBIT 99.B1(ii))
EXHIBIT 1(iii) Form of Establishment and Designation of High Yield, Low Duration
II and Total Return II Portfolios as Series of Registrant (EDGAR
EXHIBIT 99.B1(iii))
EXHIBIT 1(iv) Form of Establishment and Designation of Income and Capital
Preservation Portfolio I and Income and Capital Preservation
Portfolio II as Series of Registrant (EDGAR EXHIBIT 99.B1(iv))
EXHIBIT 1(v) Form of Amended and Restated Establishment and Designation of
Series of Shares of Registrant (EDGAR EXHIBIT 99.B1(v))
EXHIBIT 1(vi) Form of Amended Designation of Two Series of Registrant (EDGAR
EXHIBIT 99.B1(vi))
EXHIBIT 1(vii) Form of Second Amended and Restated Establishment and Designation
of Series of Shares of Registrant (EDGAR EXHIBIT 99.B1(vii))
EXHIBIT 1(viii)Form of Establishment and Designation of Moderate Duration and
VersaSTYLE Equity Funds as Series of Registrant (EDGAR EXHIBIT
99.B1(viii))
EXHIBIT 1(ix) Form of Amended Designation of Two Series of Registrant (EDGAR
EXHIBIT 99.B1(ix))
EXHIBIT 2 Form of By-laws of Registrant (EDGAR EXHIBIT 99.B2)
EXHIBIT 5(i) Form of Investment Advisory Contract (EDGAR EXHIBIT 99.B5(i))
EXHIBIT 5(ii) Form of Supplements to Investment Advisory Contract Relating to
Global, Foreign, Low Duration South Africa Free and Total Return
South Africa Free Portfolios (EDGAR EXHIBIT 99.B5(ii))
EXHIBIT 5(iii) Form of Supplements to Investment Advisory Contract Relating to
High Yield, Low Duration II and Total Return II Portfolios (EDGAR
EXHIBIT 99.B5(iii))
<PAGE>
EXHIBIT 5(iv) Form of Supplements to Investment Advisory Contract Relating to
Income and Capital Preservation Portfolio I and Income and
Capital Preservation Portfolio II (EDGAR EXHIBIT 99.B5(iv))
EXHIBIT 5(v) Form of Supplements to Investment Advisory Contract Relating to
Moderate Duration Fund and VersaSTYLE Equity Fund (EDGAR EXHIBIT
99.B5(v))
EXHIBIT 5(vi) Form of Amended Investment Advisory Contract (EDGAR EXHIBIT
99.B5(vi))
EXHIBIT 5(vii) Form of Supplement to Investment Advisory Contract (EDGAR EXHIBIT
99.B5(vii))
EXHIBIT 8 Form of Custodian Agreement (EDGAR EXHIBIT 99.B8)
EXHIBIT 9(i) Form of Transfer Agency Agreement (EDGAR EXHIBIT 99.B9(i))
EXHIBIT 10(ii) Form of Consent of Counsel (EDGAR EXHIBIT 99.B10(ii))
EXHIBIT 11 Consent of Price Waterhouse LLP (EDGAR EXHIBIT 99.B11)
EXHIBIT 15(i) Form of Distribution Plan for Administrative Class Shares (EDGAR
EXHIBIT 99.B15(i))
EXHIBIT 15(vi) Form of Administrative Services Plan for Administrative Class
Shares (EDGAR EXHIBIT 99.B15(vi))
PACIFIC INVESTMENT MANAGEMENT INSTITUTIONAL TRUST
DECLARATION OF TRUST
DATED February 19, 1987
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I -- NAME AND DEFINITIONS..................................... 1
Section 1.1 Name................................... 1
Section 1.2 Definitions............................ 2
ARTICLE II -- TRUSTEES................................................ 4
Section 2.1 General Powers..........................4
Section 2.2 Investments.............................5
Section 2.3 Legal Title.............................7
Section 2.4 Issuance and Repurchase of
Securities.................8
Section 2.5 Delegation; Committees..................8
Section 2.6 Collection and Payment..................9
Section 2.7 Expenses................................9
Section 2.8 Manner of Acting; Bylaws................9
Section 2.9 Miscellaneous Powers....................10
Section 2.10 Principal Transactions..................11
Section 2.11 Number of Trustees......................12
Section 2.12 Election and Term.......................12
Section 2.13 Resignation and Removal.................12
Section 2.14 Vacancies...............................13
Section 2.15 Delegation of Power to Other
Trustees...................14
ARTICLE III -- CONTRACTS...............................................14
Section 3.1 Underwriting Contract...................14
Section 3.2 Advisory, Management or
Administrative Contracts...15
Section 3.3 Other Service Contracts.................16
Section 3.4 Affiliations of Trustees or
Officers, Etc..............16
Section 3.5 Compliance with 1940 Act................17
ARTICLE IV -- LIMITATIONS OF LIABILITY OF SHARE-
HOLDERS, TRUSTEES AND OTHERS 17
Section 4.1 No Personal Liability of Share-
holders, Trustees, Etc.....17
Section 4.2 Non-Liability of Trustees, Etc..........18
Section 4.3 Mandatory Indemnification...............19
Section 4.4 No Bond Required of Trustees............22
Section 4.5 No Duty of Investigation; Notice
in Trust Instruments, Etc..22
Section 4.6 Reliance on Experts, Etc................23
<PAGE>
Page
ARTICLE V -- SHARES OF BENEFICIAL INTEREST........................... 24
Section 5.1 Beneficial Interest................... 24
Section 5.2 Rights of Shareholders................ 24
Section 5.3 Trust Only............................ 25
Section 5.4 Issuance of Shares.................... 25
Section 5.5 Register of Shares.................... 26
Section 5.6 Transfer of Shares.................... 26
Section 5.7 Notices............................... 27
Section 5.8 Treasury Shares....................... 27
Section 5.9 Voting Powers......................... 28
Section 5.10 Meetings of Shareholders.............. 29
Section 5.11 Series Designation.................... 29
Section 5.12 Power of Trustees to Change
Provisions Relating to Shares........33
ARTICLE VI -- REDEMPTION AND REPURCHASE OF SHARES.....................35
Section 6.1 Redemption of Shares.................. 35
Section 6.2 Price................................. 36
Section 6.3 Payment............................... 36
Section 6.4 Effect of Suspension of
Determination of Net
Asset Value.............. 36
Section 6.5 Repurchase by Agreement............... 37
Section 6.6 Redemption of Shareholder's
Interest.................. 37
Section 6.7 Redemption of Shares in Order
to Qualify as Regulated
Investment Company;
Disclosure of Holding..... 37
Section 6.8 Reductions in Number of Out-
standing Shares Pursuant
to Net Asset Value Formula.38
Section 6.9 Suspension of Right of Redemption..... 39
ARTICLE VII -- DETERMINATION OF NET ASSET VALUE, NET
INCOME AND DISTRIBUTIONS................. 40
Section 7.1 Net Asset Value....................... 40
Section 7.2 Distributions to Shareholders......... 41
Section 7.3 Determination of Net Income........... 42
Section 7.4 Allocation Between Principal and
Income...................... 44
Section 7.5 Power to Modify Foregoing
Procedures............... 44
<PAGE>
Page
ARTICLE VIII -- DURATION, TERMINATION OF TRUST;
AMENDMENT; MERGERS, ETC................. 44
Section 8.1 Duration.............................. 44
Section 8.2 Termination of Trust or
Series of the Trust...... 44
Section 8.3 Amendment Procedure................... 46
Section 8.4 Merger, Consolidation and Sale
of Assets................ 48
Section 8.5 Incorporation......................... 48
ARTICLE IX -- REPORTS TO SHAREHOLDERS................................ 50
ARTICLE X -- MISCELLANEOUS........................................... 50
Section 10.1 Filing................................ 50
Section 10.2 Governing Law......................... 51
Section 10.3 Counterparts.......................... 51
Section 10.4 Reliance by Third Parties............. 51
Section 10.5 Provisions in Conflict with Law
or Regulations........... 52
<PAGE>
DECLARATION OF TRUST
OF
PACIFIC INVESTMENT MANAGEMENT INSTITUTIONAL TRUST
Dated February 19, 1987
DECLARATION OF TRUST made February 19, 1987 by Stephen E. Cavan (together
with all other persons from time to time duly elected, qualified and serving as
Trustees in accordance with the provisions of Article II hereof, the
"Trustees");
WHEREAS, the Trustees desire to establish a trust for the investment and
reinvestment of funds contributed thereto; and
WHEREAS, the Trustees desire that the beneficial interest in the trust
assets be divided into transferable shares of beneficial interest, as
hereinafter provided;
NOW, THEREFORE, the Trustees declare that all money and property
contributed to the trust established hereunder shall be held and managed in
trust for the benefit of the holders, from time to time, of the shares of
beneficial interest issued hereunder and subject to the provisions hereof.
ARTICLE I
NAME AND DEFINITIONS
Section 1.1. Name. The name of the trust created hereby, until and unless
changed by the Trustees as provided in Section 8.3(a) hereof, is "Pacific
Investment Management Institutional Trust."
Section 1.2. Definitions. Wherever they are used herein, the following
terms have the following respective meanings:
(a) "By-laws" means the By-laws referred to in Section 2.8 hereof, as
from time to time amended.
(b) The terms "Commission" and "Interested Person," have the meanings
given them in the 1940 Act. Except as otherwise defined by the Trustees in
conjunction with the establishment of any series of Shares, the term "vote of a
majority of the Shares outstanding and entitled to vote" shall have the same
meaning as the term "vote of a majority of the outstanding voting securities"
given it in the 1940 Act.
(c) "Custodian" means any Person other than the Trust who has custody
of any Trust Property as required by Section 17(f) of the 1940 Act, but does not
include a system for the central handling of securities described in said
Section 17(f).
(d) "Declaration" means this Declaration of Trust as amended from time
to time. Reference in this Declaration of Trust to "Declaration", "hereof," and
"hereunder" shall be deemed to refer to this Declaration rather than exclusively
to the article or section in which such words appear.
(e) "Distributor" means a party, other than the Trust, to a contract
described in Section 3.1 hereof.
(f) "His" shall include the feminine and neuter, as well as the
masculine genders, and the plural as well as the singular number, in accordance
with the context.
(g) The "1940 Act" means the Investment Company Act of 1940, as
amended from time to time.
(h) "Person" means and includes individuals, corporations,
partnerships, trusts, associations, joint ventures and other entities, whether
or not legal entities, and governments and agencies and political subdivisions
thereof.
<PAGE>
(i) "Shareholder" means a record owner of Outstanding Shares.
(j) "Shares" means the equal proportionate units of interest into
which the beneficial interest in the Trust shall be divided from time to time,
including the Shares of any and all series which may be established by the
Trustees, and includes fractions of Shares as well as whole Shares. "Outstanding
Shares" means those Shares shown from time to time on the books of the Trust or
its Transfer Agent as then issued and outstanding, but shall not include Shares
which have been redeemed or repurchased by the Trust and which are at the time
held in the Treasury of the Trust.
(k) "Transfer Agent" means any Person other than the Trust who
maintains the Shareholder records of the Trust, such as the list of
Shareholders, the number of Shares credited to each account, and the like.
(l) The "Trust" means Pacific Investment Management Institutional
Trust.
(m) The "Trust Property" means any and all property, real or personal,
tangible or intangible, which is owned or held by or for the account of the
Trust, including any series of the Trust, or the Trustees in their capacity as
such.
(n) The "Trustees" means any Person who has signed this Declaration,
so long as he shall continue in office in accordance with the terms hereof, and
any other Person who may from time to time be duly elected, qualified and
serving as Trustees in accordance with the provisions of Article II hereof, and
reference herein to a Trustee or the Trustees shall refer to such Person or
Persons in this capacity or their capacities as Trustees hereunder.
<PAGE>
ARTICLE II
TRUSTEES
Section 2.1. General Powers. The Trustees shall have exclusive and absolute
control over the Trust Property and over the business of the Trust to the same
extent as if the Trustees were the sole owners of the Trust Property and
business in their own right, but with such powers of delegation as may be
permitted, and such obligations and duties as may be prescribed, by this
Declaration. The Trustees shall have power to conduct the business of the Trust
and carry on its operations in any and all of its branches and maintain offices
both within and without the Commonwealth of Massachusetts, in any and all states
of the United States of America, in the District of Columbia, and in any and all
commonwealths, territories, dependencies, colonies, possessions, agencies or
instrumentalities of the United States of America and of foreign governments,
and to do all such other things and execute all such instruments as they may
deem necessary, proper or desirable in order to promote the interests of the
Trust, including such things as may not be herein specifically mentioned. Any
determination as to what is in the interests of the Trust made by the Trustees
in good faith shall be conclusive. In construing the provisions of this
Declaration, the presumption shall be in favor of a grant of power to the
Trustees.
The enumeration of any specific power herein shall not be construed as
limiting the aforesaid power. Such powers of the Trustees may be executed
without order of or resort to any court.
Section 2.2. Investments. The Trustees shall have the power:
(a) To operate as and carry on the business of an open-end, management
investment company, as defined in the 1940 Act, and exercise all the powers
necessary and appropriate to the conduct of such operations.
<PAGE>
(b) To invest in, hold for investment, or reinvest in, securities
(which term "securities" shall include common and preferred stocks; warrants;
bonds, debentures, bills, time notes and all other evidences of indebtedness;
negotiable or non-negotiable instruments; government securities, including
securities of any state, municipality or other political subdivision thereof, or
any government or quasi-governmental agency or instrumentality; and money market
instruments including bank certificates of deposit, finance paper, commercial
paper, bankers' acceptances and all kinds of repurchase agreements, of any
corporation, company, trust, association, firm or other business organization
however established, and of any country, state, municipality or other political
subdivision, or any governmental or quasi-governmental agency or
instrumentality).
(c) To acquire (by purchase, subscription or otherwise), to hold, to
trade in and deal in, to acquire or sell any rights, options, futures contracts
or other instruments to purchase or sell, and to sell or otherwise dispose of,
to lend, and to pledge any securities, property or other assets.
(d) To exercise all rights, powers and privileges of ownership or
interest in all securities and repurchase agreements included in the Trust
Property, including the right to vote thereon and otherwise act with respect
thereto and to do all acts for the preservation, protection, improvement and
enhancement in value of all such securities and repurchase agreements.
(e) To acquire (by purchase, lease or otherwise) and to hold, use,
maintain, develop and dispose of (by sale or otherwise) any property, real or
personal, including cash, and any interest therein.
(f) To borrow money and in this connection issue notes or other
evidence of indebtedness; to secure borrowings by mortgaging, pledging or
otherwise subjecting as security the Trust Property; to endorse, guarantee, or
undertake the performance of any obligation or engagement of any other Person
and to lend Trust Property.
<PAGE>
(g) To aid by further investment any corporation, company, trust,
association or firm, any obligation of or interest in which is included in the
Trust Property or in the affairs of which the Trustees have any direct or
indirect interest; to do all acts and things designed to protect, preserve,
improve or enhance the value of such obligation or interest.
(h) In general to carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything necessary, suitable
or proper for the accomplishment of any purpose or the attainment of any object
or the furtherance of any power hereinbefore set forth, either alone or in
association with others, and to do every other act or thing incidental or
appurtenant to or growing out of or connected with the aforesaid business or
purposes, objects or powers.
The foregoing clauses shall be construed both as objects and powers, and
the foregoing enumeration of specific powers shall not be held to limit or
restrict in any manner the general powers of the Trustees.
The Trustees shall not be limited to investing in obligations maturing
before the possible termination of the Trust, nor shall the Trustees be limited
by any law limiting the investments which may be made by fiduciaries.
Section 2.3. Legal Title. Legal title to all the Trust Property shall be
vested in the Trustees as joint tenants except that the Trustees shall have
power to cause legal title to any Trust Property to be held by or in the name of
one or more of the Trustees, or in the name of the Trust, or in the name of any
other Person as nominee, on such terms as the Trustees may determine, provided
that the interest of the Trust therein is deemed appropriately protected. The
right, title and interest of the Trustees in the Trust Property and the property
of each series of the Trust shall vest automatically in each Person who may
hereafter become a Trustee. Upon the termination of the term of office,
resignation, removal or death of a Trustee he shall automatically cease to have
any right, title or interest in any of the Trust Property and the right, title
and interest of such Trustee in all such property shall vest automatically in
the remaining Trustees. Such vesting and cessation of title shall be effective
whether or not conveying documents have been executed and delivered.
<PAGE>
Section 2.4. Issuance and Repurchase of Securities. The Trustees shall have
the power to issue, sell, repurchase, redeem, retire, cancel, acquire, hold,
resell, reissue, dispose of, transfer, and otherwise deal in Shares and, subject
to the provisions set forth in Articles VI and VII and Section 5.11 hereof, to
apply to any such repurchase, redemption, retirement, cancellation or
acquisition of Shares any funds or property of the particular series of the
Trust with respect to which such Shares are issued, whether capital or surplus
or otherwise, to the full extent now or hereafter permitted by the laws of the
Commonwealth of Massachusetts governing business corporations.
Section 2.5. Delegation; Committees. The Trustees shall have power to
delegate from time to time to such of their number or to officers, employees or
agents of the Trust the doing of such things and the execution of such
instruments either in the name of the Trust or the names of the Trustees or
otherwise as the Trustees may deem expedient, to the same extent as such
delegation is permitted by the 1940 Act.
Section 2.6. Collection and Payment. The Trustees shall have power to
collect all property due to the Trust; to pay all claims, including taxes,
against the Trust Property; to prosecute, defend, compromise or abandon any
claims relating to the Trust Property; to foreclose any security interest
securing any obligations, by virtue of which any property is owed to the Trust;
and, without need for any court order, to enter into releases, agreements and
other instruments.
Section 2.7. Expenses. The Trustees shall have the power to incur and pay
any expenses which in the opinion of the Trustees are necessary or incidental to
carrying out any of the purposes of this Declaration, and to pay reasonable
compensation from the Trust and/or its series to themselves as Trustees. The
Trustees shall fix the compensation of all officers, employees and Trustees.
Section 2.8. Manner of Acting; By-laws. Except as otherwise provided herein
or in the By-laws, any action to be taken by the Trustees may be taken by a
majority of the Trustees present at a meeting of Trustees (a quorum being
present), including any meeting held by means of a conference telephone circuit
or similar communications equipment by means of which all persons participating
in the meeting can hear each other, or by written consents of a majority of the
Trustees then in office. The Trustees may adopt By-laws not inconsistent with
this Declaration to provide for the conduct of the business of the Trust and may
amend or repeal such By-laws to the extent such power is not reserved to the
Shareholders.
Notwithstanding the foregoing provisions of this Section 2.8 and in
addition to such provisions or any other provision of this Declaration or of the
By-laws, the Trustees may by resolution appoint a committee consisting of one or
more Trustees and less than the whole number of Trustees then in office, which
committee may be empowered to act for and bind the Trustees and the Trust, as if
the acts of such committee were the acts of all the Trustees then in office,
with respect to the institution, prosecution, dismissal, settlement, review or
investigation of any action, suit or proceeding which shall be pending or
threatened to be brought before any court, administrative agency or other
adjudicatory body.
<PAGE>
Section 2.9. Miscellaneous Powers. The Trustees shall have the power to:
(a) employ or contract with such Persons as the Trustees may deem desirable for
the transaction of the business of the Trust; (b) enter into joint ventures,
partnerships and any other combinations or associations, to the extent permitted
by law; (c) remove Trustees or fill vacancies in or add to their number, elect
and remove such officers and appoint and terminate such agents or employees as
they consider appropriate, and appoint from their own number, and terminate, any
one or more committees which may exercise some or all of the power and authority
of the Trustees as the Trustees may determine; (d) to the extent permitted by
law, purchase, and pay for out of Trust Property, insurance policies insuring
the Shareholders, Trustees, officers, employees, agents, investment advisers,
administrators, distributors, selected dealers or independent contractors of the
Trust against all claims arising by reason of holding any such position or by
reason of any action taken or omitted by any such Person in such capacity; (e)
establish pension, profit-sharing, Share purchase, and other
retirement,incentive and benefit plans for any Trustees, officers, employees and
agents of the Trust; (f) to the extent permitted by law, indemnify any person
with whom the Trust has dealings, including persons referred to in subparagraph
(d), above, to such extent as the Trustees shall determine; (g) determine and
change the fiscal year of the Trust and the method by which its accounts shall
be kept; and (h) adopt a seal for the Trust, but the absence of such seal shall
not impair the validity of any instrument executed on behalf of the Trust.
Section 2.10. Principal Transactions. Except in transactions not permitted
by the 1940 Act or rules and regulations adopted by the Commission, the Trustees
may, on behalf of the Trust, buy any securities from or sell any securities to,
or lend any assets of the Trust to, any Trustee or officer of the Trust or any
firm of which any such Trustee or officer is a member acting as principal, or
have any such dealings with persons acting as investment adviser, administrator,
Distributor or Transfer Agent or with any Interested Person of such Person; and
the Trust may employ any such Person, or firm or company in which such Person is
an Interested Person, as broker, legal counsel, registrar, Transfer Agent,
di<PAGE>
Section 2.11. Number of Trustees. The number of Trustees shall initially be
one (1), and thereafter shall be such number as shall be fixed from time to time
by a written instrument signed by a majority of the Trustees, provided, however,
that the number of Trustees shall in no event be less than one (1) nor more than
fifteen (15).
Section 2.12. Election and Term. Except for the Trustees named herein,
designated by such Trustees prior to the issuance of Shares, or appointed to
fill vacancies pursuant to Section 2.14 hereof, the Trustees shall be elected by
the Shareholders owning of record a plurality of the Shares voting at a meeting
of Shareholders called for that purpose. Except in the event of resignation or
removal pursuant to Section 2.13 hereof, each Trustee shall hold office until
the next such meeting of Shareholders and until his successor is duly elected
and qualified.
Section 2.13. Resignation and Removal. Any Trustee may resign his trust
(without need for prior or subsequent accounting) by an instrument in writing
signed by him and delivered to the other Trustees and such resignation shall be
effective upon such delivery, or at a later date according to the terms of the
instrument. Any of the Trustees may be removed (i) with cause, by the action of
two-thirds of the remaining Trustees (provided the aggregate number of Trustees
after such removal shall not be less than three) or (ii) by vote of holders of
two-thirds of the outstanding Shares of the Trust, either by declaration in
writing or at a meeting called for such purpose. A meeting for the purpose of
considering the removal of a person serving as Trustee shall be called by the
Trustees if requested in writing to do so by holders of not less than 10% of the
outstanding Shares of the Trust. Upon the resignation or removal of a Trustee,
or his otherwise ceasing to be a Trustee, he shall execute and deliver such
documents as the remaining Trustees shall require for the purpose of conveying
to the Trust or the remaining Trustees any Trust Property held in the name of
the resigning or removed Trustee. Upon the incapacity or death of any Trustee,
his legal representative shall execute and deliver on his behalf such documents
as the remaining Trustee shall require as provided in the preceding sentence.
<PAGE>
Section 2.14. Vacancies. The term of office of a Trustee shall terminate
and a vacancy shall occur in the event of the death, resignation, removal,
bankruptcy, adjudicated incompetence or other incapacity to perform the duties
of the office of a Trustee. No such vacancy shall operate to annul the
Declaration or to revoke any existing vacancy, including a vacancy existing by
reason of an increase in the number of Trustees. Subject to the provisions of
Section 16(a) of the 1940 Act, the remaining Trustees shall fill such vacancy by
the appointment of such other person as they in their discretion shall see fit,
made by a written instrument signed by a majority of the Trustees then in
office. Any such appointment shall not become effective, however, until the
person named in the written instrument of appointment shall have accepted in
writing such appointment and agreed in writing to be bound by the terms of the
Declaration. An appointment of a Trustee may be made in anticipation of a
vacancy to occur at a later date by reason of retirement, resignation or
increase in the number of Trustees, provided that such appointment shall not
become effective prior to such retirement, resignation or increase in the number
of Trustees. Whenever a vacancy in the number of Trustees shall occur, until
such vacancy is filled as provided in this Section 2.14, the Trustees in office,
regardless of their number, shall have all the powers granted to the Trustees
and shall discharge all the duties imposed upon the Trustees by the Declaration.
A written instrument certifying the existence of such vacancy signed by a
majority of the Trustees in office shall be conclusive evidence of the existence
of such vacancy.
Section 2.15. Delegation of Power to Other Trustees. Any Trustee may, by
power of attorney, delegate his power for a period not exceeding six (6) months
at any one time to any other Trustee or Trustees; provided that in no case shall
less than two (2) Trustees personally exercise the powers granted to the
Trustees under this Declaration, except as herein otherwise expressly provided.
ARTICLE III
CONTRACTS
Section 3.1. Underwriting Contract. The Trustees may in their discretion
from time to time enter into an exclusive or non-exclusive underwriting contract
or contracts providing for the sale of the Shares to net the Trust not less than
the amount provided for in Section 7.1 of Article VII hereof, whereby the
Trustees may either agree to sell the Shares to the other party to the contract
or appoint such other party their sales agent for the Shares, and in either case
on such terms and conditions as may be prescribed in the By-laws, if any, and
such further terms and conditions as the Trustees may in their discretion
determine not inconsistent with the provisions of this Article III or of the
By-laws; and such contract may also provide for the repurchase of the Shares by
such other party as agent of the Trustees.
Section 3.2. Advisory, Management or Administrative Contracts. The Trustees
may in their discretion from time to time enter into one or more investment
advisory, management or administrative contracts whereby the other party(ies) to
such contract(s) shall undertake to furnish to the Trust or to one or more of
its series such management, investment advisory, administrative, statistical and
research facilities and services and such other facilities and services, if any,
and all upon such terms and conditions as the Trustees may in their discretion
determine, including the grant of authority to such other party to recommend or
to determine what securities shall be purchased or sold by the Trust or a series
and what portion of assets shall be uninvested, which authority shall include
the power to make changes in investments, and to recommend or to select the
brokers or dealers to be used for such transactions.
<PAGE>
Section 3.3. Other Service Contracts. The Trustees are also empowered, at
any time and from time to time, to contract with any corporations, trusts,
associations, or other organizations, appointing it or them the Business
Manager, Custodian(s), Transfer Agent(s) and/or shareholder servicing agent(s)
and/or other agents for the Trust or one or more of the series. Every such
contract shall comply with such requirements and restrictions as may be set
forth in the By-laws or stipulated by resolution of the Trustees.
Section 3.4. Affiliations of Trustees or Officers, Etc. The fact that:
(i) any of the Shareholders, Trustees or officers of the Trust
is a shareholder, director, officer, partner, trustee,
employee, manager, adviser or distributor of or for any
partnership, corporation, trust, association or other
organization or of or for any parent or affiliate of any
organization, with which a contract of the character
described in Sections 3.1, 3.2 or 3.3 above may have been or
may hereafter be made, or that any such organization, or any
parent or affiliate thereof, is a Shareholder of or has an
interest in the Trust, or that
(ii) any partnership, corporation, trust, association or other
organization with which a contract of the character
described in Sections 3.1, 3.2 or 3.3 above may have been or
may hereafter be made also has any one or more of such
contracts with one or more other partnerships, corporations,
trusts, associations or other organizations, or has other
businesses or interests, shall not affect the validity of
any such contract or disqualify any Shareholder, Trustee or
officer of the Trust from voting upon or executing the same
or create any liability or accountability to the Trust or
its Shareholders.
Section 3.5. Compliance with 1940 Act. Any contract entered into by the
Trust shall be consistent with applicable requirements of the 1940 Act or other
applicable law.
<PAGE>
ARTICLE IV
LIMITATIONS OF LIABILITY OF SHAREHOLDERS,
TRUSTEES AND OTHERS
Section 4.1. No Personal Liability of Shareholders, Trustees, Etc. No
Shareholder shall be subject to any personal liability whatsoever to any Person
in connection with Trust Property or the acts, obligations or affairs of the
Trust. No Trustee, officer, employee or agent of the Trust shall be subject to
any personal liability whatsoever to any Person, other than to the Trust or its
Shareholders, in connection with Trust Property or the affairs of the Trust,
save only that arising from bad faith, willful misfeasance, gross negligence or
reckless disregard of his duties with respect to such Person; and all such
Persons shall look solely to the Trust Property for satisfaction of claims of
any nature arising in connection with the affairs of the Trust. If any
Shareholder, Trustee, officer, employee, or agent, as such, of the Trust is made
a party to any suit or proceeding to enforce any such liability of the Trust, he
shall not, on account thereof, be held to any personal liability. The Trust
shall indemnify and hold each Shareholder harmless from and against all claims
and liabilities, to which such Shareholder may become subject by reason of his
being or having been a Shareholder, and shall reimburse such Shareholder for all
legal and other expenses reasonably incurred by him in connection with any such
claim or liability, provided that any such expenses shall be paid solely out of
the funds and property of the series of the Trust with respect to which such
Shareholder's Shares are issued. The rights accruing to a Shareholder under this
Section 4.1 shall not exclude any other right to which such Shareholder may be
lawfully entitled, nor shall anything herein contained restrict the right of the
Trust to indemnify or reimburse a Shareholder in any appropriate situation even
though not specifically provided for herein.
<PAGE>
Section 4.2. Non-Liability of Trustees, Etc. No Trustee, officer, employee
or agent of the Trust shall be liable to the Trust, its Shareholders, or to any
Shareholder, Trustee, officer, employee, agent or service provider thereof for
any action or failure to act by him (her) or any other such Trustee, officer,
employee, agent or service provider (including without limitation the failure to
compel in any way any former or acting Trustee to redress any breach of trust)
except for his own bad faith, willful misfeasance, gross negligence or reckless
disregard of the duties involved in the conduct of his office. The term "service
provider," as used in this Section 4.2, shall include any investment adviser,
principal underwriter, transfer agent or other person with whom the Trust has an
agreement for provision of services.
Section 4.3. Mandatory Indemnification.
(a) Subject to the exceptions and limitations contained in paragraph (b)
below:
(i) every person who is, or has been, a Trustee or officer of
the Trust shall be indemnified by the Trust to the fullest
extent permitted by law against all liability and against
all expenses reasonably incurred or paid by him in
connection with any claim, action, suit or proceeding in
which he becomes involved as a party or otherwise by virtue
of his being or having been a Trustee or officer and against
amounts paid or incurred by him in the settlement thereof;
(ii) the words "claim", "action", "suit", or "proceeding"
shall apply to all claims, actions, suits or proceedings
(civil, criminal, or other, including appeals), actual or
threatened; and the words "liability" and "expenses" shall
include, without limitation, attorneys' fees, costs,
judgments, amounts paid in settlement, fines, penalties and
other liabilities.
<PAGE>
(b) No indemnification shall be provided hereunder to a Trustee or officer:
(i) against any liability to the Trust or the Shareholders by
reason of a final adjudication by the court or other body
before which the proceeding was brought that he engaged in
willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his
office;
(ii) with respect to any matter as to which he shall have been
finally adjudicated not to have acted in good faith in the
reasonable belief that his action was in the best interest
of the Trust;
(iii)in the event of a settlement or other disposition not
involving a final adjudication as provided in paragraph
(b)(i) resulting in a payment by a Trustee or officer,
unless there has been a determination that such Trustee or
officer did not engage in willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties
involved in the conduct of his office:
(a) by the court or other body approving the settlement or
other disposition; or
(b) based upon a review of readily available facts (as
opposed to a full trial-type inquiry) by (1) vote of a
majority of the Disinterested Trustees acting on the
matter (provided that a majority of the Disinterested
Trustees then in office act on the matter) or (2)
written opinion of independent legal counsel.
<PAGE>
(c) To the extent permitted by law, the rights of
indemnification herein provided may be insured against
by policies maintained by the Trust, shall be
severable, shall not affect any other rights to which
any Trustee or officer may now or hereafter be
entitled, shall continue as to a person who has ceased
to be such Trustee or officer and shall inure to the
benefit of the heirs, executors, administrators and
assigns of such a person. Nothing contained herein
shall affect any rights to indemnification to which
personnel of the Trust other than Trustees and officers
may be entitled by contract or otherwise under law.
(d) Expenses of preparation and presentation of a defense
to any claim, action, suit or proceeding of the
character described in paragraph (a) of this Section
4.3 may be advanced by the Trust prior to final
disposition thereof upon receipt of an undertaking by
or on behalf of the recipient to repay such amount if
it is ultimately determined that he is not entitled to
indemnification under this Section 4.3, provided that
either:
(i) such undertaking is secured by a surety bond or some other
appropriate security provided by the recipient, or the Trust
shall be insured against losses arising out of any such advances;
or
(ii) a majority of the Disinterested Trustees acting on the matter
(provided that a majority of the Disinterested Trustees act on
the matter) or an independent legal counsel in a written opinion
shall determine, based upon a review of readily available facts
(as opposed to a full trial-type inquiry), that there is reason
to believe that the recipient ultimately will be found entitled
to indemnification.
As used in this Section 4.3, a "Disinterested Trustee" is one who is not
(i) an "Interested Person" of the Trust (including anyone who has been exempted
from being an "Interested Person" by any rule, regulation or order of the
Commission), or (ii) involved in the claim, action, suit or proceeding.
Section 4.4. No Bond Required of Trustees. No Trustee shall be obligated to
give any bond or other security for the performance of any of his duties
hereunder.
<PAGE>
Section 4.5. No Duty of Investigation; Notice in Trust Instruments, Etc. No
purchaser, lender, transfer agent or other Person dealing with the Trustees or
any officer, employee or agent of the Trust shall be bound to make any inquiry
concerning the validity of any transaction purporting to be made by the Trustees
or by said officer, employee or agent or be liable for the application of money
or property paid, loaned, or delivered to or on the order of the Trustees or of
said officer, employee or agent. Every obligation, contract, instrument,
certificate, Share, other security of the Trust or undertaking, and every other
act or thing whatsoever executed in connection with the Trust shall be
conclusively presumed to have been executed or done by the executors thereof
only in their capacity as Trustees under this Declaration or in their capacity
as officers, employees or agents of the Trust. Every written obligation,
contract, instrument, certificate, Share, other security of the Trust or
undertaking made or issued by the Trustees may recite that the same is executed
or made by them not individually, but as Trustees under the Declaration, and
that the obligations of the Trust under any such instrument are not binding upon
any of the Trustees or Shareholders individually, but bind only the estate of
the Trust or series, as applicable, and may contain any further recital which
they or he may deem appropriate, but the omission of such recital shall not
operate to bind the Trustees individually. The Trustees may maintain insurance
for the protection of the Trust Property, its Shareholders, Trustees, officers,
employees and agents in such amount as the Trustees shall deem adequate to cover
possible tort liability, and such other insurance as the Trustees in their sole
judgment shall deem advisable.
Section 4.6. Reliance on Experts, Etc. Each Trustee and officer or employee
of the Trust shall, in the performance of his duties, be fully and completely
justified and protected with regard to any act or any failure to act resulting
from reliance in good faith upon the books of account or other records of the
Trust, upon an opinion of counsel, or upon reports made to the Trust by any of
its officers or employees or by the Investment Adviser, the Distributor,
Transfer Agent, selected dealers, accountants, appraisers or other experts or
consultants selected with reasonable care by the Trustees, officers or employees
of the Trust, regardless of whether such counsel or expert may also be a
Trustee.
<PAGE>
ARTICLE V
SHARES OF BENEFICIAL INTEREST
Section 5.1. Beneficial Interest. The interest of the beneficiaries
hereunder shall be divided into transferable Shares of beneficial interest of
$0.001 par value per share. All Shares shall be of one class, except as provided
in Section 5.11 hereof. The number of shares of beneficial interest authorized
hereunder is unlimited. All Shares issued hereunder including, without
limitation, Shares issued in connection with a dividend in Shares or a split of
Shares, shall be fully paid and non-assessable.
Section 5.2. Rights of Shareholders. The ownership of the Trust Property
and the property of each series of the Trust of every description and the right
to conduct any business hereinbefore described are vested exclusively in the
Trustees, and the Shareholders shall have no interest therein other than the
beneficial interest conferred by their Shares, and they shall have no right to
call for any partition or division of any property, profits, rights or interests
of the Trust nor can they be called upon to share or assume any losses of the
Trust or suffer an assessment of any kind by virtue of their ownership of
Shares. The Shares shall be personal property giving only the rights in this
Declaration specifically set forth. The Shares shall not entitle the holder to
preference, preemptive, appraisal, conversion or exchange rights, except as the
Trustees may determine with respect to any series of Shares.
Section 5.3. Trust Only. It is the intention of the Trustees to create only
the relationship of trustee and beneficiary between the Trustees and each
Shareholder from time to time. It is not the intention of the Trustees to create
a general partnership, limited partnership, joint stock association,
corporation, bailment or any form of legal relationship other than a trust.
Nothing in this Declaration of Trust shall be construed to make the
Shareholders, either by themselves or with the Trustees, partners or members of
a joint stock association.
Section 5.4. Issuance of Shares. The Trustees in their discretion may, from
time to time without vote of the Shareholders, issue Shares, in addition to the
then issued and outstanding Shares and Shares held in the treasury, to such
party or parties and for such amount and type of consideration, including cash
or property, at such time or times and on such terms as the Trustees may deem
best, and may in such manner acquire other assets (including the acquisition of
assets subject to, and in connection with the assumption of liabilities) and
businesses. In connection with any issuance of Shares, the Trustees may issue
fractional Shares and Shares held in the treasury, and Shares may be issued in
separate series as provided in Section 5.11 hereof. The Trustees may from time
to time divide or combine the Shares into a greater or lesser number without
thereby changing the proportionate beneficial interests in the Trust or any
series. Contributions to the Trust may be accepted for, and Shares shall be
redeemed as, whole Shares and/or 1/1,000ths of a Share or integral multiples
thereof. The Trustees, the Distributor or any other person the Trustees may
authorize for the purpose may, in their discretion, reject any application for
the issuance of Shares.
<PAGE>
Section 5.5. Register of Shares. A register shall be kept at the principal
office of the Trust or an office of the Transfer Agent which shall contain the
names and addresses of the Shareholders and the number of Shares held by them
respectively and a record of all transfers thereof. Such register shall be
conclusive as to who are the holders of the Shares and who shall be entitled to
receive dividends or distributions or otherwise to exercise or enjoy the rights
of Shareholders. No Shareholder shall be entitled to receive payment of any
dividend or distribution, nor to have notice given to him as herein or in the
By-laws provided, until he has given his address to the Transfer Agent or such
other officer or agent of the Trustees as shall keep the said register for entry
thereon. It is not contemplated that certificates will be issued for the Shares;
however, the Trustees, in their discretion, may authorize the issuance of share
certificates and promulgate appropriate rules and regulations as to their use.
Section 5.6. Transfer of Shares. Shares shall be transferable on the
records of the Trust only by the record holder thereof or by his agent thereunto
duly authorized in writing, upon delivery to the Trustees or the Transfer Agent
of a duly executed instrument of transfer, together with such evidence of the
genuineness of each such execution and authorization and of other matters as may
reasonably be required. Upon such delivery the transfer shall be recorded on the
register of the Trust. Until such record is made, the Shareholder of record
shall be deemed to be the holder of such Shares for all purposes hereunder and
neither the Trustees nor any Transfer Agent or registrar nor any officer,
employee or agent of the Trust shall be affected by any notice of the proposed
transfer.
Any Person becoming entitled to any Shares in consequence of the death,
bankruptcy, or incompetence of any Shareholder, or otherwise by operation of
law, shall be recorded on the register of Shares as the holder of such Shares
upon production of the proper evidence thereof to the Trustees or the Transfer
Agent, but until such record is made, the Shareholder of record shall be deemed
to be the holder of such Shares for all purposes hereunder and neither the
Trustees nor any Transfer Agent or registrar nor any officer or agent of the
Trust shall be affected by any notice of such death, bankruptcy or incompetence,
or other operation of law.
<PAGE>
Section 5.7. Notices. Any and all notices to which any Shareholder may be
entitled and any and all communications shall be deemed duly served or given if
mailed, postage prepaid, addressed to any Shareholder of record at his last
known address as recorded on the register of the Trust.
Section 5.8. Treasury Shares. Shares held in the treasury shall, until
reissued pursuant to Section 5.4, not confer any voting rights on the Trustees,
nor shall such Shares be entitled to any dividends or other distributions
declared with respect to the Shares.
Section 5.9. Voting Powers. The Shareholders shall have power to vote only
(i) for the election of Trustees as provided in Section 2.12; (ii) with respect
to any investment advisory or investment management contract entered into
pursuant to Section 3.2; (iii) with respect to termination of the Trust as
provided in Section 8.2; (iv) with respect to any amendment of this Declaration
to the extent and as provided in Section 8.3; (v) with respect to any merger,
consolidation or sale of assets as provided in Section 8.4; (vi) with respect to
incorporation of the Trust to the extent and as provided in Section 8.5; (vii)
to the same extent as the stockholders of a Massachusetts business corporation
as to whether or not a court action, proceeding or claim should or should not be
brought or maintained derivatively or as a class action on behalf of the Trust
or the Shareholders; and (viii) with respect to such additional matters relating
to the Trust as may be required by this Declaration, the By-laws or any
registration of the Trust as an investment company under the 1940 Act with the
Commission (or any successor agency) or as the Trustees may consider necessary
or desirable. Each whole Share shall be entitled to one vote as to any matter on
which it is entitled to vote and each fractional Share shall be entitled to a
proportionate fractional vote, except that the Trustees may, in conjunction with
the establishment of any series of Shares, establish conditions under which the
several series shall have separate voting rights or no voting rights. There
shall be no cumulative voting in the election of Trustees. Until Shares are
issued, the Trustees may exercise all rights of Shareholders and may take any
action required by law, this Declaration or the By-laws to be taken by
Shareholders. The By-laws may include further provisions for Shareholders' votes
and meetings and related matters.
<PAGE>
Section 5.10. Meetings of Shareholders. A meeting of the Shareholders shall
be held at such times, on such day and at such hour as the Trustees may from
time to time determine, either at the principal office of the Trust, or at such
other place as may be designated by the Trustees, for the purposes specified in
Section 2.12 or 2.13 and for such other purposes as may be specified by the
Trustees.
Section 5.11. Series Designation. The Trustees, in their discretion, may
authorize the division of Shares into two or more series, and the different
series shall be established and designated, and the variations in the relative
rights and preferences as between the different series shall be fixed and
determined, by the Trustees; provided, that all Shares shall be identical except
for such variations as shall be fixed and determined by the Trustees and set
forth in the Trust's then current registration statement, and the reasonable
consequences of such variations. All references to Shares in this Declaration
shall be deemed to be Shares of any or all series as the context may require.
If the Trustees shall divide the Shares of the Trust into two or more
series, the following provisions shall be applicable:
(a) All provisions herein relating to the Trust shall apply equally to
each series of the Trust except as the context requires otherwise.
(b) The number of authorized Shares and the number of Shares of each
series that may be issued shall be unlimited. The Trustees may classify or
reclassify any unissued Shares or any Shares previously issued and reacquired of
any series into one or more series that may be established and designated from
time to time. The Trustees may hold as treasury shares (of the same or some
other series), reissue for such consideration and on such terms as they may
determine, or cancel any Shares of any series reacquired by the Trust at their
discretion from time to time.
(c) All consideration received by the Trust for the issue or sale of
Shares of a particular series, together with all assets in which such
consideration is invested or reinvested, all income, earnings, profits, and
proceeds thereof, including any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, shall
irrevocably belong to that series for all purposes, subject only to the rights
of creditors of such series and except as may otherwise be required by
applicable tax laws, and shall be so recorded upon the books of account of the
Trust. In the event that there are any assets, income, earnings, profits, and
proceeds thereof, funds, or payments which are not readily identifiable as
belonging to any particular series, the Trustees shall allocate them among any
one or more of the series established and designated from time to time in such
manner and on such basis as they, in their sole discretion, deem fair and
equitable. Each such allocation by the Trustees shall be conclusive and binding
upon all persons for all purposes.
<PAGE>
(d) The assets belonging to each particular series shall be charged
with the liabilities of the Trust in respect of that series and all expenses,
costs, charges and reserves attributable to that series, and any general
liabilities, expenses, costs, charges or reserves of the Trust which are not
readily identifiable as belonging to any particular series shall be allocated
and charged by the Trustees to and among any one or more of the series
established and designated from time to time in such manner and on such basis as
the Trustees in their sole discretion deem fair and equitable and no series
shall be liable to any person except for its allocated share. Each allocation of
liabilities, expenses, costs, charges and reserves by the Trustees shall be
conclusive and binding upon all persons for all purposes. The Trustees shall
have full discretion, to the extent not inconsistent with the 1940 Act, to
determine which items are capital; and each such determination and allocation
shall be conclusive and binding upon all persons. All persons extending credit
to, or contracting with or having any claim against a particular series of the
Trust shall look only to the assets of that particular series for payment of
such credit, contract or claim.
(e) Each Share of a series of the Trust shall represent a beneficial
interest in the net assets of such series. Each holder of Shares of a series
shall be entitled to receive his pro rata share of distributions of income and
capital gains made with respect to such series. Upon redemption of his Shares or
indemnification for liabilities incurred by reason of his being or having been a
Shareholder of a series, such Shareholder shall be paid solely out of the funds
and property of such series of the Trust. Upon liquidation or termination of a
series of the Trust, Shareholders of such series shall be entitled to receive a
pro rata share of the net assets of such series. A Shareholder of a particular
series of the Trust shall not be entitled to participate in a derivative or
class action on behalf of any other series or the Shareholders of any other
series of the Trust.
<PAGE>
(f) Notwithstanding any other provision hereof, on any matter
submitted to a vote of Shareholders of the Trust, all Shares then entitled to
vote shall be voted in the aggregate, except that (1) when required by the 1940
Act, Shares shall be voted by individual series and not in the aggregate, and
(2) when the Trustees have determined that the matter affects only the interests
of Shareholders of a limited number of series, then only the Shareholders of
such series shall be entitled to vote thereon.
The establishment and designation of any series of Shares shall be
effective upon the execution by a majority of the Trustees of an instrument
setting forth such establishment and designation and the relative rights and
preferences of such series, or as otherwise provided in such instrument. At any
time that there are no Shares outstanding of any particular series previously
established and designated, the Trustees may by an instrument executed by a
majority of their number abolish that series and the establishment and
designation thereof. Each instrument referred to in this paragraph shall have
the status of an amendment to this Declaration.
Section 5.12. Power of Trustees to Change Provisions Relating to Shares.
Notwithstanding any other provision of this Declaration of Trust and without
limiting the power of the Trustees to amend the Declaration of Trust as provided
elsewhere herein, the Trustees shall have the power to amend this Declaration of
Trust, at any time and from time to time, in such manner as the Trustees may
determine in their sole discretion, without the need for Shareholder action, so
as to add to, delete, replace or otherwise modify any provisions relating to the
Shares contained in this Declaration of Trust, provided that before adopting any
such amendment without Shareholder approval the Trustees shall determine that it
is consistent with the fair and equitable treatment of all Shareholders or that
Shareholder approval is not otherwise required by the 1940 Act or other
applicable law.
Without limiting the generality of the foregoing, the Trustees may, for the
above-stated purposes, amend the Declaration of Trust to:
(a) create one or more Series of Shares (in addition to any Series
already existing or otherwise) with such rights and preferences and such
eligibility requirements for investment therein as the Trustees shall determine
and reclassify any or all outstanding Shares as shares of particular Series in
accordance with such eligibility requirements;
(b) amend any of the provisions set forth in Section 5.11 of this
Article V;
<PAGE>
(c) combine one or more Series of Shares into a single Series on such
terms and conditions as the Trustees shall determine;
(d) change or eliminate any eligibility requirements for investment in
Shares of any Series, including without limitation, to provide for the issue of
Shares of any Series in connection with any merger or consolidation of the Trust
with another Trust or company or any acquisition by the Trust of part or all of
the assets of another trust or investment company;
(e) change the designation of any Series of Shares;
(f) change the method of allocating dividends among the various Series
of Shares;
(g) allocate any specific assets or liabilities of the Trust or any
specific items of income or expense of the Trust to one or more Series of
Shares;
(h) specifically allocate assets to any or all Series of Shares or
create one or more additional Series of Shares which are preferred over all
other Series of Shares in respect of assets specifically allocated thereto or
any dividends paid by the Trust with respect to any net income, however
determined, earned from the investment and reinvestment of any assets so
allocated or otherwise and provide for any special voting or other rights with
respect to such Series.
<PAGE>
ARTICLE VI
REDEMPTION AND REPURCHASE OF SHARES
Section 6.1. Redemption of Shares. All Shares of the Trust shall be
redeemable at the redemption price determined in the manner set out in this
Declaration. Redeemed or repurchased Shares may be resold by the Trust.
The Trust shall redeem the Shares at the price determined as hereinafter
set forth, upon the appropriately verified written application of the record
holder thereof (or upon such other form of request as the Trustees may
determine) at such office or agency as may be designated from time to time for
that purpose by the Trustees. The Trustees may from time to time specify
additional conditions, not inconsistent with the 1940 Act, regarding the
redemption of Shares in the Trust's then effective registration statement or
prospectus under the Securities Act of 1933.
Section 6.2. Price. Shares will be redeemed at their net asset value
determined as set forth in Section 7.1 hereof as of such time as the Trustees
shall have theretofore prescribed by resolution. In the absence of such
resolution, the redemption price of Shares deposited shall be the net asset
value of such Shares next determined as set forth in Section 7.1 hereof after
receipt of such application.
Section 6.3. Payment. Payment for such Shares shall be made in cash or in
property out of the assets of the relevant series of the Trust to the
Shareholder of record at such time and in the manner, not inconsistent with the
1940 Act or other applicable laws, as may be specified from time to time in the
Trust's then effective registration statement or prospectus under the Securities
Act of 1933, subject to the provisions of Section 6.4 hereof.
Section 6.4. Effect of Suspension of Determination of Net Asset Value. If,
pursuant to Section 6.9 hereof, the Trustees shall declare a suspension of the
determination of net asset value, the rights of Shareholders (including those
who shall have applied for redemption pursuant to Section 6.1 hereof but who
shall not yet have received payment) to have Shares redeemed and paid for by the
Trust shall be suspended until the termination of such suspension is declared.
Any record holder who shall have his redemption right so suspended may, during
the period of such suspension, by appropriate written notice of revocation at
the office or agency where application was made, revoke any application for
redemption not honored and withdraw any certificates on deposit. The redemption
price of Shares for which redemption applications have not been revoked shall be
the net asset value of such Shares next determined as set forth in Section 7.1
after the termination of such suspension, and payment shall be made within seven
(7) days after the date upon which the application was made plus the period
after such application during which the determination of net asset value was
suspended.
<PAGE>
Section 6.5. Repurchase by Agreement. The Trust may repurchase
Shares directly, or through the Distributor or another agent designated for the
purpose, by agreement with the owner thereof at a price not exceeding the net
asset value per share determined as of the time when the purchase or contract of
purchase is made or the net asset value as of any time which may be later
determined pursuant to Section 7.1 hereof, provided payment is not made for the
Shares prior to the time as of which such net asset value is determined.
Section 6.6. Redemption of Shareholder's Interest. The Trust shall have the
right at any time to redeem Shares of any Shareholder for their then current net
asset value per Share if at such time the aggregate purchase price of the Shares
owned by the Shareholder is less than $10,000, subject to such terms and
conditions as the Trustees may approve.
Section 6.7. Redemption of Shares in Order to Qualify as Regulated
Investment Company; Disclosure of Holding. If the Trustees shall, at any time
and in good faith, be of the opinion that direct or indirect ownership of Shares
or other securities of the Trust has or may become concentrated in any Person to
an extent which would disqualify any series of the Trust as a regulated
investment company under the Internal Revenue Code, then the Trustees shall have
the power by lot or other means deemed equitable by them (i) to call for
redemption by any such Person of a number, or principal amount, of Shares or
other securities of the Trust sufficient to maintain or bring the direct or
indirect ownership of Shares or other securities of the Trust into conformity
with the requirements for such qualification and (ii) to refuse to transfer or
issue Shares or other securities of the Trust to any Person whose acquisition of
the Shares or other securities of the Trust in question would result in such
disqualification. The redemption shall be effected at the redemption price and
in the manner provided in Section 6.1.
The holders of Shares of the Trust shall upon demand disclose to the
Trustees in writing such information with respect to direct and indirect
ownership of Shares of the Trust as the Trustees may deem necessary to comply
with the provisions of the Internal Revenue Code, or to comply with the
requirements of any other taxing authority.
Section 6.8. Reductions in Number of Outstanding Shares Pursuant to Net
Asset Value Formula. The Trust may also reduce the number of outstanding Shares
pursuant to the provisions of Section 7.3.
Section 6.9. Suspension of Right of Redemption. The Trustees may adopt
procedures under which the Trust may declare a suspension of the right of
redemption or postpone the date of payment or redemption for the whole or any
part of any period (i) during which the New York Stock Exchange is closed other
than customary weekend and holiday closings, (ii) during which trading on the
New York Stock Exchange is restricted, (iii) during which an emergency exists as
a result of which disposal by the Trust of securities owned by it is not
reasonably practicable or it is not reasonably practicable for the Trust fairly
to determine the value of its net assets, or (iv) during any other period when
the Commission may for the protection of security holders of the Trust by order
permit suspension of the right of redemption or postponement of the date of
payment or redemption; provided that applicable rules and regulations of the
Commission shall govern as to whether the conditions prescribed in (ii), (iii),
or (iv) exist. To the extent permitted by the Commission, (i) and (ii) above may
be expanded to include other securities exchanges. Such suspension shall take
effect at such time as the Trust shall specify and there shall be no right of
redemption or payment on redemption until the Trust shall declare the suspension
at an end.
<PAGE>
ARTICLE VII
DETERMINATION OF NET ASSET VALUE,
NET INCOME AND DISTRIBUTIONS
Section 7.1. Net Asset Value. The value of the assets of any series of the
Trust shall be determinedby appraisal of the securities allocated to such
series, such appraisal to be on the basis of the market value of such securities
or, consistent with the rules and regulations of the Commission, by such other
method as shall be deemed to reflect the fair value thereof, determined in good
faith by or under the direction of the Trustees. Money market instruments with
remaining maturities of less than sixty days shall be valued on an amortized
cost basis. From the total value of said assets, there shall be deducted all
indebtedness, interest, taxes, payable or accrued, including estimated taxes on
unrealized book profits, expenses and management charges accrued to the
appraisal date, net income determined and declared as a distribution and all
other items in the nature of liabilities attributable to such series which shall
be deemed appropriate. The resulting amount which shall represent the total net
assets of the series shall be divided by the number of Shares of such series
outstanding at the time and the quotient so obtained shall be deemed to be the
net asset value of the Shares of such series (which may be rounded to the
nearest whole cent). The net asset value of the Shares shall be determined at
least once daily on such days and in accordance with the requirements provided
for in applicable rules of the Commission, at such time or times as the Trustees
shall determine. The power and duty to make the daily calculations may be
delegated by the Trustees to the Investment Adviser, the Custodian, the
Administrator, the Transfer Agent or such other Person as the Trustees may
determine. The Trustees may suspend the daily determination of net asset value
to the extent permitted by the 1940 Act.
<PAGE>
Section 7.2. Distributions to Shareholders. The Trustees shall from time to
time distribute ratably among the Shareholders of a series such proportion of
the net profits, surplus (including paid-in surplus), capital, or assets of such
series held by the Trustees as they may deem proper. Such distributions may be
made in cash or property (including without limitation any type of obligations
of such series or any assets thereof), and the Trustees may distribute ratably
among the Shareholders additional Shares of such series issuable hereunder in
such manner, at such times, and on such terms as the Trustees may deem proper.
Such distributions may be among the Shareholders of record at the time of
declaring a distribution or among the Shareholders of record at such other date
or time or dates or times as the Trustees shall determine. The Trustees may in
their discretion determine that, solely for the purposes of such distributions,
Outstanding Shares shall exclude Shares for which orders have been placed
subsequent to a specified time on the date the distribution is declared or on
the next preceding day if the distribution is declared as of a day on which the
Transfer Agent for the Trust or applicable series is not open for business. The
Trustees may always retain from the net profits such amount as they may deem
necessary to pay the debts or expenses of the series or to meet obligations of
the series, or as they may deem desirable to use in the conduct of its affairs
or to retain for future requirements or extensions of the business. The Trustees
may adopt and offer to Shareholders such dividend reinvestment plans, cash
dividend payout plans or related plans as the Trustees shall deem appropriate.
Inasmuch as the computation of net income and gains for Federal income tax
purposes may vary from the computation thereof on the books, the above
provisions shall be interpreted to give the Trustees the power in their
discretion to distribute for any fiscal year as ordinary dividends and as
capital gains distributions, respectively, additional or lesser amounts
sufficient to enable the Trust or the series to avoid or reduce liability for
taxes.
<PAGE>
Section 7.3. Determination of Net Income. The net income of any series may
consist of (i) all dividend and interest income accrued on portfolio assets of
the series, less (ii) all actual and accrued liabilities determined in
accordance with generally accepted accounting principles and plus or minus (iii)
net realized or net unrealized gains and losses on the assets of the series.
Interest income may include discount earned (including both original issue and
market discount) on discount paper accrued ratably to the date of maturity or
determined in such other manner as the Trustees may determine. Expenses of the
series, including the advisory or management fee, shall be accrued each day.
Such net income may be determined by or under the direction of the Trustees as
of such time or times as the Trustees shall determine, and all the net income of
the series, so determined, may be declared as a dividend on the Outstanding
Shares of such series. If, for any reason, the net income of the series
determined at any time is a negative amount, the Trustees shall have the power
(i) to offset each Shareholder's pro rata share of such negative amount from the
accrued dividend account of such Shareholder, or (ii) to reduce the number of
Outstanding Shares of the series by reducing the number of Shares in the account
of such Shareholder by that number of full and fractional Shares which
represents the amount of such excess negative net income, or (iii) to cause to
be recorded on the books of the series an asset account in the amount of such
negative net income, which account may be reduced by the amount, provided that
the same shall thereupon become the property of the series and shall not be paid
to any Shareholder, of dividends declared thereafter upon the Outstanding Shares
on the day such negative net income is experienced, until such asset account is
reduced to zero; or (iv) to combine the methods described in clauses (i) and
(ii) and (iii) of this sentence, in order to cause the net asset value per Share
of the series to remain at a constant amount per Outstanding Share immediately
after each such determination and declaration. The Trustees shall also have the
power to omit to declare a dividend out of net income for the purpose of causing
the net asset value per Share of the series to be increased to a constant
amount. The Trustees shall not be required to adopt, but may at any time adopt,
discontinue or amend a practice of maintaining the net asset value per Share of
a series at a constant amount, in accordance with applicable rules under the
1940 Act.
<PAGE>
Section 7.4. Allocation Between Principal and Income. The Trustees shall
have full discretion to determine whether any cash or property received shall be
treated as income or as principal and whether any item of expense shall be
charged to the income or the principal account, and their determination made in
good faith shall be conclusive. In the case of stock dividends received, the
Trustees shall have full discretion to determine, in the light of the particular
circumstances, how much if any of the value thereof shall be treated as income,
the balance, if any, to be treated as principal.
Section 7.5. Power to Modify Foregoing Procedures. Notwithstanding any of
the foregoing provisions of this Article VII, the Trustees may prescribe, in
their absolute discretion, such other bases and times for determining the per
Share net asset value of the series' Shares or net income, or the declaration
and payment of dividends and distributions as they may deem necessary or
desirable.
ARTICLE VIII
DURATION; TERMINATION OF TRUST;
AMENDMENT; MERGERS, ETC.
Section 8.1. Duration. The Trust or any series of the Trust shall continue
without limitation of time but subject to the provisions of this Article VIII.
Section 8.2. Termination of Trust or Series of the Trust. (a) The Trust or
any series of the Trust may be terminated by the affirmative vote of the holders
of not less than two-thirds of the Shares outstanding and entitled to vote, at
any meeting of Shareholders or by an instrument in writing, without a meeting,
signed by a majority of the Trustees and consented to by the holders of not less
than two-thirds of such Shares, or by such other vote as may be established by
the Trustees with respect to any series of Shares. Upon the termination of the
Trust or any series of the Trust,
(i) The Trust or the series of the Trust shall carry on no business
except for the purpose of winding up its affairs.
(ii) The Trustees shall proceed to wind up the affairs of the Trust or
the series of the Trust and all of the powers of the Trustees
under this Declaration shall continue until the affairs of the
Trust or the series of the Trust shall have been wound up,
including the power to fulfill or discharge the contracts of the
Trustees on behalf of the Trust or any series of the Trust,
collect its assets, sell, convey, assign, exchange, transfer or
otherwise dispose of all or any part of the remaining Trust
Property or property of the series of the Trust to one or more
persons at public or private sale for consideration which may
consist in whole or in part of cash, securities or other property
of any kind, discharge or pay its liabilities, and do all other
acts appropriate to liquidate its business; provided that any
sale, conveyance, assignment, exchange, transfer or other
disposition of all or substantially all the Trust Property or
property of the series of the Trust shall require Shareholder
approval in accordance with Section 8.4 hereof.
(iii)After paying or adequately providing for the payment of all
liabilities, and upon receipt of such releases, indemnities and
refunding agreements as they deem necessary for their protection,
the Trustees may distribute the remaining Trust Property, in cash
or in kind or partly each, among the Shareholders according to
their respective rights.
(b) After termination of the Trust or any series of the
Trust and distribution to the Shareholders as herein
provided, a majority of the Trustees shall execute and
lodge among the records of the Trust or the series of
the Trust an instrument in writing setting forth the
fact of such termination, and the Trustees shall
thereupon be discharged from all further liabilities
and duties hereunder, and the rights and interests of
all Shareholders shall thereupon cease.
<PAGE>
Section 8.3. Amendment Procedure. (a) This Declaration may be amended by a
vote of the holders of a majority of the Shares outstanding and entitled to vote
or by any instrument in writing, without a meeting, signed by a majority of the
Trustees and consented to by the holders of a majority of the Shares outstanding
and entitled to vote. The Trustees may also amend this Declaration without the
vote or consent of Shareholders to change the name of the Trust, to supply any
omission, to cure, correct or supplement any ambiguous, defective or
inconsistent provision hereof, or if they deem it necessary to conform this
Declaration to the requirements of applicable federal laws or regulations or the
requirements of the regulated investment company provisions of the Internal
Revenue Code, but the Trustees shall not be liable for failing so to do.
(b) No amendment may be made under this Section 8.3 which would
change any rights with respect to any Shares of the Trust by
reducing the amount payable thereon upon liquidation of the Trust
or by diminishing or eliminating any voting rights pertaining
thereto, except with the vote or consent of the holders of
two-thirds of the Shares outstanding and entitled to vote, or by
such other vote as may be established by the Trustees with
respect to any series of Shares. Nothing contained in this
Declaration shall permit the amendment of this Declaration to
impair the exemption from personal liability of the Shareholders,
Trustees, officers, employees and agents of the Trust or to
permit assessments upon Shareholders.
(c) A certificate signed by a majority of the Trustees setting forth
an amendment and reciting that it was duly adopted by the
Shareholders or by the Trustees as aforesaid or a copy of the
Declaration, as amended, and executed by a majority of the
Trustees, shall be conclusive evidence of such amendment when
lodged among the records of the Trust.
Notwithstanding any other provision hereof, until such time as a
Registration Statement under the Securities Act of 1933, as amended, covering
the first public offering of securities of the Trust shall become effective,
this Declaration may be terminated or amended in any respect by the affirmative
vote of a majority of the Trustees or by an instrument signed by a majority of
the Trustees.
Section 8.4. Merger, Consolidation and Sale of Assets. The Trust may with
respect to the Trust or with respect to any Series of the Trust merge or
consolidate with any other corporation, association, trust or other organization
or may sell, lease or exchange all or substantially all of the Trust Property,
including its good will, upon such terms and conditions and for such
consideration when and as authorized at any meeting of Shareholders called for
the purpose by the affirmative vote of the holders of two-thirds of the Shares
outstanding and entitled to vote, or by an instrument or instruments in writing
without a meeting, consented to by the holders of two-thirds of the Shares or by
such other vote as may be established by the Trustees with respect to any series
of Shares; provided, however, that, if such merger, consolidation, sale, lease
or exchange is recommended by the Trustees, the vote or written consent of the
holders of a majority of the Shares outstanding and entitled to vote, or such
other vote or written consent as may be established by the Trustees with respect
to any series of Shares, shall be sufficient authorization; and any such merger,
consolidation, sale, lease or exchange shall be deemed for all purposes to have
been accomplished under and pursuant to the statutes of the Commonwealth of
Massachusetts.
<PAGE>
Section 8.5. Incorporation. With the approval of the holders of a majority
of the Shares outstanding and entitled to vote, or by such other vote as may be
established by the Trustees with respect to any series of Shares, the Trustees
may cause to be organized or assist in organizing a corporation or corporations
under the laws of any jurisdiction or any other trust, partnership, association
or other organization to take over all of the Trust Property or to carry on any
business in which the Trust shall directly or indirectly have any interest, and
to sell, convey and transfer the Trust Property to any such corporation, trust,
association or organization in exchange for the Shares or securities thereof or
otherwise, and to lend money to, subscribe for the Shares or securities of, and
enter into any contracts with any such corporation, trust, partnership,
association or organization, or any corporation, partnership, trust, association
or organization in which the Trust holds or is about to acquire shares or any
other interest. The Trustees may also cause a merger or consolidation between
the Trust or any successor thereto and any such corporation, trust, partnership,
association or other organization if and to the extent permitted by law, as
provided under the law then in effect. Nothing contained herein shall be
construed as requiring approval of Shareholders for the Trustees to organize or
assist in organizing one or more corporations, trusts, partnerships,
associations or other organizations and selling, conveying or transferring a
portion of the Trust Property for valueto such organizations or entities.
ARTICLE IX
REPORTS TO SHAREHOLDERS
The Trustees shall at least semiannually submit to the Shareholders a
written financial report, which may be included in the Trust's prospectus, of
the transactions of the Trust, including financial statements which shall at
least annually be certified by independent public accountants.
<PAGE>
ARTICLE X
MISCELLANEOUS
Section 10.1. Filing. This Declaration and any amendment hereto shall be
filed in the office of the Secretary of the Commonwealth of Massachusetts and in
such other places as may be required under the laws of Massachusetts and may
also be filed or recorded in such other places as the Trustees deem appropriate.
Each amendment so filed shall be accompanied by a certificate signed and
acknowledged by a Trustee stating that such action was duly taken in a manner
provided herein, and unless such amendment or such certificate sets forth some
later time for the effectiveness of such amendment, such amendment shall be
effective upon its filing. A restated Declaration, integrating into a single
instrument all of the provisions of the Declaration which are then in effect and
operative, may be executed from time to time by a majority of the Trustees and
shall, upon filing with the Secretary of the Commonwealth of Massachusetts, be
conclusive evidence of all amendments contained therein and may hereafter be
referred to in lieu of the original Declaration and the various amendments
thereto.
Section 10.2. Governing Law. This Declaration is executed by the Trustees
and delivered in the Commonwealth of Massachusetts and with reference to the
laws thereof, and the rights of all parties and the validity and construction of
every provision hereof shall be subject to and construed according to the laws
of said State.
Section 10.3. Counterparts. This Declaration may be simultaneously executed
in several counterparts, each of which shall be deemed to be an original, and
such counterparts, together, shall constitute one and the same instrument, which
shall be sufficiently evidenced by any such original counterpart.
Section 10.4. Reliance by Third Parties. Any certificate executed by an
individual who, according to the records of the Trust appears to be a Trustee
hereunder, certifying to: (a) the number or identity of Trustees or
Shareholders, (b) the due authorization of the execution of any instrument or
writing, (c) the form of any vote passed at a meeting of Trustees or
Shareholders, (d) the fact that the number of Trustees or Shareholders present
at any meeting or executing any written instrument satisfies the requirements of
this Declaration, (e) the form of any By-laws adopted by or the identity of any
officers elected by the Trustees, or (f) the existence of any fact or facts
which in any manner relate to the affairs of the Trust, shall be conclusive
evidence as to the matters so certified in favor of any Person entitled to rely
upon such certificates in dealing with the Trustees and their successors.
Section 10.5. Provisions in Conflict with Law or Regulations. (a) The
provisions of this Declaration are severable, and if the Trustees shall
determine, with the advice of counsel, that any of such provisions is in
conflict with the 1940 Act, the Internal Revenue Code or with other applicable
laws and regulations, the conflicting provision shall be deemed never to have
constituted a part of this Declaration; provided, however, that such
determination shall not affect any of the remaining provisions of this
Declaration or render invalid or improper any action taken or omitted prior to
such determination.
(b) If any provision of this Declaration shall be held invalid or
unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such
jurisdiction and shall not in any manner affect such provisions
in any other jurisdiction or any other provision of this
Declaration in any jurisdiction.
IN WITNESS WHEREOF, the undersigned has executed this instrument this day
of February, 1987.
________________________
Stephen E. Cavan
<PAGE>
On this _____ day of February, in the year 1987, before me,
___________________, a notary public, personally appeared Stephen E. Cavan (or
proved to me on the basis of satisfactory evidence) to be the person whose name
is subscribed to this instrument, and acknowledged that he executed it.
_______________________
Notary Public
SEAL
My commission expires:
Pacific Investment Management Institutional Trust
Establishment and Designation of Four
Additional Series of Shares of Beneficial Interest,
Par Value $0.0001 Per Share
RESOLVED, that pursuant to Section 5.11(f) of the Declaration of Trust of
Pacific Investment Management Institutional Trust (the "Fund") dated February
19, 1987, ("Declaration"), the shares of beneficial interest of the Trust shall
be divided into four additional separate Series (the "Portfolios");
FURTHER RESOLVED, that the Portfolios shall have the following special and
relative rights:
1. The Portfolios shall be designated the "Global Portfolio," the "Foreign
Portfolio," the "Low Duration Divestiture Portfolio," and the "Total Return
Divestiture Portfolio."
2. The Portfolios shall be authorized to invest in cash, securities,
instruments and other property as from time to time described in the Fund's then
currently effective prospectuses and registration statement under the Securities
Act of 1933. Each share of beneficial interest of the Portfolios ("Share") shall
be redeemable, shall be entitled to one vote (or fraction thereof in respect of
a fractional Share) on matters on which Shares of the Portfolios shall be
entitled to vote, shall represent a pro rata beneficial interest in the assets
allocated to the Portfolios, and shall be entitled to receive its pro rata share
of net assets of the Portfolios upon liquidation of the Portfolios, all as
provided in the Declaration.
3. Shareholders of each Series (including the Portfolios) shall vote
separately as a class on any matter, except, consistent with the Investment
Company Act of 1940, as amended ("the Act"), and the rules and the Fund's
registration statement thereunder, with respect to (i) the election of Trustees,
(ii) any amendment of the Declaration of Trust, unless the amendment affects
fewer than all classes of shares, in which case only shareholders of the
affected classes shall vote, and (iii) ratification of the selection of
auditors. In each case of separate voting, the Trustees shall determine whether,
for the matter to be effectively acted upon within the meaning of Rule 18f-2
under the Act (or any successor rule) as to a Series, the applicable percentage
(as specified in the Declaration of Trust, or the Act and the rules thereunder)
of the shares of that Series alone must be voted in favor of the matter, or
whether the favorable vote of such applicable percentage of the shares of each
Series entitled to vote on the matter is required.
<PAGE>
4. The assets and liabilities of the Fund shall be allocated among the
Series of the Fund as set forth in Section 5.11 of the Declaration, except that
only the preexisting Series shall bear their allocable portion of the remaining
unamortized costs incurred and payable by the Fund in connection with their
organization and registration; costs of establishing the Portfolios and of the
registration and public offering of their Shares shall be amortized for such
Portfolios over the period beginning on the date such costs become payable and
ending sixty months thereafter.
5. The Trustees shall have the right at any time and from time to time to
reallocate assets and expenses or to change the designation of the Portfolios
hereby created, or to otherwise change the special and relative rights of such
Portfolios, provided that such change shall not adversely affect the rights of
the Shareholders of such Portfolios.
IN WITNESS WHEREOF, the undersigned have executed this instrument the ____
day of ___________, 1990.
____________________________
____________________________
____________________________
____________________________
Pacific Investment Management Institutional Trust
Establishment and Designation of Three
Additional Series of Shares of Beneficial Interest,
Par Value $0.0001 Per Share
RESOLVED, that pursuant to Section 5.11(f) of the Declaration of Trust of
Pacific Investment Management Institutional Trust (the "Fund") dated February
19, 1987, ("Declaration"), the shares of beneficial interest of the Trust shall
be divided into three additional separate Series (the "Portfolios");
FURTHER RESOLVED, that the Portfolios shall have the following special and
relative rights:
1. The Portfolios shall be designated the "Total Return II Portfolio," the
"Low Duration II Portfolio," and the "High Yield Portfolio."
2. The Portfolios shall be authorized to invest in cash, securities,
instruments and other property as from time to time described in the Fund's then
currently effective prospectuses and registration statement under the Securities
Act of 1933. Each share of beneficial interest of the Portfolios ("Share") shall
be redeemable, shall be entitled to one vote (or fraction thereof in respect of
a fractional Share) on matters on which Shares of the Portfolios shall be
entitled to vote, shall represent a pro rata beneficial interest in the assets
allocated to the Portfolios, and shall be entitled to receive its pro rata share
of net assets of the Portfolios upon liquidation of the Portfolios, all as
provided in the Declaration.
3. Shareholders of each Series (including the Portfolios) shall vote
separately as a class on any matter, except, consistent with the Investment
Company Act of 1940, as amended ("the Act"), and the rules and the Fund's
registration statement thereunder, with respect to (i) the election of Trustees,
(ii) any amendment of the Declaration of Trust, unless the amendment affects
fewer than all classes of shares, in which case only shareholders of the
affected classes shall vote, and (iii) ratification of the selection of
auditors. In each case of separate voting, the Trustees shall determine whether,
for the matter to be effectively acted upon within the meaning of Rule 18f-2
under the Act (or any successor rule) as to a Series, the applicable percentage
(as specified in the Declaration of Trust, or the Act and the rules thereunder)
of the shares of that Series alone must be voted in favor of the matter, or
whether the favorable vote of such applicable percentage of the shares of each
Series entitled to vote on the matter is required.
<PAGE>
4. The assets and liabilities of the Fund shall be allocated among the
Series of the Fund as set forth in Section 5.11 of the Declaration, except that
only the preexisting Series shall bear their allocable portion of the remaining
unamortized costs incurred and payable by the Fund in connection with their
organization and registration; costs of establishing the Portfolios and of the
registration and public offering of their Shares shall be amortized for such
Portfolios over the period beginning on the date such costs become payable and
ending sixty months thereafter.
5. The Trustees shall have the right at any time and from time to time to
reallocate assets and expenses or to change the designation of the Portfolios
hereby created, or to otherwise change the special and relative rights of such
Portfolios, provided that such change shall not adversely affect the rights of
the Shareholders of such Portfolios.
IN WITNESS WHEREOF, the undersigned have executed this instrument the 28th
day of May, 1991.
_______________________
_______________________
_______________________
_______________________
_______________________
_______________________
Pacific Investment Management Institutional Trust
Establishment and Designation of Two
Additional Series of Shares of Beneficial Interest,
Par Value $0.0001 Per Share
RESOLVED, that pursuant to Section 5.11(f) of the Declaration of Trust of
Pacific Investment Management Institutional Trust (the "Fund") dated February
19, 1987, ("Declaration"), the shares of beneficial interest of the Trust shall
be divided into two additional separate Series (the "Portfolios");
FURTHER RESOLVED, that the Portfolios shall have the following special and
relative rights:
1. The Portfolios shall be designated the "Income and Capital Preservation
Portfolio I" and the "Income and Capital Preservation Portfolio II."
2. The Portfolios shall be authorized to invest in cash, securities,
instruments and other property as from time to time described in the Fund's then
currently effective prospectuses and registration statement under the securities
Act of 1933. Each share of beneficial interest of the Portfolios ("Share") shall
be redeemable, shall be entitled to one vote (or fraction thereof in respect of
a fractional Share) on matters on which Shares of the Portfolios shall be
entitled to vote, shall represent a pro rata beneficial interest in the assets
allocated to the Portfolios, and shall be entitled to receive its pro rata share
of net assets of the Portfolios upon liquidation of the Portfolios, all as
provided in the Declaration.
3. Shareholders of each Series (including the Portfolios) shall vote
separately as a class on any matter, except, consistent with the Investment
Company Act of 1940, as amended ("the Act"), and the rules and the Fund's
registration statement thereunder, with respect to (i) the election of Trustees,
(ii) any amendment of the Declaration of Trust, unless the amendment affects
fewer than all classes of shares, in which case only shareholders of the
affected classes shall vote, and (iii) ratification of the selection of
auditors. In each case of separate voting, the Trustees shall determine whether,
for the matter to be effectively acted upon within the meaning of Rule 18f-2
under the Act (or any successor rule) as to a Series, the applicable percentage
(as specified in the Declaration of Trust, or the Act and the rules thereunder)
of the shares of that Series alone must be voted in favor of the matter, or
whether the favorable vote of such applicable percentage of the shares of each
Series entitled to vote on the matter is required.
4. The assets and liabilities of the Fund shall be allocated among the
Series of the Fund as set forth in Section 5.11 of the Declaration, except that
only the preexisting series shall bear their allocable portion of the remaining
unamortized costs incurred and payable by the Fund in connection with their
organization and registration; costs of establishing the Portfolios and of the
registration and public offering of their Shares shall be amortized for such
Portfolios over the period beginning on the date such costs become payable and
ending sixty months thereafter.
5. The Trustees shall have the right at any time and from time to time to
reallocate assets and expenses or to change the designation of the Portfolios
hereby created, or to otherwise change the special and relative rights of such
Portfolios, provided that such change shall not adversely affect the rights of
the Shareholders of such Portfolios.
IN WITNESS WHEREOF, the undersigned have executed this instrument the 27th
day of August, 1991.
________________________
________________________
________________________
________________________
Amended and Restated Establishment and
Designation of Series of Shares of Beneficial
Interest, Par Value $0.0001 Per Share, of
PIMCO Funds
(formerly Pacific Investment Management Institutional Trust)
February 25, 1992
The undersigned, being at least a majority of the Trustees of PIMCO Funds
(the "Trust") (formerly Pacific Investment Management Institutional Trust), a
Massachusetts business trust established by a Declaration of Trust dated
February 19, 1987, as amended from time to time (the "Declaration"), acting
pursuant to Sections 4.11 and 5.12 of the Declaration, hereby amend and restate
the initial Establishment and Designation of Series of Shares of Pacific
Investment Institutional Trust dated April 29, 1987, the Establishment and
Designation of Series of Shares of Pacific Investment Management Institutional
Trust dated May 28, 1991, and the Establishment and Designation of Series of
Shares of Pacific Investment Management Institutional Trust dated May 28, 1991,
and the Establishment and Designation of Series of Shares of Pacific Investment
Management Institutional Trust dated August 27, 1991 as follows:
FIRST: Pursuant to Section 5.11 and to Section 5.12(e) of the
Declaration, the series of Shares of the Trust hitherto established and
designated (the "Funds") shall be redesignated as follows, without in any way
changing the rights or privileges of the Funds or their shareholders:
<TABLE>
<S> <C>
Series Originally Established Redesignated Series
Low Duration Portfolio Low Duration Fund
Low Duration Portfolio Low Duration Fund
Mortgage Plus Portfolio Mortgage Plus Fund
Short-Term Portfolio Short-Term Fund
Total Return Portfolio Total Return Fund
Growth Stock Portfolio Growth Stock Fund
Market Mirror Stock Portfolio Market Mirror Stock Fund
International Portfolio International Fund
Global Portfolio Global Fund
Foreign Portfolio Foreign Fund
Low Duration Divestiture Portfolio Low Duration Divestiture Fund
Total Return Divestiture Portfolio Total Return Divestiture Fund
High Yield Portfolio High Yield Fund
Total Return Portfolio II Total Return Fund II
Low Duration Portfolio II Low Duration Fund II
Income and Capital Preservation Portfolio Income and Capital Preservation Fund
Income and Capital Preservation Portfolio II Income and Capital Preservation Fund II
</TABLE>
<PAGE>
SECOND: The Funds shall have the following special and relative rights:
1. The Funds shall be authorized to invest in cash, securities, instruments
and other property as from time to time described in the Trust's then currently
effective prospectuses and registration statement under the Securities Act of
1933. Each share of beneficial interest of a Fund ("Share") shall be redeemable,
shall be entitled to one vote (or fraction thereof in respect of a fractional
Share) on matters on which Shares of the Fund shall be entitled to vote, shall
represent a pro rata beneficial interest in the assets allocated to the Fund and
shall be entitled to receive its pro rata share of net assets of the Fund upon
liquidation of the Fund, all as provided in the Declaration.
2. Shareholders of each Fund shall vote separately as a class on any
matter, except, consistent with the Investment Company Act of 1940, as amended
("the Act"), and the rules and the Trust's registration statement thereunder,
with respect to (i) the election of Trustees, (ii) any amendment of the
Declaration of Trust, unless the amendment affects fewer than all classes of
shares, in which case only shareholders of the affected classes shall vote, and
(iii) ratification of the selection of auditors. In each case of separate
voting, the Trustees shall determine whether, for the matter to be effectively
acted upon within the meaning of Rule 18f-2 under the Act (or any successor
rule) as to a Fund, the applicable percentage (as specified in the Declaration,
or the Act and the rules thereunder) of the shares of that Fund alone must be
voted in favor of the matter, or whether the favorable vote of such applicable
percentage of the shares of each Fund entitled to vote on the matter is
required.
3. The assets and liabilities of the Trust shall be allocated among the
Funds as set forth in Section 5.11 of the Declaration, except that only the
preexisting Funds shall bear their allocable portion of the remaining
unamortized costs incurred and payable in connection with their organization and
registration; costs of establishing subsequent Series and of the registration
and public offering of their Shares shall be amortized for such Series over the
period beginning on the date such costs become payable and ending sixty months
thereafter.
4. The Trustees shall have the right at any time and from time to time to
reallocate assets and expenses or to change the designation of the Funds hereby
created, or to otherwise change the special and relative rights of such Funds,
provided that such change shall not adversely affect the rights of the
Shareholders of such Funds.
IN WITNESS WHEREOF, the undersigned have executed this instrument the 25th
day of February, 1992.
_________________________
_________________________
_________________________
_________________________
_________________________
- 2 -
Amended Designation
of Two Series of Shares of Beneficial
Interest, Par Value $0.0001 Per Share, of
PIMCO Funds
(formerly Pacific Investment Management Institutional Trust)
May __, 1992
The undersigned, being at least a majority of the Trustees of PIMCO Funds
(the "Trust") (formerly Pacific Investment Management Institutional Trust), a
Massachusetts business trust established by a Declaration of Trust dated
February 19, 1987, as amended from time to time (the "Declaration"), acting
pursuant to Sections 5.11 and 5.12 of the Declaration, hereby amend the Amended
and Restated Establishment and Designation of Series of Shares of PIMCO Funds
dated February 25, 1992 as follows:
FIRST: The series of Shares of the Trust established and designated as the
Low Duration South Africa Free Fund shall be redesignated as the Low Duration
Fund III, without in any way changing the rights or privileges of the Fund or
its shareholders.
SECOND: The series of Shares of the Trust established and designated as the
Total Return South Africa Free Fund shall be redesignated as the Total Return
Fund III, without in any way changing the rights or privileges of the Fund or
its shareholders.
IN WITNESS WHEREOF, the undersigned have executed this instrument the ____
day of May, 1992.
______________________ _____________________
Brent R. Harris Walter B. Gerken
______________________ _____________________
Thomas P. Kemp Guilford C. Babcock
______________________
Vern O. Curtis
Second Amended and Restated Establishment and
Designation of Series of Shares of Beneficial
Interest, Par Value $0.0001 Per Share, of PIMCO Funds
(formerly Pacific Investment Management Institutional Trust)
May 31, 1994
The undersigned, being at least a majority of the Trustees of PIMCO Funds
(the "Trust") (formerly Pacific Investment Management Institutional Trust), a
Massachusetts business trust established by a Declaration of Trust dated
February 19, 1987, as amended from time to time (the "Declaration"), acting
pursuant to Sections 4.11 and 5.12 of the Declaration, hereby divide the
interests in each separate series of the Trust into two separate classes, the
Funds and the classes each having the following special and relative rights:
FIRST: The series of Shares of the Trust hitherto established and
designated (the "Funds") are as follows:
Low Duration Fund
Low Duration Fund II
Low Duration Fund III
Mortgage Plus Fund Long-Term U.S. Government Fund
Short-Term Fund
Total Return Fund
Total Return Fund
Total Return Fund
Growth Stock Fund
StocksPLUS Fund
International Fund
Global Fund
Foreign Fund
High Yield Fund
Income and Capital Preservation Fund
Income and Capital Preservation Fund II
SECOND: Each such Fund shall issue its shares of beneficial interest with
respect to two classes: Class A and Class B.
THIRD: The Funds and their classes shall have the following special and
relative rights:
(1) The Funds shall be authorized to invest in cash, securities,
instruments and other property as from time to time described in the Trust's
then currently effective prospectuses and registration statement under the
Securities Act of 1933. Each share of beneficial interest of a Fund ("Share")
shall be redeemable, shall be entitled to one vote (or fraction thereof in
respect of a fractional Share) on matters on which Shares of the Fund shall be
entitled to vote, shall represent a pro rata beneficial interest in the assets
allocated to the Fund and shall be entitled to receive its pro rata share of net
assets of the Fund upon liquidation of the Fund, all as provided in the
Declaration.
(2) Each Share of a Fund shall be entitled to one vote (or fraction thereof
in respect of a fractional Share) on matters on which such Shares of the Fund
shall be entitled to vote. Shareholders of each Fund shall vote separately as a
class on any matter, except, consistent with the Investment Company Act of 1940,
as amended ("the Act"), and the rules and the Trust's registration statement
thereunder, with respect to (i) the election of Trustees, (ii) any amendment of
the Declaration of Trust, unless the amendment affects fewer than all classes of
Shares, in which case only shareholders of the affected classes shall vote, and
(iii) ratification of the selection of auditors, and except when the Trustees
have determined that the matter affects only the interests of shareholders of a
particular class of Shares, in which case only the shareholders of such class
shall be entitled to vote thereon. In each case of separate voting, the Trustees
shall determine whether, for the matter to be effectively acted upon within the
meaning of Rule 18f-2 under the Act (or any successor rule) as to a Fund or
class, the applicable percentage (as specified in the Declaration, or the Act
and the rules thereunder) of the shares of that Fund or class alone must be
voted in favor of the matter, or whether the favorable vote of such applicable
percentage of the shares of each Fund or class entitled to vote on the matter is
required.
<PAGE>
(3) (a) The assets and liabilities of the Trust shall be allocated among
the Funds as set forth in Section 5.11 of the Declaration, except that only the
preexisting Funds shall bear their allocable portion of the remaining
unamortized costs incurred and payable in connection with their organization and
registration; costs of establishing subsequent Series and of the registration
and public offering of their Shares shall be amortized for such Series over the
period beginning on the date such costs become payable and ending sixty months
thereafter.
(b) Liabilities, expenses, costs, charges or reserves relating to the
distribution of, and other identified expenses that should properly be allocated
to, the Shares of a particular class may be charged to and borne solely by such
class and the bearing of expenses solely by a class of Shares may be
appropriately reflected and cause differences in the net asset value
attributable to and the dividend, redemption and liquidation rights of, the
Shares of different classes.
(c) Each allocation of liabilities, expenses, costs, charges and
reserves by the Trustees shall be conclusive and binding upon the Shareholders
of all classes for all purposes.
(4) Shares of each class of each Fund may vary between themselves as to
rights of redemption and conversion rights, as may be approved by the Trustees
and set out in each Fund's then-current prospectus.
(5) The Trustees shall have the right at any time and from time to time to
reallocate assets and expenses or to change the designation of any Fund or class
thereof hitherto or hereafter created, or to otherwise change the special and
relative rights of such Fund or class, provided that such change shall not
adversely affect the rights of the Shareholders of such Fund or class.
IN WITNESS WHEREOF, the undersigned have executed this instrument the 31st
day of May, 1994.
________________________
________________________
________________________
________________________
Redesignation of One Existing Series
of Shares of Beneficial Interest and
Establishment and Designation of Two
Additional Series of Shares of Beneficial Interest,
Par Value $0.0001 Per Share, of PIMCO Funds
(formerly Pacific Investment Management Institutional Trust)
RESOLVED, that pursuant to Section 5.12(e) of the Declaration of Trust of
PIMCO Funds (formerly the Pacific Investment Management Institutional Trust)
(the "Trust") dated February 19, 1987, as amended ("Declaration"), the Series of
the Trust designated the "Mortgage Plus Fund" is hereby redesignated the
"Commercial Mortgage Securities Fund";
RESOLVED, that pursuant to Section 5.12(a) of the Declaration, the shares
of beneficial interest of the Trust shall be divided into two additional
separate Series (the "Funds");
FURTHER RESOLVED, that the Funds shall have the following special and
relative rights:
1. The Funds shall be designated the "Moderate Duration Fund" and the
"VersaSTYLE Equity Fund."
2. Each such Fund shall issue its shares of beneficial interest with
respect to two classes: the Institutional Class or Class A, and the
Administrative Class or Class B.
3. The Funds shall be authorized to invest in cash, securities, instruments
and other property as from time to time described in the Trust's then currently
effective prospectuses and registration statement under the Securities Act of
1933. Each share of beneficial interest of the Funds ("Share") shall be
redeemable, shall be entitled to one vote (or fraction thereof in respect of a
fractional Share) on matters on which Shares of the Funds shall be entitled to
vote, shall represent a pro rata beneficial interest in the assets allocated to
the Funds, and shall be entitled to receive its pro rata share of net assets of
the Funds upon liquidation of the Funds, all as provided in the Declaration.
4. Each Share of a Fund shall be entitled to one vote (or fraction thereof
in respect of a fractional Share) on matters on which such Shares of the Fund
shall be entitled to vote. Shareholders of each Fund shall vote separately as a
class on any matter, except, consistent with the Investment Company Act of 1940,
as amended ("the Act"), and the rules and the Trust's registration statement
thereunder, with respect to (i) the election of Trustees, (ii) any amendment of
the Declaration, unless the amendment affects fewer than all classes of Shares,
in which case only shareholders of the affected classes shall vote, and (iii)
ratification of the selection of auditors, and except when the Trustees have
determined that the matter affects only the interests of shareholders of a
particular class of Shares, in which case only the shareholders of such class
shall be entitled to vote thereon. In each case of separate voting, the Trustees
shall determine whether, for the matter to be effectively acted upon within the
meaning of Rule 18f-2 under the Act (or any successor rule) as to a Fund or
class, the applicable percentage (as specified in the Declaration, or the Act
and the rules thereunder) of the shares of that Fund or class alone must be
voted in favor of the matter, or whether the favorable vote of such applicable
percentage of the shares of each Fund or class entitled to vote on the matter is
required.
<PAGE>
5. (a) The assets and liabilities of the Trust shall be allocated among the
Funds as set forth in Section 5.11 of the Declaration, except that only the
preexisting Funds shall bear their allocable portion of the remaining
unamortized costs incurred and payable in connection with their organization and
registration; costs of establishing the Funds and of the registration and public
offering of their Shares shall be amortized for such Funds over the period
beginning on the date such costs become payable and ending sixty months
thereafter.
(b) Liabilities, expenses, costs, charges or reserves relating to the
distribution of, and other identified expenses that should properly be allocated
to, the Shares of a particular class may be charged to and borne solely by such
class and the bearing of expenses solely by a class of Shares may be
appropriately reflected and cause differences in the net asset value
attributable to and the dividend, redemption and liquidation rights of, the
Shares of different classes.
(c) Each allocation of liabilities, expenses, costs, charges and
reserves by the Trustees shall be conclusive and binding upon the Shareholders
of all classes for all purposes.
6. Shares of each class of each Fund may vary between themselves as to
rights of redemption and conversion rights, as may be approved by the Trustees
and set out in each Fund's then-current prospectus.
7. The Trustees shall have the right at any time and from time to time to
reallocate assets and expenses or to change the designation of each Fund or
class hereby created, or to otherwise change the special and relative rights of
such Funds or classes, provided that such change shall not adversely affect the
rights of the Shareholders of such Funds or classes.
IN WITNESS WHEREOF, the undersigned have executed this instrument the 23
day of August, 1994.
________________________
Brent R. Harris
_______________________
Guilford C. Babcock
_______________________
William J. Popejoy
_______________________
Walter B. Gerken
______________________
Thomas Kemp
Amended Designation of Two Existing Series
of Shares of Beneficial Interest,
Par Value $0.0001 Per Share, of
PIMCO Funds
(formerly Pacific Investment Management Institutional Trust)
RESOLVED, that pursuant to Section 5.12(e) of the Declaration of Trust of
PIMCO Funds (formerly the Pacific Investment Management Institutional Trust)
(the "Trust") dated February 19, 1987, as amended ("Declaration"), the Series of
Shares of the Trust designated as the "Income and Capital Preservation Fund," by
instrument dated August 27, 1991, is hereby redesignated the "PIMCO Money Market
Fund," without in any way changing the rights or privileges of the Fund or its
Shareholders.
FURTHER RESOLVED, that pursuant to Section 5.12(e) of the Declaration, the
Series of Shares of the Trust designated as the "Income and Capital Preservation
Fund II," by instrument dated August 27, 1991, is hereby redesignated the "PIMCO
Total Return Fund II," without in any way changing the rights or privileges of
the Fund or its Shareholders.
IN WITNESS WHEREOF, the undersigned, being at least a majority of the
Trustees of the Trust, have executed this instrument the 22nd day of August,
1995.
------------------------------
Brent R. Harris
------------------------------
Guilford C. Babcock
------------------------------
Vern O. Curtis
------------------------------
Thomas P. Kemp
------------------------------
William J. Popejoy
BY-LAWS
OF
PACIFIC INVESTMENT MANAGEMENT INSTITUTIONAL TRUST
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS........................................ 1
ARTICLE II - OFFICES........................................... 1
Section 1. Resident Agent........................... 1
Section 2. Offices.................................. 1
ARTICLE III - SHAREHOLDERS..................................... 2
Section 1. Meetings................................. 2
Section 2. Notice of Meetings....................... 2
Section 3. Record Date for Meetings
and Other Purposes............. 2
Section 4. Proxies.................................. 3
Section 5. Action without Meeting................... 4
ARTICLE IV - TRUSTEES.......................................... 4
Section 1. Meetings of the Trustees................. 4
Section 2. Quorum and Manner of Acting.............. 5
ARTICLE V - COMMITTEES......................................... 6
Section 1. Executive and Other Committees........... 6
Section 2. Meetings, Quorum and Manner of Acting.... 7
ARTICLE VI - OFFICERS ......................................... 7
Section 1. General Provisions....................... 7
Section 2. Term of Office and Qualifications........ 8
Section 3. Removal.................................. 8
Section 4. Powers and Duties of the President....... 8
Section 5. Powers and Duties of Vice Presidents..... 9
Section 6. Powers and Duties of the Treasurer....... 9
Section 7. Powers and Duties of the Secretary....... 9
Section 8. Powers and Duties of Assistant
Treasurers.............................. 10
Section 9. Powers and Duties of Assistant
Secretaries.................... 10
Section 10. Compensation of Officers and Trustees
and Members of the Advisory Board 10
ARTICLE VII - FISCAL YEAR...................................... 11
ARTICLE VIII - SEAL............................................ 11
ARTICLE IX - WAIVERS OF NOTICE................................. 11
<PAGE>
Page
ARTICLE X - CUSTODY OF SECURITIES............................ 12
Section 1. Employment of a Custodian .............. 12
Section 2. Action Upon Termination of
Custodian Agreement........... 12
Section 3. Provisions of Custodian Agreement....... 13
Section 4. Central Certificate System.............. 14
Section 5. Acceptance of Receipts in Lieu of
Certificates ....................... 14
ARTICLE XI - AMENDMENTS..................................... 15
ARTICLE XII - INSPECTION OF BOOKS............................ 15
ARTICLE XIII - MISCELLANEOUS................................. 15
<PAGE>
BY-LAWS
OF
PACIFIC INVESTMENT MANAGEMENT INSTITUTIONAL TRUST
ARTICLE I
DEFINITIONS
Any terms defined in the Declaration of Trust of Pacific Investment
Management Institutional Trust dated February , 1987, as amended from time to
time, shall have the same meaning when used herein.
ARTICLE II
OFFICES
Section 1. Resident Agent. The Trust shall maintain a resident agent in the
Commonwealth of Massachusetts, which agent shall initially be CT Corporation
System, 2 Oliver Street, Boston, Massachusetts 02109. The Trustees may designate
a successor resident agent, provided, however, that such appointment shall not
become effective until written notice thereof is delivered to the office of the
Secretary of the Commonwealth.
Section 2. Offices. The Trust may have its principal office and other
offices in such places within as well as without the Commonwealth as the
Trustees may from time to time determine.
ARTICLE III
SHAREHOLDERS
Section 1. Meetings. Meetings of the Shareholders shall be held as provided
in the Declaration of Trust at such place within or without the Commonwealth of
Massachusetts as the Trustees shall designate. The holders of a majority of
outstanding Shares present in person or by proxy shall constitute a quorum at
any meeting of the Shareholders.
Section 2. Notice of Meetings. Notice of all meetings of the Shareholders,
stating the time, place and purposes of the meeting, shall be given by the
Trustees by mail to each Shareholder at his address as recorded on the register
of the Trust mailed at least ten (10) days and not more than sixty (60) days
before the meeting. Only the business stated in the notice of the meeting shall
be considered at such meeting. Any adjourned meeting may be held as adjourned
without further notice. No notice need be given to any Shareholder who shall
have failed to inform the Trust of his current address or if a written waiver of
notice, executed before or after the meeting by the Shareholder or his attorney
thereunto authorized, is filed with the records of the meeting.
Section 3. Record Date for Meetings and Other Purposes. For the purpose of
determining the Shareholders who are entitled to notice of and to vote at any
meeting, or to participate in any distribution, or for the purpose of any other
action, the Trustees may from time to time close the transfer books for such
period, not exceeding thirty (30) days, as the Trustees may determine; or
without closing the transfer books the Trustees may fix a date not more than
sixty (60) days prior to the date of any meeting of Shareholders or distribution
or other action as a record date for the determinations of the persons to be
treated as Shareholders of record for such purposes, except for dividend
payments which shall be governed by the Declaration.
<PAGE>
Section 4. Proxies. At any meeting of Shareholders, any holder of Shares
entitled to vote thereat may vote by proxy, provided that no proxy shall be
voted at any meeting unless it shall have been placed on file with the
Secretary, or with such other officer or agent of the Trust as the Secretary may
direct, for verification prior to the time at which such vote shall be taken.
Proxies may be solicited in the name of one or more Trustees or one or more of
the officers of the Trust. Only Shareholders of record shall be entitled to
vote. Each whole share shall be entitled to one vote as to any matter on which
it is entitled by the Declaration to vote, and each fractional Share shall be
entitled to a proportionate fractional vote. When any Share is held jointly by
several persons, any one of them may vote at any meeting in person or by proxy
in respect of such Share, but if more than one of them shall be present at such
meeting in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Share. A proxy purporting to be executed by or on behalf of a
Shareholder shall be deemed valid unless challenged at or prior to its exercise,
and the burden of proving invalidity shall rest on the challenger. If the holder
of any such share is a minor or legally incompetent, and subject to guardianship
or the legal control of any other person as regards the charge or management of
such Share, he may vote by his guardian or such other person appointed or having
such control, and such vote may be given in person or by proxy.
Section 5. Action Without Meeting. Any action which may be taken by
Shareholders may be taken without a meeting if a majority of Shareholders
entitled to vote on the matter (or such larger proportion thereof as shall be
required by law, the Declaration or these By-Laws for approval of such matter)
consent to the action in writing and the written consents are filed with the
records of the meetings of Shareholders. Such consents shall be treated for all
purposes as a vote taken at a meeting of Shareholders.
ARTICLE IV
TRUSTEES
Section 1. Meetings of the Trustees. The Trustees may in their discretion
provide for regular or stated meetings of the Trustees. Notice of regular or
stated meetings need not be given. Meetings of the Trustees other than regular
or stated meetings shall be held whenever called by the President, or by any one
of the Trustees, at the time being in office. Notice of the time and place of
each meeting other than regular or stated meetings shall be given by the
Secretary or an Assistant Secretary or by the officer or Trustee calling the
meeting and shall be mailed to each Trustee at least two days before the
meeting, or shall be telegraphed, cabled, or wirelessed to each Trustee at his
business address, or personally delivered to him at least one day before the
meeting. Such notice may, however, be waived by any Trustee. Notice of a meeting
need not be given to any Trustee if a written waiver of notice, executed by him
before or after the meeting, is filed with the records of the meeting, or to any
Trustee who attends the meeting without protesting prior thereto or at its
commencement the lack of notice to him. A notice or waiver of notice need not
specify the purpose of any meeting. The Trustees may meet by means of a
telephone conference circuit or similar communications equipment by means of
which all persons participating in the meeting shall be deemed to have been held
at a place designated by the Trustees at the meeting. Participation in a
telephone conference meeting shall constitute presence in person at such
meeting. Any action required or permitted to be taken at any meeting of the
Trustees may be taken by the Trustees without a meeting if all the Trustees
consent to the action in writing and the written consents are filed with the
records of the Trustees' meetings. Such consents shall be treated as a vote for
all purposes.
<PAGE>
Section 2. Quorum and Manner of Acting. A majority of the Trustees shall be
present in person at any regular or special meeting of the Trustees in order to
constitute a quorum for the transaction of business at such meeting and (except
as otherwise required by law, the Declaration or these By-Laws) the act of a
majority of the Trustees present at any such meeting, at which a quorum is
present, shall be the act of the Trustees. In the absence of a quorum, a
majority of the Trustees present may adjourn the meeting from time to time until
a quorum shall be present. Notice of an adjourned meeting need not be given.
ARTICLE V
COMMITTEES
Section 1. Executive and Other Committees. The Trustees by vote of a
majority of all the Trustees may elect from their own number an Executive
Committee to consist of not less than three (3) to hold office at the pleasure
of the Trustees, which shall have the power to conduct the current and ordinary
business of the Trust while the Trustees are not in session, including the
purchase and sale of securities and the designation of securities to be
delivered upon redemption of Shares of the Trust, and such other powers of the
Trustees as the Trustees may, from time to time, delegate to them except those
powers which by law, the Declaration or these By-Laws they are prohibited from
delegating. The Trustees may also elect from their own number other Committees
from time to time, the number composing such Committees, the powers conferred
upon the same (subject to the same limitations as with respect to the Executive
Committee) and the term of membership on such Committees to be determined by the
Trustees. The Trustees may designate a Chairman of any such Committee. In the
absence of such designation, the Committee may elect its own Chairman.
Section 2. Meetings, Quorum and Manner of Acting. The Trustees may (1)
provide for stated meetings of any Committee, (2) specify the manner of calling
and notice required for special meetings of any Committee, (3) specify the
number of members of a Committee required to constitute a quorum and the number
of members of a Committee required to exercise specified powers delegated to
such Committee, (4) authorize the making of decisions to exercise specified
powers by written assent of the requisite number of members of a Committee
without a meeting, and (5) authorize the members of a Committee to meet by means
of a telephone conference circuit.
The Executive Committee shall keep regular minutes of its meetings and
records of decisions taken without a meeting and cause them to be recorded in a
book designated for that purpose and kept in the Office of the Trust.
<PAGE>
ARTICLE VI
OFFICERS
Section 1. General Provisions. The officers of the Trust shall
be a President, a Treasurer and a Secretary, who shall be elected by the
Trustees. The Trustees may elect or appoint such other officers or agents as the
business of the Trust may require, including one or more Executive or Senior
Vice Presidents, one or more Vice Presidents, one or more Assistant Secretaries,
and one or more Assistant Treasurers. The Trustees may delegate to any officer
or Committee the power to appoint any subordinate officers or agents.
Section 2. Term of Office and Qualifications. Except as otherwise provided
by law, the Declaration or these By-Laws, the President, the Treasurer and the
Secretary shall each hold office until his successor shall have been duly
elected and qualified, and all other officers shall hold office at the pleasure
of the Trustees. The Secretary and Treasurer may be the same person. A Vice
President and the Treasurer or Assistant Treasurer or a Vice President and the
Secretary or Assistant Secretary may be the same person, but the offices of Vice
President and Secretary and Treasurer shall not be held by the same person. The
President shall hold no other office. Except as above provided, any two offices
may be held by the same person. Any officer may be, but none need be, a Trustee
or Shareholder.
Section 3. Removal. The Trustees, at any regular or special meeting of the
Trustees, may remove any officer without cause, by a vote of a majority of the
Trustees then in office. Any officer or agent appointed by an officer or
Committee may be removed with or without cause by such appointing officer or
Committee.
Section 4. Powers and Duties of the President. The President may call
meetings of the Trustees and of any Committee thereof when he deems it necessary
and shall preside at all meetings of the Shareholders. Subject to the control of
the Trustees and to the control of any Committees of the Trustees, within their
respective spheres, as provided by the Trustees, he shall at all times exercise
general supervision and direction over the affairs of the Trust. He shall have
the power to employ attorneys and counsel for the Trust and to employ such
subordinate officers, agents, clerks and employees as he may find necessary to
transact the business of the Trust. He shall also have the power to grant,
issue, execute or sign such powers of attorney, proxies or other documents as
may be deemed advisable or necessary in furtherance of the interests of the
Trust. The President shall have such other powers and duties as from time to
time may be conferred upon or assigned to him by the Trustees.
Section 5. Powers and Duties of Vice Presidents. In the absence or
disability of the President, any Vice President designated by the Trustees shall
perform all the duties and may exercise any of the powers of the President,
subject to the control of the Trustees. Each Vice President shall perform such
other duties as may be assigned to him from time to time by the Trustees and the
President.
Section 6. Powers and Duties of the Treasurer. The Treasurer shall be the
principal financial and accounting officer of the Trust. He shall deliver all
funds of the Trust which may come into his hands to such Custodian as the
Trustees may employ pursuant to Article X of these By-Laws. He shall in general
perform all the duties incident to the office of Treasurer and such other duties
as from time to time may be assigned to him by the Trustees.
<PAGE>
Section 7. Powers and Duties of the Secretary. The Secretary shall keep the
minutes of all meetings of the Trustees and of the Shareholders in proper books
provided for that purpose; he shall have custody of the seal of the Trust; he
shall have charge of the Share transfer books, lists and records unless the same
are in the charge of the Transfer Agent. He shall attend to the giving and
serving of all notices by the Trust in accordance with the provisions of these
By-Laws and as required by law; and subject to these By-Laws, he shall in
general perform all duties incident to the office of Secretary and such other
duties as from time to time may be assigned to him by the Trustees.
Section 8. Powers and Duties of Assistant Treasurers. In the absence or
disability of the Treasurer, any Assistant Treasurer designated by the Trustees
shall perform all the duties, and may exercise any of the powers, of the
Treasurer. Each Assistant Treasurer shall perform such other duties as from time
to time may be assigned to him by the Trustees.
Section 9. Powers and Duties of Assistant Secretaries. In the
absence or disability of the Secretary, any Assistant Secretary designated by
the Trustees shall perform all the duties, and may exercise any of the powers,
of the Secretary. Each Assistant Secretary shall perform such other duties as
from time to time may be assigned to him by the Trustees.
Section 10. Compensation of Officers and Trustees and Members of the
Advisory Board. Subject to any applicable provisions of the Declaration, the
compensation of the officers and Trustees and members of any Advisory Board
shall be fixed from time to time by the Trustees or, in the case of officers, by
any Committee or officer upon whom such power may be conferred by the Trustees.
No officer shall be prevented from receiving such compensation as such officer
by reason of the fact that he is also a Trustee.
ARTICLE VII
FISCAL YEAR
The fiscal year of the Trust shall begin on the first day of __________ in
each year and shall end on the day of __________ in each year, provided,
however, that the Trustees may from time to time change the fiscal year.
ARTICLE VIII
SEAL
The Trustees may adopt a seal which shall be in such form and shall have
such inscription thereon as the Trustees may from time to time prescribe.
ARTICLE IX
WAIVERS OF NOTICE
Whenever any notice is required to be given by law, the Declaration or
these By-Laws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto. A notice shall be deemed to have been telegraphed,
cabled or wirelessed for the purposes of these By-Laws when it has been
delivered to a representative of any telegraph, cable or wireless company with
instructions that it be telegraphed, cabled or wirelessed.
<PAGE>
ARTICLE X
CUSTODY OF SECURITIES
Section 1. Employment of a Custodian. The Trust shall place and at all
times maintain in the custody of a Custodian (including any sub-custodian for
the Custodian, which may be a foreign bank which meets applicable requirements
of law) all funds, securities and similar investments included in the Trust
Property. The Custodian (and any sub-custodian) shall be a bank having not less
than $2,000,000 aggregate capital, surplus and undivided profits and shall be
appointed from time to time by the Trustees, who shall fix its remuneration.
Section 2. Action Upon Termination of Custodian Agreement. Upon termination
of a Custodian Agreement or inability of the Custodian to continue to serve, the
Trustees shall promptly appoint a successor Custodian, but in the event that no
successor Custodian can be found who has the required qualifications and is
willing to serve, the Trustees shall call as promptly as possible a special
meeting of the Shareholders to determine whether the Trust shall function
without a Custodian or shall be liquidated. If so directed by vote of the
holders of a majority of the outstanding voting securities, the Custodian shall
deliver and pay over all Trust Property held by it as specified in such vote.
Section 3. Provisions of Custodian Agreement. The following provisions
shall apply to the employment of a Custodian and to any contract entered into
with the Custodian so employed:
The Trustees shall cause to be delivered to the Custodian all
securities included in the Trust Property or to which the
Trust may become entitled, and shall order the same to be
delivered by the Custodian only in completion of a sale,
exchange, transfer, pledge, loan of portfolio securities to
another person, or other disposition thereof, all as the
Trustees may generally or from time to time require or approve
or to a successor Custodian; and the Trustees shall cause all
funds included in the Trust Property or to which it may become
entitled to be paid to the Custodian, and shall order the same
disbursed only for investment against delivery of the
securities acquired, or the return of cash held as collateral
for loans of portfolio securities, or in payment of expenses,
including management compensation, and liabilities of the
Trust, including distributions to Shareholders, or to a
successor Custodian. In connection with the Trust's purchase
or sale of futures contracts, the Custodian shall transmit,
prior to receipt on behalf of the Trust of any securities or
other property, funds from the Trust's Custodian account in
order to furnish to and maintain funds with brokers as margin
to guarantee the performance of the Trust's futures
obligations in accordance with the applicable requirements of
commodities exchanges and brokers.
Section 4. Central Certificate System. Subject to such rules, regulations
and orders as the Commission may adopt, the Trustees may direct the Custodian to
deposit all or any part of the securities owned by the Trust in a system for the
central handling of securities established by a national securities exchange or
a national securities association registered with the Commission under the
Securities Exchange Act of 1934, or such other person as may be permitted by the
Commission, or otherwise in accordance with the 1940 Act, pursuant to which
system all securities of any particular class or series of any issuer deposited
within the system are treated as fungible and may be transferred or pledged by
bookkeeping entry without physical delivery of such securities, provided that
all such deposits shall be subject to withdrawal only upon the order of the
Trust.
<PAGE>
Section 5. Acceptance of Receipts in Lieu of Certificates. Subject to such
rules, regulations and orders as the Commission may adopt, the Trustees may
direct the Custodian to accept written receipts or other written evidences
indicating purchases of securities held in book-entry form in the Federal
Reserve System in accordance with regulations promulgated by the Board of
Governors of the Federal Reserve System and the local Federal Reserve Banks in
lieu of receipt of certificates representing such securities.
ARTICLE XI
AMENDMENTS
These By-Laws, or any of them, may be altered, amended or repealed, or new
By-Laws may be adopted by vote of a majority of (a) the Shares outstanding and
entitled to vote or (b) the Trustees, provided, however, that no By-Law may be
amended, adopted or repealed by the Trustees if such amendment, adoption or
repeal requires, pursuant to law, the Declaration or these By-Laws, a vote of
the Shareholders.
ARTICLE XII
INSPECTION OF BOOKS
The Trustees shall from time to time determine whether and to what extent,
and at what times and places, and under what conditions and regulations the
accounts and books of the Trust or any of them shall be open to the inspection
of the Shareholders; and no Shareholder shall have any right to inspect any
account or book or document of the Trust except as conferred by laws or
authorized by the Trustees or by resolution of the Shareholders.
ARTICLE XIII
MISCELLANEOUS
(A) Except as hereinafter provided, no officer or Trustee of the Trust and
no partner, officer, director or shareholder of the Investment Adviser or
Distributor of the Trust, and no Investment Adviser or Distributor of the Trust,
and no Investment Adviser or Distributor of the Trust, shall take long or short
positions in the securities issued by the Trust.
(1) The foregoing provisions shall not prevent the Distributor from
purchasing Shares from the Trust if such purchases are limited
(except for reasonable allowances for clerical errors, delays and
errors of transmission and cancellation of orders) to purchases
for the purpose of filling orders for such Shares received by the
Distributor, and provided that orders to purchase from the Trust
are entered with the Trust or the Custodian promptly upon receipt
by the Distributor of purchase orders for such Shares, unless the
Distributor is otherwise instructed by its customer.
(2) The foregoing provision shall not prevent the Distributor from
purchasing Shares of the Trust as agent for the account of the
Trust.
<PAGE>
(3) The foregoing provision shall not prevent the purchase from the
Trust or from the Distributor of Shares issued by the Trust, by
any officer, or Trustee of the Trust or by any partner, officer,
director or shareholder of the Investment Adviser or Distributor
of the Trust at the price available to the public generally at
the moment of such purchase, or as described in the then
currently effective Prospectus of the Trust.
(4) The foregoing shall not prevent the Distributor, or any affiliate
thereof, of the Trust from purchasing Shares prior to the
effectiveness of the first registration statement relating to the
Shares under the Securities Act of 1933.
(B) The Trust shall not lend assets of the Trust to any officer or Trustee
of the Trust, or to any partner, officer, director or shareholder of, or person
financially interested in, the Investment Adviser or the Distributor of the
Trust, or to the Investment Adviser or the Distributor of the Trust.
(C) The Trust shall not impose any restrictions upon the transfer of the
Shares of the Trust except as provided in the Declaration, but this requirement
shall not prevent the charging of customary transfer agent fees.
(D) The Trust shall not permit any officer or Trustee of the Trust, or any
partner, officer or director of the Investment Adviser or Distributor of the
Trust to deal for or on behalf of the Trust with himself as principal or agent,
or with any partnership, association or corporation in which he has a financial
interest; provided that the foregoing provisions shall not prevent (a) officers
and Trustees of the Trust or partners, officers or directors of the Investment
Adviser or Distributor of the Trust from buying, holding or selling shares in
the Trust, or from being partners, officers or directors or otherwise
financially interested in the Investment Adviser or Distributor of the Trust;
(b) purchases or sales of securities or other property by the Trust from or to
an affiliated person or to the Investment Adviser or Distributor of the Trust if
such transaction is exempt from the applicable provisions of the 1940 Act; (c)
purchases of investments for the portfolio of the Trust or sales of investments
owned by the Trust through a security dealer who is, or one or more of whose
partners, shareholders, officers or directors is, an officer or Trustee of the
Trust, or a partner, officer or director of the Investment Adviser or
Distributor of the Trust, if such transactions are handled in the capacity of
broker only and commissions charged do not exceed customary brokerage charges
for such services; (d) employment of legal counsel, registrar, Transfer Agent,
dividend disbursing agent or Custodian who is, or has a partner, shareholder,
officer, or director who is, an officer or Trustee of the Trust, or a partner,
officer or director of the Investment Adviser or Distributor of the Trust, if
only customary fees are charged for services to the Trust; (e) sharing
statistical research, legal and management expenses and office hire and expenses
with any other investment company in which an officer or Trustee of the Trust,
or a partner, officer or director of the Investment Adviser or Distributor of
the Trust, is an officer or director or otherwise financially interested.
END OF BY-LAWS
INVESTMENT ADVISORY CONTRACT
Pacific Investment Management Institutional Trust
840 Newport Center Drive
Newport Beach, California 92260
May 6, 1987
Pacific Investment Management Company
840 Newport Center Drive
Newport Beach, California 92260
Dear Sirs:
This will confirm the agreement between the undersigned (the "Fund") and
Pacific Investment Management Company (the "Adviser") as follows:
1. The Fund is an open-end investment company which currently has seven
separate investment portfolios, all of which are subject to this agreement: the
Total Return Portfolio; the Long Duration Portfolio; the Low Duration Portfolio;
the Mortgage Plus Portfolio; the Short-Term Portfolio; the Market Mirror Stock
Portfolio; and the Growth Stock Portfolio (the "Portfolios"). Additional
investment portfolios may be established in the future. This Contract shall
pertain to the Portfolios and to such additional investment portfolios as shall
be designated in Supplements to this Contract, as further agreed between the
Fund and the Adviser. A separate class of shares of beneficial interest in the
Fund is offered to investors in each Portfolio. The Fund engages in the business
of investing and reinvesting the assets of each Portfolio in the manner and in
accordance with the investment objective and restrictions applicable to that
Portfolio as specified in the currently effective Prospectus (the "Prospectus")
for the Fund included in the registration statement, as amended from time to
time (the "Registration Statement"), filed by the Fund under the Investment
Company Act of 1940 (the "1940 Act") and the Securities Act of 1933 ("1933
Act"). Copies of the documents referred to in the preceding sentence have been
furnished to the Adviser. Any amendments to those documents shall be furnished
to the Adviser promptly. Pursuant to a Distribution Contract (the "Distribution
Contract") between the Fund and Pacific Equities Network ("PEN"), the Fund has
employed PEN to serve as principal underwriter for the shares of beneficial
interest of the Fund. Pursuant to an Administrative Services Contract
("Administrative Services Contract") between the Fund and Pacific Funds
Management Company (the "Administrator"), the Fund has retained the
Administrator to provide the Fund with administrative and other services. The
Fund has also entered into a Custodian Contract and Transfer Agency Agreement
with Boston Safe Deposit & Trust Company ("Boston Safe") and an Accounting
Services Agreement with The Boston Company Advisors, Inc., which provide for
custodian, transfer agency and accounting services for the Fund and its
Portfolios.
<PAGE>
2. The Fund hereby appoints the Adviser to provide the investment advisory
services specified in this contract and the Adviser hereby accepts such
appointment.
3. (a) The Adviser shall, at its expense, (i) employ or associate with
itself such persons as it believes appropriate to assist it in performing its
obligations under this contract and (ii) provide all services, equipment and
facilities necessary to perform its obligations under this contract.
(b) The Fund shall be responsible for all of its expenses and
liabilities, including compensation of its trustees who are not affiliated with
the Adviser, the Administrator, PEN or any of their affiliates; taxes and
governmental fees; interest charges; fees and expenses of the Fund's independent
accountants and legal counsel; trade association membership dues; fees and
expenses of any custodian (including maintenance of books and accounts and
calculation of the net asset value of shares of the Fund), transfer agent,
registrar and dividend disbursing agent of the Fund; expenses of issuing,
selling, redeeming, registering and qualifying for sale shares of beneficial
interest in the Fund; expenses of preparing and printing share certificates,
prospectuses and reports to shareholders, notices, proxy statements and reports
to regulatory agencies; the cost of office supplies, including stationery;
travel expenses of all officers, trustees and employees; insurance premiums;
brokerage and other expenses of executing portfolio transactions; expenses of
shareholders' meetings; organizational expenses; and extraordinary expenses.
4. (a) The Adviser shall provide to the Fund investment guidance and policy
direction in connection with the management of the Portfolios of the Fund,
including oral and written research, analysis, advice, and statistical and
economic data and information.
Consistent with the investment objectives, policies and restrictions
applicable to the Fund and its Portfolios, the Adviser will determine the
securities and other assets to be purchased or sold by each Portfolio of the
Fund and will determine what portion of each Portfolio shall be invested in
securities or other assets, and what portion, if any, should be held uninvested.
The Fund will have the benefit of the investment analysis and research, the
review of current economic conditions and trends and the consideration of
long-range investment policy generally available to investment advisory clients
of the Adviser. It is understood that the Adviser will not use any inside
information pertinent to investment decisions undertaken in connection with this
Contract that may be in its possession or in the possession of any of its
affiliates, nor will the Adviser seek to obtain any such information.
<PAGE>
(b) The Adviser also shall provide to the officers of the Fund and the
Administrator administrative assistance in connection with the operation of the
Fund and the Portfolios, which shall include (i) compliance with all reasonable
requests of the Fund for information, including information required in
connection with the Fund's filings with the Securities and Exchange Commission
and state securities commissions, and (ii) such other services as the Adviser
shall from time to time determine, upon consultation with the Administrator, to
be necessary or useful to the administration of the Fund and the Portfolios.
(c) As manager of the assets of the Portfolios, the Adviser shall make
investments for the account of the Portfolios in accordance with the Adviser's
best judgment and within the investment objectives, policies, and restrictions
set forth in the Prospectus, the 1940 Act and the provisions of the Internal
Revenue Code relating to regulated investment companies, subject to policy
decisions adopted by the Fund's Board of Trustees.
(d) The Adviser shall furnish to the Fund's Board of Trustees periodic
reports on the investment performance of the Fund and its Portfolios and on the
performance of its obligations under this Contract and shall supply such
additional reports and information as the Fund's officers or Board of Trustees
shall reasonably request.
(e) On occasions when the Adviser deems the purchase or sale of a
security to be in the best interest of a Portfolio as well as other of its
clients, the Adviser, to the extent permitted by applicable law, may aggregate
the securities to be so sold or purchased in order to obtain the best execution
or lower brokerage commissions, if any. The Adviser may also on occasion
purchase or sell a particular security for one or more clients in different
amounts. On either occasion, and to the extent permitted by applicable law and
regulations, allocation of the securities so purchased or sold, as well as the
expenses incurred in the transaction, will be made by the Adviser in the manner
it considers to be the most equitable and consistent with its fiduciary
obligations to the Fund and to such other customers.
(f) The Adviser may cause a Portfolio to pay a broker which provides
brokerage and research services to the Adviser a commission for effecting a
securities transaction in excess of the amount another broker might have
charged. Such higher commissions may not be paid unless the Adviser determines
in good faith that the amount paid is reasonable in relation to the services
received in terms of the particular transaction or the Adviser's overall
responsibilities to the Fund and any other of the Adviser's clients.
5. The Adviser shall give the Fund the benefit of the Adviser's best
judgment and efforts in rendering services under this Contract. As an inducement
to the Adviser's undertaking to render these services, the Fund agrees that the
Adviser shall not be liable under this Contract for any mistake in judgment or
in any other event whatsoever, provided that nothing in this contract shall be
deemed to protect or purport to protect the Adviser against any liability to the
Fund or its shareholders to which the Adviser would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence in the performance
of the Adviser's duties under this contract or by reason of the Adviser's
reckless disregard of its obligations and duties hereunder.
<PAGE>
6. In consideration of the services to be rendered by the Adviser under
this Contract, each Portfolio of the Fund shall pay the Adviser a monthly fee on
the first business day of each month, based upon the average daily value (as
determined on each business day at the time set forth in the Prospectus for
determining net asset value per share) of the net assets of the Portfolio during
the preceding month, at the following annual rates:
Portion of average daily value
of net assets of each Portfolio Fee Rate
Assets up to $100 million 0.35%
Assets over $100 million to $500 million 0.30%
Assets over $500 million to $1 billion 0.25%
Assets over $1 billion 0.20%
If the fees payable to the Adviser pursuant to this paragraph 6 begin to
accrue before the end of any month or if this Contract terminates before the end
of any month, the fees for the period from that date to the end of that month or
from the beginning of that month to the date of termination, as the case may be,
shall be prorated according to the proportion which the period bears to the full
month in which the effectiveness or termination occurs. For purposes of
calculating the monthly fees, the value of the net assets of each Portfolio
shall be computed in the manner specified in the Prospectus for the computation
of net asset value. For purposes of this contract, a "business day" is any day
the New York Stock Exchange is open for trading.
7. If the aggregate expenses of every character incurred by, or allocated
to, the Fund in any fiscal year, other than interest, taxes, brokerage
commissions and other portfolio transaction expenses, other expenditures which
are capitalized in accordance with generally accepted accounting principles and
any extraordinary expense (including, without limitation, litigation and
indemnification expense), but including the fees payable under this contract
("includable expenses"), shall exceed the expense limitations applicable to the
Fund imposed by state securities laws or regulations thereunder, as these
limitations may be raised or lowered from time to time, the Adviser and the
Administrator shall jointly pay the Fund an amount equal to that excess. The
portion of such amount allocable between the Adviser and the Administrator shall
be subject to separate agreement between them. With respect to portions of a
fiscal year in which this Contract shall be in effect, the foregoing limitations
shall be prorated according to the proportion which that portion of the fiscal
year bears to the full fiscal year. At the end of each month of the Fund's
fiscal year, the Administrator will review the includable expenses accrued
during that fiscal year to the end of the period and shall estimate the
contemplated includable expenses for the balance of that fiscal year. If, as a
result of that review and estimation, it appears likely that the includable
expenses will exceed the limitations referred to in this paragraph 7 for a
fiscal year with respect to the Fund, the monthly fees relating to the Fund
payable to the Adviser under this Contract and to the Administrator under the
Administrative Services Contract for such month shall be reduced, in a
proportion agreed upon between the Adviser and the Administrator and subject to
a later reimbursement to reflect actual expenses, by an amount equal to a pro
rata portion (prorated on the basis of the remaining months of the fiscal year,
including the month just ended) of the amount by which the includable expenses
for the fiscal year (less an amount equal to the aggregate of actual reductions
made pursuant to this provision with respect to prior months of the fiscal year)
are expected to exceed the limitations provided in this paragraph 7. For
purposes of the foregoing, the value of the net assets of each Portfolio of the
Fund shall be computed in the manner specified in paragraph 6, and any payments
required to be made by the Adviser or the Administrator shall be made once a
year promptly after the end of the Fund's fiscal year.
<PAGE>
8. (a) This Contract shall become effective with respect to the Portfolios
on May 6, 1987 (and, with respect to any additional portfolio, the date of a
Supplement hereto) and shall continue in effect with respect to a Portfolio for
a period of more than two years from that date (or, with respect to any
additional portfolio, the date of the Supplement) only so long as the
continuance is specifically approved at least annually (i) by the vote of a
majority of the outstanding voting securities (as defined in the 1940 Act) of
the Portfolio or by the Fund's Board of Trustees and (ii) by the vote, cast in
person at a meeting called for the purpose, of a majority of the Fund's trustees
who are not parties to this Contract or "interested persons" (as defined in the
1940 Act) of any such party.
(b) This Contract may be terminated with respect to a Portfolio (or any
additional portfolio) at any time, without the payment of any penalty, by a vote
of a majority of the outstanding voting securities (as defined in the 1940 Act)
of the Portfolio or by a vote of a majority of the Fund's entire Board of
Trustees on 60 days' written notice to the Adviser or by the Adviser on 60 days'
written notice to the Fund. This Contract (or any Supplement hereto) shall
terminate automatically in the event of its assignment (as defined in the 1940
Act).
9. Except to the extent necessary to perform the Adviser's obligations
under this Contract, nothing herein shall be deemed to limit or restrict the
right of the Adviser, or any affiliate of the Adviser, or any employee of the
Adviser, to engage in any other business or to devote time and attention to the
management or other aspects of any other business, whether of a similar or
dissimilar nature, or to render services of any kind to any other corporation,
firm, individual or association.
10. The investment management services of the Adviser to the Fund under
this contract are not to be deemed exclusive as to the Adviser and the Adviser
will be free to render similar services to others.
11. This Contract shall be construed in accordance with the laws of the
State of California, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act.
12. The Declaration of Trust establishing the Fund, filed on February 19,
1987, a copy of which, together with all amendments thereto (the "Declaration"),
is on file in the Office of the Secretary of the Commonwealth of Massachusetts,
provides that the name "Pacific Investment Management Institutional Trust"
refers to the trustees under the Declaration collectively as trustees and not as
individuals or personally, and that no shareholder, trustee, officer, employee
or agent of the Fund shall be subject to claims against or obligations of the
Fund to any extent whatsoever, but that the Fund estate only shall be liable.
<PAGE>
If the foregoing correctly sets forth the agreement between the Fund and
the Adviser, please so indicate by signing and returning to the Fund the
enclosed copy hereof.
Very truly yours,
PACIFIC INVESTMENT MANAGEMENT
INSTITUTIONAL TRUST
By:__________________
Title:_______________
ACCEPTED:
PACIFIC INVESTMENT MANAGEMENT
COMPANY
By:________________
Title:_____________
SUPPLEMENT TO
INVESTMENT ADVISORY CONTRACT
Pacific Investment Management Institutional Trust
840 Newport Center Drive
Newport Beach, California 92660
__________________, 1990
Pacific Investment
Management Company
840 Newport Center Drive
Newport Beach, California 92660
RE: Global Portfolio
Dear Sirs:
This will confirm the agreement between the undersigned (the "Fund") and
Pacific Investment Management Company (the "Adviser") as follows:
1. The Fund is an open-end management investment company organized as a
Massachusetts business trust and consisting of such separate investment
portfolios as have been or may be established by the Trustees of the Fund from
time to time. A separate class of shares of beneficial interest in the Fund is
offered to investors with respect to each investment portfolio. The Global
Portfolio (the "Portfolio") is a separate investment portfolio of the Fund.
2. The Fund and the Adviser have entered into an Investment Advisory
Contract ("Contract") dated May 6, 1987, pursuant to which the Fund has employed
the Adviser to provide investment advisory and other services specified in the
Contract, and the Adviser has accepted such employment.
3. As provided in paragraph 1 of the Contract, the Fund hereby appoints the
Adviser to serve as Investment Adviser with respect to the Portfolio, and the
Adviser accepts such appointment, the terms and conditions of such employment to
be governed by the Contract, which is hereby incorporated herein by reference.
4. The term "Portfolio" as used in the contract shall, for purposes of this
Supplement, pertain to the Portfolio.
5. As provided in paragraph 6 of the Contract and subject to further
conditions as set forth therein, the Fund shall with respect to the Portfolio
pay the Adviser a monthly fee on the first business day of each month based upon
the average daily value (as determined on each business day at the time set
forth in the Prospectus for determining net asset value per share) of the net
assets of the Portfolio during the preceding month, at the following annual
rates:
Portion of Average Daily Value of Net Assets of the Portfolio Fee Rate
Assets up to $300 million 0.35%
Assets over $300 million to $900 million 0.30%
Assets over $900 million to $1.5 billion 0.25%
Assets over $1.5 billion 0.20%
6. This Supplement and the Contract shall become effective with respect to
the Portfolio on __________, 1990, and shall thereafter continue in effect with
respect to the Portfolio for a period of more than two years from such date only
so long as the continuance is specifically approved at least annually (a) by the
vote of a majority of the outstanding voting securities of the Portfolio (as
defined in the 1940 Act) or by the Fund's Board of Trustees and (b) by the vote,
cast in person at a meeting called for that purpose, of a majority of the Fund's
Trustees who are not parties to this Contract or "interested persons" (as
defined in the Investment Company Act of 1940 (111940 Act")) of any such party.
This Contract may be terminated with respect to the Fund at any time, without
the payment of any penalty, by vote of a majority of the outstanding voting
securities of the Portfolio (as defined in the 1940 Act) or by a vote of a
majority of the Fund's entire Board of Trustees on 60 days' written notice to
the Adviser. This Contract shall terminate automatically in the event of its
assignment (as defined in the 1940 Act).
<PAGE>
If the foregoing correctly sets forth the agreement between the Fund and
the Adviser, please so indicate by signing and returning to the Fund the
enclosed copy hereof.
Very truly yours,
Pacific Investment management
Institutional Trust
BY:___________________
TITLE:
ACCEPTED:
Pacific Investment
Management Company
BY:_____________________
TITLE:
<PAGE>
SUPPLEMENT TO
INVESTMENT ADVISORY CONTRACT
Pacific Investment Management Institutional Trust
840 Newport Center Drive
Newport Beach, California 92660
____________, 1990
Pacific Investment
Management Company
840 Newport Center Drive
Newport Beach, California 92660
RE: Foreign Portfolio
Dear Sirs:
This will confirm the agreement between the undersigned (the "Fund") and
Pacific Investment Management Company (the "Adviser") as follows:
1. The Fund is an open-end management investment,company organized as a
Massachusetts business trust and consisting of such separate investment
portfolios as have been or may be established by the Trustees of the Fund from
time to time. A separate class of shares of beneficial interest in the Fund is
offered to investors with respect to each investment portfolio. The Foreign
Portfolio (the "Portfolio") is a separate investment portfolio of the Fund.
2. The Fund and the Adviser have entered into an Investment Advisory
Contract ("Contract") dated May 6, 1987, pursuant to which the Fund has employed
the Adviser to provide investment advisory and other services specified in the
Contract, and the Adviser has accepted such employment.
3. As provided in paragraph 1 of the Contract, the Fund hereby appoints the
Adviser to serve as Investment Adviser with respect to the Portfolio, and the
Adviser accepts such appointment, the terms and conditions of such employment to
be governed by the Contract, which is hereby incorporated herein by reference.
4. The term "Portfolio" as used in the Contract shall, for purposes of this
Supplement, pertain to the Portfolio.
5. As provided in paragraph 6 of the Contract and subject to further
conditions as set forth therein, the Fund shall with respect to the Portfolio
pay the Adviser a monthly fee on the first business day of each month based upon
the average daily value (as determined on each business day at the time set
forth in the Prospectus for determining net asset value per share) of the net
assets of the Portfolio during the preceding month, at the following annual
rates:
Portion of Average Daily Value of Net Assets of the Portfolio Fee Rate
Assets up to $300 million 0.35%
Assets over $300 million to $900 million 0.30%
Assets over $900 million to $1.5 billion 0.25%
Assets over $1.5 billion 0.20%
6. This Supplement and the Contract shall become effective with respect to
the Portfolio on ___________, 1990, and shall thereafter continue in effect with
respect to the Portfolio for a period of more than two years from such date only
so long as the continuance is specifically approved at least annually (a) by the
vote of a majority of the outstanding voting securities of the Portfolio (as
defined in the 1940 Act) or by the Fund's Board of Trustees and (b) by the vote,
cast in person at a meeting called for that purpose, of a majority of the Fund's
Trustees who are not parties to this Contract or "interested persons" (as
defined in the Investment Company Act of 1940 (111940 Act")) of any such party.
This Contract may be terminated with respect to the Fund at any time, without
the payment of any penalty, by vote of a majority of the outstanding voting
securities of the Portfolio (as defined in the 1940 Act) or by a vote of a
majority of the Fund's entire Board of Trustees on 60 days' written notice to
the Adviser. This Contract shall terminate automatically in the event of its
assignment (as defined in the 1940 Act).
<PAGE>
If the foregoing correctly sets forth the agreement between the Fund and
the Adviser, please so indicate by signing and returning to the Fund the
enclosed copy hereof.
Very truly yours,
Pacific Investment Management
Institutional Trust
BY: ___________________________
TITLE:
ACCEPTED:
Pacific Investment
Management Company
BY: ____________________________
TITLE:
<PAGE>
SUPPLEMENT TO
INVESTMENT ADVISORY CONTRACT
Pacific Investment Management Institutional Trust
840 Newport Center Drive
Newport Beach, California 92660
__________________, 1990
Pacific Investment
Management Company
840 Newport Center Drive
Newport Beach, California 92660
RE: Low Duration Divestiture Portfolio
Dear Sirs:
This will confirm the agreement between the undersigned (the "Fund") and
Pacific Investment Management Company (the "Adviser") as follows:
1. The Fund is an open-end management investment. company organized as a
Massachusetts business trust and consisting of such separate investment
portfolios as have been or may be established by the Trustees of the Fund from
time to time. A separate class of shares of beneficial interest in the Fund is
offered to investors with respect to each investment portfolio. The Low Duration
Divestiture Portfolio (the "Portfolio") is a separate investment portfolio of
the Fund.
2. The Fund and the Adviser have entered into an Investment Advisory
Contract ("Contract") dated May 6, 1987, pursuant to which the Fund has employed
the Adviser to provide investment advisory and other services specified in the
Contract, and the Adviser has accepted such employment.
3. As provided in paragraph 1 of the Contract, the Fund hereby appoints the
Adviser to serve as Investment Adviser with respect to the Portfolio, and the
Adviser accepts such appointment, the terms and conditions of such employment to
be governed by the Contract, which is hereby incorporated herein by reference.
4. The term "Portfolio" as used in the Contract shall, for purposes of this
Supplement, pertain to the Portfolio.
5. As provided in paragraph 6 of the Contract and subject to further
conditions as.set forth therein, the Fund shall with respect to the Portfolio
pay the Adviser a monthly fee on the first business day of each month based upon
the average daily value (as determined on each business day at the time set
forth in the Prospectus for determining net asset value per share) of the net
assets of the Portfolio during the preceding month, at the following annual
rates:
Portion of Average Daily Value of Net Assets of the Portfolio Fee Rate
Assets up to $100 million 0.35%
Assets over $100 million to $500 million 0.30%
Assets over $500 million to $1 billion 0.25%
Assets over $1 billion 0.20%
6. This Supplement and the Contract shall become effective with respect to
the Portfolio on ________, 1990, and shall thereafter continue in effect with
respect to the Portfolio for a period of more than two years from such date only
so long as the continuance is specifically approved at least annually `(a) by
the vote of a majority of the outstanding voting securities of the Portfolio (as
defined in the 1940 Act) or by the Fund's Board of Trustees and (b) by the vote,
cast in person at a meeting called for that purpose, of a majority of the Fund's
Trustees who are not parties to this Contract or "interested persons" (as
defined in the Investment Company Act of 1940 (111940 Act")) of any such party.
This Contract may be terminated with respect to the Fund at any time, without
the payment of any penalty, by vote of a majority of the outstanding voting
securities of the Portfolio (as defined in the 1940 Act) or by a vote of a
majority of the Fund's entire Board of Trustees on 60 days' written notice to
the Adviser. This Contract shall terminate automatically in the event of its
assignment (as defined in the 1940 Act).
<PAGE>
If the foregoing correctly sets forth the agreement between the Fund and
the Adviser, please so indicate by signing and returning to the Fund the
enclosed copy hereof.
Very truly yours,
Pacific Investment Management
Institutional Trust
BY: ____________________________
TITLE:
ACCEPTED:
Pacific Investment
Management Company
BY: ___________________________
TITLE:
<PAGE>
SUPPLEMENT TO
INVESTMENT ADVISORY CONTRACT
Pacific Investment Management Institutional Trust
840 Newport Center Drive
Newport Beach, California 92660
___________, 1990
Pacific Investment
Management Company
840 Newport Center Drive
Newport Beach, California 92660
RE: Total Return Divestiture Portfolio
Dear Sirs:
This will confirm the agreement between the undersigned (the "Fund") and
Pacific Investment Management Company (the "Adviser") as follows:
1. The Fund is an open-end management investment company organized as a
Massachusetts business trust and consisting of such separate investment
portfolios as have been or may be established by the Trustees of the Fund from
time to time. A separate class of shares of beneficial interest in the Fund is
offered to investors with respect to each investment portfolio. The Total Return
Divestiture Portfolio (the "Portfolio") is a separate investment portfolio of
the Fund.
2. The Fund and the Adviser have entered into an Investment Advisory
Contract ("Contract") dated May 6, 1987, pursuant to which the Fund has employed
the Adviser to provide investment advisory and other services specified in the
Contract, and the Adviser has accepted such employment.
3. As provided in paragraph 1 of the Contract, the Fund hereby appoints the
Adviser to serve as Investment Adviser with respect to the Portfolio, and the
Adviser accepts such appointment, the terms and conditions of such employment to
be governed by the Contract, which is hereby incorporated herein by reference.
4. The term "Portfolio" as used in the Contract shall, for purposes of this
Supplement, pertain to the Portfolio.
5. As provided in paragraph 6 of the Contract and subject to further
conditions as set forth therein, the Fund shall with respect to the Portfolio
pay the Adviser a monthly fee on the first business day of each month based upon
the average daily value (as determined on each business day at the time set
forth in the Prospectus for determining net asset value per share) of the net
assets of the Portfolio during the preceding month, at the following annual
rates:
<PAGE>
Portion of Average Daily Value of Net Assets of the Portfolio
Fee Rate
Assets up to $100 million 0.35%
Assets over $100 million to $500 million 0.30%
Assets over $500 million to $1 billion 0.25%
Assets over $1 billion 0.20%
6. This Supplement and the Contract shall become effective with respect to
the Portfolio on ________, 1990, and shall thereafter continue in effect with
respect to the Portfolio for a period of more than two years from such date only
so long as the continuance is specifically approved at least annually (a) by the
vote of a majority of the outstanding voting securities of the Portfolio (as
defined in the 1940 Act) or by the Fund's Board of Trustees and (b) by the vote,
cast in person at a meeting called for that purpose, of a majority of the Fund's
Trustees who are not parties to this Contract or "interested persons" (as
defined in the Investment Company Act of 1940 (111940 Act")) of any such party.
This Contract may be terminated with respect to the Fund at any time, without
the payment of any penalty, by vote of a majority of the outstanding voting
securities of the Portfolio (as defined in the 1940 Act) or by a vote of a
majority of the Fund's entire Board of Trustees on 60 days' written notice to
the Adviser. This Contract shall terminate automatically in the event of its
assignment (as defined in the 1940 Act).
If the foregoing correctly sets forth the agreement between the Fund and
the Adviser, please so indicate by signing and returning to the Fund the
enclosed copy hereof.
Very truly yours,
Pacific Investment Management
Institutional Trust
BY:___________________________
TITLE:
ACCEPTED:
Pacific Investment
Management Company
BY:_________________________
TITLE:
SUPPLEMENT TO
INVESTMENT ADVISORY CONTRACT
Pacific Investment Management Institutional Trust
840 Newport Center Drive
Newport Beach, California 92660
July __, 1991
Pacific Investment
Management Company
840 Newport Center Drive
Newport Beach, California 92660
RE: High Yield Portfolio
Dear Sirs:
This will confirm the agreement between the undersigned (the "Fund") and
Pacific Investment Management Company (the "Adviser") as follows:
1. The Fund is an open-end management investment company organized as a
Massachusetts business trust and consisting of such separate investment
portfolios as have been or may be established by the Trustees of the Fund from
time to time. A separate class of shares of beneficial interest in the Fund is
offered to investors with respect to each investment portfolio. The High Yield
Portfolio (the "Portfolio") is a separate investment portfolio of the Fund.
2. The Fund and the Adviser have entered into an Investment Advisory
Contract ("Contract") dated May 6, 1987, pursuant to which the Fund has employed
the Adviser to provide investment advisory and other services specified in the
Contract, and the Adviser has accepted such employment.
3. As provided in paragraph 1 of the Contract, the Fund hereby appoints the
Adviser to serve as Investment Adviser with respect to the Portfolio, and the
Adviser accepts such appointment, the terms and conditions of such employment to
be governed by the Contract, which is hereby incorporated herein by reference.
4. The term "Portfolio" as used in the Contract shall, for purposes of this
Supplement, pertain to the Portfolio.
<PAGE>
5. As provided in paragraph 6 of the Contract and subject to further
conditions as set forth therein, the Fund shall with respect to the Portfolio
pay the Adviser a monthly fee on the first business day of each month based upon
the average daily value (as determined on each business day at the time set
forth in the Prospectus for determining net asset value per share) of the net
assets of the Portfolio during the preceding month, at the following annual
rates:
Portion of Average Daily
Value of Net Assets of
the Portfolio Fee Rate
Assets up to $100 million 0.35%
Assets over $100 million to $500 million 0.30%
Assets over $500 million to $1 billion 0.25%
Assets over $1 billion 0.20%
6. This Supplement and the Contract shall become effective with respect to
the Portfolio on July __, 1991, and shall thereafter continue in effect with
respect to the Portfolio for a period of more than two years from such date only
so long as the continuance is specifically approved at least annually (a) by the
vote of a majority of the outstanding voting securities of the Portfolio (as
defined in the 1940 Act) or by the Fund's Board of Trustees and (b) by the vote,
cast in person at a meeting called for that purpose, of a majority of the Fund's
Trustees who are not parties to this Contract or "interested persons" (as
defined in the Investment Company Act of 1940 ("1940 Act")) of any such party.
This Contract may be terminated with respect to the Fund at any time, without
the payment of any penalty, by vote of a majority of the outstanding voting
securities of the Portfolio (as defined in the 1940 Act) or by a vote of a
majority of the Fund's entire Board of Trustees on 60 days' written notice to
the Adviser. This Contract shall terminate automatically in the event of its
assignment (as defined in the 1940 Act).
If the foregoing correctly sets forth the agreement between the Fund and
the Adviser, please so indicate by signing and returning to the Fund the
enclosed copy hereof.
Very truly yours,
Pacific Investment Management
Institutional Trust
BY:_____________________
TITLE:
ACCEPTED:
Pacific Investment
Management Company
BY:____________________
TITLE:
<PAGE>
SUPPLEMENT TO
INVESTMENT ADVISORY CONTRACT
Pacific Investment Management Institutional Trust
840 Newport Center Drive
Newport Beach, California 92660
July __, 1991
Pacific Investment
Management Company
840 Newport Center Drive
Newport Beach, California 92660
RE: Low Duration II Portfolio
Dear Sirs:
This will confirm the agreement between the undersigned (the "Fund") and
Pacific Investment Management Company (the "Adviser") as follows:
1. The Fund is an open-end management investment company organized as a
Massachusetts business trust and consisting of such separate investment
portfolios as have been or may be established by the Trustees of the Fund from
time to time. A separate class of shares of beneficial interest in the Fund is
offered to investors with respect to each investment portfolio. The Low Duration
II Portfolio (the "Portfolio") is a separate investment portfolio of the Fund.
2. The Fund and the Adviser have entered into an Investment Advisory
Contract ("Contract") dated May 6, 1987, pursuant to which the Fund has employed
the Adviser to provide investment advisory and other services specified in the
Contract, and the Adviser has accepted such employment.
3. As provided in paragraph 1 of the Contract, the Fund hereby appoints the
Adviser to serve as Investment Adviser with respect to the Portfolio, and the
Adviser accepts such appointment, the terms and conditions of such employment to
be governed by the Contract, which is hereby incorporated herein by reference.
4. The term "Portfolio" as used in the Contract shall, for purposes of this
Supplement, pertain to the Portfolio.
<PAGE>
5. As provided in paragraph 6 of the Contract and subject to further
conditions as set forth therein, the Fund shall with respect to the Portfolio
pay the Adviser a monthly fee on the first business day of each month based upon
the average daily value (as determined on each business day at the time set
forth in the Prospectus for determining net asset value per share) of the net
assets of the Portfolio during the preceding month, at the following annual
rates:
Portion of Average Daily
Value of Net Assets of
the Portfolio Fee Rate
Assets up to $100 million 0.35%
Assets over $100 million to $500 million 0.30%
Assets over $500 million to $1 billion 0.25%
Assets over $1 billion 0.20%
6. This Supplement and the Contract shall become effective with respect to
the Portfolio on July __, 1991, and shall thereafter continue in effect with
respect to the Portfolio for a period of more than two years from such date only
so long as the continuance is specifically approved at least annually (a) by the
vote of a majority of the outstanding voting securities of the Portfolio (as
defined in the 1940 Act) or by the Fund's Board of Trustees and (b) by the vote,
cast in person at a meeting called for that purpose, of a majority of the Fund's
Trustees who are not parties to this Contract or "interested persons" (as
defined in the Investment Company Act of 1940 ("1940 Act")) of any such party.
This Contract may be terminated with respect to the Fund at any time, without
the payment of any penalty, by vote of a majority of the outstanding voting
securities of the Portfolio (as defined in the 1940 Act) or by a vote of a
majority of the Fund's entire Board of Trustees on 60 days' written notice to
the Adviser. This Contract shall terminate automatically in the event of its
assignment (as defined in the 1940 Act).
If the foregoing correctly sets forth the agreement between the Fund and
the Adviser, please so indicate by signing and returning to the Fund the
enclosed copy hereof.
Very truly yours,
Pacific Investment Management
Institutional Trust
BY:__________________
TITLE:
ACCEPTED:
Pacific Investment
Management Company
BY:________________
TITLE:
<PAGE>
SUPPLEMENT TO
INVESTMENT ADVISORY CONTRACT
Pacific Investment Management Institutional Trust
840 Newport Center Drive
Newport Beach, California 92660
July __, 1991
Pacific Investment
Management Company
840 Newport Center Drive
Newport Beach, California 92660
RE: Total Return II Portfolio
Dear Sirs:
This will confirm the agreement between the undersigned (the "Fund") and
Pacific Investment Management Company (the "Adviser") as follows:
1. The Fund is an open-end management investment company organized as a
Massachusetts business trust and consisting of such separate investment
portfolios as have been or may be established by the Trustees of the Fund from
time to time. A separate class of shares of beneficial interest in the Fund is
offered to investors with respect to each investment portfolio. The Total Return
II Portfolio (the "Portfolio") is a separate investment portfolio of the Fund.
2. The Fund and the Adviser have entered into an Investment Advisory
Contract ("Contract") dated May 6, 1987, pursuant to which the Fund has employed
the Adviser to provide investment advisory and other services specified in the
Contract, and the Adviser has accepted such employment.
3. As provided in paragraph 1 of the Contract, the Fund hereby appoints the
Adviser to serve as Investment Adviser with respect to the Portfolio, and the
Adviser accepts such appointment, the terms and conditions of such employment to
be governed by the Contract, which is hereby incorporated herein by reference.
4. The term "Portfolio" as used in the Contract shall, for purposes of this
Supplement, pertain to the Portfolio.
<PAGE>
5. As provided in paragraph 6 of the Contract and subject to further
conditions as set forth therein, the Fund shall with respect to the Portfolio
pay the Adviser a monthly fee on the first business day of each month based upon
the average daily value (as determined on each business day at the time set
forth in the Prospectus for determining net asset value per share) of the net
assets of the Portfolio during the preceding month, at the following annual
rates:
Portion of Average Daily
Value of Net Assets of
the Portfolio Fee Rate
Assets up to $100 million 0.35%
Assets over $100 million to $500 million 0.30%
Assets over $500 million to $1 billion 0.25%
Assets over $1 billion 0.20%
6. This Supplement and the Contract shall become effective with respect to
the Portfolio on July __, 1991, and shall thereafter continue in effect with
respect to the Portfolio for a period of more than two years from such date only
so long as the continuance is specifically approved at least annually (a) by the
vote of a majority of the outstanding voting securities of the Portfolio (as
defined in the 1940 Act) or by the Fund's Board of Trustees and (b) by the vote,
cast in person at a meeting called for that purpose, of a majority of the Fund's
Trustees who are not parties to this Contract or "interested persons" (as
defined in the Investment Company Act of 1940 ("1940 Act")) of any such party.
This Contract may be terminated with respect to the Fund at any time, without
the payment of any penalty, by vote of a majority of the outstanding voting
securities of the Portfolio (as defined in the 1940 Act) or by a vote of a
majority of the Fund's entire Board of Trustees on 60 days' written notice to
the Adviser. This Contract shall terminate automatically in the event of its
assignment (as defined in the 1940 Act).
If the foregoing correctly sets forth the agreement between the Fund and
the Adviser, please so indicate by signing and returning to the Fund the
enclosed copy hereof.
Very truly yours,
Pacific Investment Management
Institutional Trust
BY:____________________
TITLE:
ACCEPTED:
Pacific Investment
Management Company
BY:____________________
TITLE:
SUPPLEMENT TO
INVESTMENT ADVISORY CONTRACT
Pacific Investment Management Institutional Trust
840 Newport Center Drive
Newport Beach, California 92660
______________, 1991
Pacific Investment
Management Company
840 Newport Center Drive
Newport Beach, California 92660
RE: Income and Capital Preservation Portfolio I
Dear Sirs:
This will confirm the agreement between the undersigned (the "Fund") and
Pacific Investment Management Company (the "Adviser") as follows:
1. The Fund is an open-end management investment company organized as a
Massachusetts business trust and consisting of such separate investment
portfolios as have been or may be established by the Trustees of the Fund from
time to time. A separate class of shares of beneficial interest in the Fund is
offered to investors with respect to each investment portfolio. The Income and
Capital Preservation Portfolio I (the "Portfolio") is a separate investment
portfolio of the Fund.
2. The Fund and the Adviser have entered into an Investment Advisory
Contract ("Contract") dated May 6, 1987, pursuant to which the Fund has employed
the Adviser to provide investment advisory and other services specified in the
Contract, and the Adviser has accepted such employment.
3. As provided in paragraph 1 of the Contract, the Fund hereby appoints the
Adviser to serve as Investment Adviser with respect to the Portfolio, and the
Adviser accepts such appointment, the terms and conditions of such employment to
be governed by the Contract, which is hereby incorporated herein by reference.
4. The term "Portfolio" as used in the Contract shall, for purposes of this
Supplement, pertain to the Portfolio.
<PAGE>
5. As provided in paragraph 6 of the Contract and subject to further
conditions as set forth therein, the Fund shall with respect to the Portfolio
pay the Adviser a monthly fee on the first business day of each month based upon
the average daily value (as determined on each business day at the time set
forth in the Prospectus for determining net asset value per share) of the net
assets of the Portfolio during the preceding month, at the following annual
rates:
Portion of Average Daily
Value of Net Assets of
the Portfolio Fee Rate
Assets up to $100 million 0.35%
Assets over $100 million to $500 million 0.30%
Assets over $500 million to $1 billion 0.25%
Assets over $1 billion 0.20%
6. This Supplement and the Contract shall become effective with respect to
the Portfolio on , 1991, and shall thereafter continue in effect with respect to
the Portfolio for a period of more than two years from such date only so long as
the continuance is specifically approved at least annually (a) by the vote of a
majority of the outstanding voting securities of the Portfolio (as defined in
the 1940 Act) or by the Fund's Board of Trustees and (b) by the vote, cast in
person at a meeting called for that purpose, of a majority of the Fund's
Trustees who are not parties to this Contract or "interested persons" (as
defined in the Investment Company Act of 1940 ("1940 Act")) of any such party.
This Contract may be terminated with respect to the Fund at any time, without
the payment of any penalty, by vote of a majority of the outstanding voting
securities of the Portfolio (as defined in the 1940 Act) or by a vote of a
majority of the Fund's entire Board of Trustees on 60 days' written notice to
the Adviser. This Contract shall terminate automatically in the event of its
assignment (as defined in the 1940 Act).
If the foregoing correctly sets forth the agreement between the Fund and
the Adviser, please so indicate by signing and returning to the Fund the
enclosed copy hereof.
Very truly yours,
Pacific Investment Management
Institutional Trust
BY:____________________
TITLE:
ACCEPTED:
Pacific Investment
Management Company
BY:_____________________
TITLE:
<PAGE>
SUPPLEMENT TO
INVESTMENT ADVISORY CONTRACT
Pacific Investment Management Institutional Trust
840 Newport Center Drive
Newport Beach, California 92660
_________________, 1991
Pacific Investment
Management Company
840 Newport Center Drive
Newport Beach, California 92660
RE: Income and Capital Preservation Portfolio II
Dear Sirs:
This will confirm the agreement between the undersigned (the "Fund") and
Pacific Investment Management Company (the "Adviser") as follows:
1. The Fund is an open-end management investment company organized as a
Massachusetts business trust and consisting of such separate investment
portfolios as have been or may be established by the Trustees of the Fund from
time to time. A separate class of shares of beneficial interest in the Fund is
offered to investors with respect to each investment portfolio. The Income and
Capital Preservation Portfolio II (the "Portfolio") is a separate investment
portfolio of the Fund.
2. The Fund and the Adviser have entered into an Investment Advisory
Contract ("Contract") dated May 6, 1987, pursuant to which the Fund has employed
the Adviser to provide investment advisory and other services specified in the
Contract, and the Adviser has accepted such employment.
3. As provided in paragraph 1 of the Contract, the Fund hereby appoints the
Adviser to serve as Investment Adviser with respect to the Portfolio, and the
Adviser accepts such appointment, the terms and conditions of such employment to
be governed by the Contract, which is hereby incorporated herein by reference.
4. The term "Portfolio" as used in the Contract shall, for purposes of this
Supplement, pertain to the Portfolio.
<PAGE>
5. As provided in paragraph 6 of the Contract and subject to further
conditions as set forth therein, the Fund shall with respect to the Portfolio
pay the Adviser a monthly fee on the first business day of each month based upon
the average daily value (as determined on each business day at the time set
forth in the Prospectus for determining net asset value per share) of the net
assets of the Portfolio during the preceding month, at the following annual
rates:
Portion of Average Daily
Value of Net Assets of
the Portfolio Fee Rate
Assets up to $100 million 0.35%
Assets over $100 million to $500 million 0.30%
Assets over $500 million to $1 billion 0.25%
Assets over $1 billion 0.20%
6. This Supplement and the Contract shall become effective with respect to
the Portfolio on , 1991, and shall thereafter continue in effect with respect to
the Portfolio for a period of more than two years from such date only so long as
the continuance is specifically approved at least annually (a) by the vote of a
majority of the outstanding voting securities of the Portfolio (as defined in
the 1940 Act) or by the Fund's Board of Trustees and (b) by the vote, cast in
person at a meeting called for that purpose, of a majority of the Fund's
Trustees who are not parties to this Contract or "interested persons" (as
defined in the Investment Company Act of 1940 ("1940 Act")) of any such party.
This Contract may be terminated with respect to the Fund at any time, without
the payment of any penalty, by vote of a majority of the outstanding voting
securities of the Portfolio (as defined in the 1940 Act) or by a vote of a
majority of the Fund's entire Board of Trustees on 60 days' written notice to
the Adviser. This Contract shall terminate automatically in the event of its
assignment (as defined in the 1940 Act).
If the foregoing correctly sets forth the agreement between the Fund and
the Adviser, please so indicate by signing and returning to the Fund the
enclosed copy hereof.
Very truly yours,
Pacific Investment Management
Institutional Trust
BY:___________________
TITLE:
ACCEPTED:
Pacific Investment
Management Company
BY:______________________
TITLE:
[Form of]
SUPPLEMENT TO
INVESTMENT ADVISORY CONTRACT
PIMCO Funds
840 Newport Center Drive
Newport Beach, California 92660
_____________, 1994
Pacific Investment
Management Company
840 Newport Center Drive
Newport Beach, California 92660
RE: Moderate Duration Fund
Dear Sirs:
This will confirm the agreement between the undersigned (the "Trust") and
Pacific Investment Management Company (the "Adviser") as follows:
1. The Trust is an open-end management investment company organized as a
Massachusetts business trust and consisting of such separate investment
portfolios as have been or may be established by the Trustees of the Trust from
time to time. A separate class of shares of beneficial interest in the Trust is
offered to investors with respect to each investment portfolio. The Moderate
Duration Fund (the "Fund") is a separate investment portfolio of the Trust.
2. The Trust and the Adviser have entered into an Investment Advisory
Contract ("Contract") dated May 6, 1987, as amended, pursuant to which the Trust
has employed the Adviser to provide investment advisory and other services
specified in the Contract, and the Adviser has accepted such employment.
3. As provided in paragraph 1 of the Contract, the Trust hereby appoints
the Adviser to serve as Investment Adviser with respect to the Fund, and the
Adviser accepts such appointment, the terms and conditions of such employment to
be governed by the Contract, which is hereby incorporated herein by reference.
4. The term "Portfolio" as used in the Contract shall, for purposes of this
Supplement, pertain to the Fund.
<PAGE>
5. As provided in paragraph 6 of the Contract and subject to further
conditions as set forth therein, the Trust shall with respect to the Fund pay
the Adviser a monthly fee on the first business day of each month based upon the
average daily value (as determined on each business day at the time set forth in
the Prospectus for determining net asset value per share) of the net assets of
the Fund during the preceding month, at the following annual rates:
Portion of Average Daily
Value of Net Assets of
the Fund Fee Rate
Assets up to $150 million 0.30%
Assets over $150 million 0.25%
6. This Supplement and the Contract shall become effective with respect to
the Fund on , 1994, and shall thereafter continue in effect with respect to the
Fund for a period of more than two years from such date only so long as the
continuance is specifically approved at least annually (a) by the vote of a
majority of the outstanding voting securities of the Fund (as defined in the
1940 Act) or by the Trust's Board of Trustees and (b) by the vote, cast in
person at a meeting called for that purpose, of a majority of the Trust's
Trustees who are not parties to this Contract or "interested persons" (as
defined in the Investment Company Act of 1940 ("1940 Act")) of any such party.
This Contract may be terminated with respect to the Trust at any time, without
the payment of any penalty, by vote of a majority of the outstanding voting
securities of the Fund (as defined in the 1940 Act) or by a vote of a majority
of the Trust's entire Board of Trustees on 60 days' written notice to the
Adviser. This Contract shall terminate automatically in the event of its
assignment (as defined in the 1940 Act).
If the foregoing correctly sets forth the agreement between the Trust and
the Adviser, please so indicate by signing and returning to the Trust the
enclosed copy hereof.
Very truly yours,
PIMCO Funds
BY:___________________
TITLE:
ACCEPTED:
Pacific Investment
Management Company
BY:______________
TITLE:
<PAGE>
[Form of]
SUPPLEMENT TO
INVESTMENT ADVISORY CONTRACT
PIMCO Funds
840 Newport Center Drive
Newport Beach, California 92660
____________, 1994
Pacific Investment
Management Company
840 Newport Center Drive
Newport Beach, California 92660
RE: VersaSTYLE Fund
Dear Sirs:
This will confirm the agreement between the undersigned (the "Trust") and
Pacific Investment Management Company (the "Adviser") as follows:
1. The Trust is an open-end management investment company organized as a
Massachusetts business trust and consisting of such separate investment
portfolios as have been or may be established by the Trustees of the Trust from
time to time. A separate class of shares of beneficial interest in the Trust is
offered to investors with respect to each investment portfolio. The VersaSTYLE
Fund (the "Fund") is a separate investment portfolio of the Fund.
2. The Trust and the Adviser have entered into an Investment Advisory
Contract ("Contract") dated May 6, 1987, as amended, pursuant to which the Trust
has employed the Adviser to provide investment advisory and other services
specified in the Contract, and the Adviser has accepted such employment.
3. As provided in paragraph 1 of the Contract, the Trust hereby appoints
the Adviser to serve as Investment Adviser with respect to the Fund, and the
Adviser accepts such appointment, the terms and conditions of such employment to
be governed by the Contract, which is hereby incorporated herein by reference.
4. The term "Portfolio" as used in the Contract shall, for purposes of this
Supplement, pertain to the Fund.
<PAGE>
5. As provided in paragraph 6 of the Contract and subject to further
conditions as set forth therein, the Trust shall with respect to the Fund pay
the Adviser a monthly fee on the first business day of each month based upon the
average daily value (as determined on each business day at the time set forth in
the Prospectus for determining net asset value per share) of the net assets of
the Fund during the preceding month, at the following annual rates:
Portion of Average Daily
Value of Net Assets of
the Fund Fee Rate
Assets up to $150 million 0.45%
Assets over $150 million 0.40%
6. This Supplement and the Contract shall become effective with respect to
the Fund on , 1994, and shall thereafter continue in effect with respect to the
Fund for a period of more than two years from such date only so long as the
continuance is specifically approved at least annually (a) by the vote of a
majority of the outstanding voting securities of the Fund (as defined in the
1940 Act) or by the Trust's Board of Trustees and (b) by the vote, cast in
person at a meeting called for that purpose, of a majority of the Trust's
Trustees who are not parties to this Contract or "interested persons" (as
defined in the Investment Company Act of 1940 ("1940 Act")) of any such party.
This Contract may be terminated with respect to the Trust at any time, without
the payment of any penalty, by vote of a majority of the outstanding voting
securities of the Fund (as defined in the 1940 Act) or by a vote of a majority
of the Trust's entire Board of Trustees on 60 days' written notice to the
Adviser. This Contract shall terminate automatically in the event of its
assignment (as defined in the 1940 Act).
If the foregoing correctly sets forth the agreement between the Trust and
the Adviser, please so indicate by signing and returning to the Trust the
enclosed copy hereof.
Very truly yours,
PIMCO Funds
BY:_________________
TITLE:
ACCEPTED:
Pacific Investment
Management Company
BY:_________________
TITLE:
INVESTMENT ADVISORY CONTRACT
PIMCO Funds
840 Newport Center Drive
Newport Beach, California 92260
November ___, 1994
Pacific Investment Management Company
840 Newport Center Drive
Newport Beach, California 92260
Dear Sirs:
This will confirm the agreement between the undersigned (the "Trust")
and Pacific Investment Management Company (the "Adviser") as follows:
1. The Trust is an open-end investment company which currently has nineteen
separate investment portfolios, all of which are subject to this agreement: the
Short-Term Fund; the Low Duration Fund; the Low Duration Fund II; the Low
Duration Fund III; the Moderate Duration Fund; the Total Return Fund; the Total
Return Fund II; the Total Return Fund III; the Long-Term U.S. Government Fund;
the Commercial Mortgage Securities Fund; the High Yield Fund; the Global Fund;
the Foreign Fund; the International Fund; the Income and Capital Preservation
Fund; the Income and Capital Preservation Fund II; the StocksPLUS Fund; the
Growth Stock Fund; and the VersaSTYLE Equity Fund (the "Funds"). Additional
investment portfolios may be established in the future. This Contract shall
pertain to the Funds and to such additional investment portfolios as shall be
designated in Supplements to this Contract, as further agreed between the Trust
and the Adviser. A separate class of shares of beneficial interest in the Trust
is offered to investors in each Fund. The Trust engages in the business of
investing and reinvesting the assets of each Fund in the manner and in
accordance with the investment objective and restrictions applicable to that
Fund as specified in the currently effective Prospectus (the "Prospectus") for
the Trust included in the registration statement, as amended from time to time
(the "Registration Statement"), filed by the Trust under the Investment Company
Act of 1940 (the "1940 Act") and the Securities Act of 1933 ("1933 Act"). Copies
of the documents referred to in the preceding sentence have been furnished to
the Adviser. Any amendments to those documents shall be furnished to the Adviser
promptly. Pursuant to a Distribution Contract (the "Distribution Contract")
between the Trust and PIMCO Advisors Distribution Company (the "Distributor"),
the Fund has employed the Distributor to serve as principal underwriter for the
shares of beneficial interest of the Trust. Pursuant to an Administrative
Services Contract ("Administrative Services Contract") between the Trust and the
Adviser, the Trust has also retained the Adviser to provide the Fund with
administrative and other services.
<PAGE>
2. The Trust hereby appoints the Adviser to provide the investment advisory
services specified in this Contract and the Adviser hereby accepts such
appointment.
3. (a) The Adviser shall, at its expense, (i) employ or associate with
itself such persons as it believes appropriate to assist it in performing its
obligations under this contract and (ii) provide all services, equipment and
facilities necessary to perform its obligations under this Contract.
(b) The Trust shall be responsible for all of its expenses and
liabilities, including compensation of its Trustees who are not affiliated with
the Adviser, the Distributor or any of their affiliates; taxes and governmental
fees; interest charges; fees and expenses of the Trust's independent accountants
and legal counsel; trade association membership dues; fees and expenses of any
custodian (including maintenance of books and accounts and calculation of the
net asset value of shares of the Trust), transfer agent, registrar and dividend
disbursing agent of the Trust; expenses of issuing, selling, redeeming,
registering and qualifying for sale shares of beneficial interest in the Trust;
expenses of preparing and printing share certificates, prospectuses and reports
to shareholders, notices, proxy statements and reports to regulatory agencies;
the cost of office supplies, including stationery; travel expenses of all
officers, Trustees and employees; insurance premiums; brokerage and other
expenses of executing portfolio transactions; expenses of shareholders'
meetings; organizational expenses; and extraordinary expenses.
4. (a) The Adviser shall provide to the Trust investment guidance and
policy direction in connection with the management of the Funds, including oral
and written research, analysis, advice, and statistical and economic data and
information.
Consistent with the investment objectives, policies and restrictions
applicable to the Trust and its Funds, the Adviser will determine the securities
and other assets to be purchased or sold by each Fund of the Trust and will
determine what portion of each Fund shall be invested in securities or other
assets, and what portion, if any, should be held uninvested.
The Trust will have the benefit of the investment analysis and research,
the review of current economic conditions and trends and the consideration of
long-range investment policy generally available to investment advisory clients
of the Adviser. It is understood that the Adviser will not use any inside
information pertinent to investment decisions undertaken in connection with this
Contract that may be in its possession or in the possession of any of its
affiliates, nor will the Adviser seek to obtain any such information.
<PAGE>
(b) The Adviser also shall provide to the officers of the Trust
administrative assistance in connection with the operation of the Trust and the
Funds, which shall include (i) compliance with all reasonable requests of the
Trust for information, including information required in connection with the
Trust's filings with the Securities and Exchange Commission and state securities
commissions, and (ii) such other services as the Adviser shall from time to time
determine to be necessary or useful to the administration of the Trust and the
Funds.
(c) As manager of the assets of the Funds, the Adviser shall make
investments for the account of the Funds in accordance with the Adviser's best
judgment and within the investment objectives, policies, and restrictions set
forth in the Prospectus, the 1940 Act and the provisions of the Internal Revenue
Code relating to regulated investment companies, subject to policy decisions
adopted by the Trust's Board of Trustees.
(d) The Adviser shall furnish to the Trust's Board of Trustees periodic
reports on the investment performance of the Trust and its Funds and on the
performance of its obligations under this Contract and shall supply such
additional reports and information as the Trust's officers or Board of Trustees
shall reasonably request.
(e) On occasions when the Adviser deems the purchase or sale of a
security to be in the best interest of a Fund as well as other of its clients,
the Adviser, to the extent permitted by applicable law, may aggregate the
securities to be so sold or purchased in order to obtain the best execution of
the order or lower brokerage commissions, if any. The Adviser may also on
occasion purchase or sell a particular security for one or more clients in
different amounts. On either occasion, and to the extent permitted by applicable
law and regulations, allocation of the securities so purchased or sold, as well
as the expenses incurred in the transaction, will be made by the Adviser in the
manner it considers to be the most equitable and consistent with its fiduciary
obligations to the Trust and to such other customers.
(f) The Adviser may cause a Fund to pay a broker which provides brokerage
and research services to the Adviser a commission for effecting a securities
transaction in excess of the amount another broker might have charged. Such
higher commissions may not be paid unless the Adviser determines in good faith
that the amount paid is reasonable in relation to the services received in terms
of the particular transaction or the Adviser's overall responsibilities to the
Trust and any other of the Adviser's clients.
<PAGE>
5. The Adviser shall give the Trust the benefit of the Adviser's best
judgment and efforts in rendering services under this Contract. As an inducement
to the Adviser's undertaking to render these services, the Trust agrees that the
Adviser shall not be liable under this Contract for any mistake in judgment or
in any other event whatsoever, provided that nothing in this Contract shall be
deemed to protect or purport to protect the Adviser against any liability to the
Trust or its shareholders to which the Adviser would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence in the performance
of the Adviser's duties under this Contract or by reason of the Adviser's
reckless disregard of its obligations and duties hereunder.
6. In consideration of the services to be rendered by the Adviser under
this Contract, each Fund of the Trust shall pay the Adviser a monthly fee on the
first business day of each month, based upon the average daily value (as
determined on each business day at the time set forth in the Prospectus for
determining net asset value per share) of the net assets of the Fund during the
preceding month, at the following annual rates:
Fee Rate on Average Daily
Net Assets
Fund Up to $150 million Over $150 million
Commercial Mortgage Securities,
StocksPLUS and
VersaSTYLE Equity Funds....... 0.45% 0.40%
All Other Funds.......... 0.30% 0.25%
If the fees payable to the Adviser pursuant to this paragraph 6 begin to
accrue before the end of any month or if this Contract terminates before the end
of any month, the fees for the period from that date to the end of that month or
from the beginning of that month to the date of termination, as the case may be,
shall be prorated according to the proportion which the period bears to the full
month in which the effectiveness or termination occurs. For purposes of
calculating the monthly fees, the value of the net assets of each Fund shall be
computed in the manner specified in the Prospectus for the computation of net
asset value. For purposes of this Contract, a "business day" is any day the New
York Stock Exchange is open for trading.
<PAGE>
7. If the aggregate expenses of every character incurred by, or allocated
to, the Trust in any fiscal year, other than interest, taxes, brokerage
commissions and other portfolio transaction expenses, other expenditures which
are capitalized in accordance with generally accepted accounting principles and
any extraordinary expense (including, without limitation, litigation and
indemnification expense), but including the fees payable under this Contract
("includable expenses"), shall exceed the expense limitations applicable to the
Trust imposed by state securities laws or regulations thereunder, as these
limitations may be raised or lowered from time to time, the Adviser shall pay
the Trust an amount equal to that excess. With respect to portions of a fiscal
year in which this Contract shall be in effect, the foregoing limitations shall
be prorated according to the proportion which that portion of the fiscal year
bears to the full fiscal year. At the end of each month of the Trust's fiscal
year, the Adviser will review the includable expenses accrued during that fiscal
year to the end of the period and shall estimate the contemplated includable
expenses for the balance of that fiscal year. If, as a result of that review and
estimation, it appears likely that the includable expenses will exceed the
limitations referred to in this paragraph 7 for a fiscal year with respect to
the Trust, the monthly fees relating to the Trust payable to the Adviser under
this Contract and under the Administrative Services Contract for such month
shall be reduced, subject to a later reimbursement to reflect actual expenses,
by an amount equal to a pro rata portion (prorated on the basis of the remaining
months of the fiscal year, including the month just ended) of the amount by
which the includable expenses for the fiscal year (less an amount equal to the
aggregate of actual reductions made pursuant to this provision with respect to
prior months of the fiscal year) are expected to exceed the limitations provided
in this paragraph 7. For purposes of the foregoing, the value of the net assets
of each Fund of the Trust shall be computed in the manner specified in paragraph
6, and any payments required to be made by the Adviser shall be made once a year
promptly after the end of the Trust's fiscal year.
8. (a) This Contract shall become effective with respect to the Funds on
November __, 1994 (and, with respect to any additional fund, the date of a
Supplement hereto) and shall continue in effect with respect to a Fund for a
period of more than two years from that date (or, with respect to any additional
fund, the date of the Supplement) only so long as the continuance is
specifically approved at least annually (i) by the vote of a majority of the
outstanding voting securities (as defined in the 1940 Act) of the Fund or by the
Trust's Board of Trustees and (ii) by the vote, cast in person at a meeting
called for the purpose, of a majority of the Trust's trustees who are not
parties to this Contract or "interested persons" (as defined in the 1940 Act) of
any such party.
<PAGE>
(b) This Contract may be terminated with respect to a Fund (or any
additional fund) at any time, without the payment of any penalty, by a vote of a
majority of the outstanding voting securities (as defined in the 1940 Act) of
the Fund or by a vote of a majority of the Trust's entire Board of Trustees on
60 days' written notice to the Adviser or by the Adviser on 60 days' written
notice to the Trust. This Contract (or any Supplement hereto) shall terminate
automatically in the event of its assignment (as defined in the 1940 Act).
9. Except to the extent necessary to perform the Adviser's obligations
under this Contract, nothing herein shall be deemed to limit or restrict the
right of the Adviser, or any affiliate of the Adviser, or any employee of the
Adviser, to engage in any other business or to devote time and attention to the
management or other aspects of any other business, whether of a similar or
dissimilar nature, or to render services of any kind to any other corporation,
firm, individual or association.
10. The investment management services of the Adviser to the Trust under
this contract are not to be deemed exclusive as to the Adviser and the Adviser
will be free to render similar services to others.
11. This Contract shall be construed in accordance with the laws of the
State of California, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act.
12. The Declaration of Trust establishing the Trust, dated February 19,
1987, a copy of which, together with all amendments thereto (the "Declaration"),
is on file in the Office of the Secretary of the Commonwealth of Massachusetts,
provides that the name "PIMCO Funds" refers to the trustees under the
Declaration collectively as trustees and not as individuals or personally, and
that no shareholder, trustee, officer, employee or agent of the Trust shall be
subject to claims against or obligations of the Trust to any extent whatsoever,
but that the Trust estate only shall be liable.
If the foregoing correctly sets forth the agreement between the Trust and
the Adviser, please so indicate by signing and returning to the Trust the
enclosed copy hereof.
Very truly yours,
PIMCO FUNDS
By:_________________
Title:
ACCEPTED:
PACIFIC INVESTMENT MANAGEMENT COMPANY
By:___________________
Title:
INVESTMENT ADVISORY CONTRACT
PIMCO Funds
840 Newport Center Drive
Nevport Beach, California 92260
November 22, 1994, as amended
____________, 1995
Pacific Investment Management Company
840 Newport Center Drive
Newport Beach, California 92260
Dear Sirs:
This will confirm the agreement between the undersigned and Pacific
Investment Management Company ("PIMCO" or the "Adviser") as follows. PIMCO Funds
(the "Trust") has entered into an Investment Advisory Contract (the "Contract")
with PIMCO dated November 22, 1994, pursuant to which PIMCO provides investment
advisory services to the Trust. This agreement amends Sections 3 and 6 of the
Contract as follows:
3. (a) The Adviser shall, at its expense, (i) employ or associate with
itself such persons as it believes appropriate to assist it in performing its
obligations under this contract and (ii) provide all services, equipment and
facilities necessary to perform its obligations under this-Contract.
(b) The Trust shall be responsible for all of its expenses and
liabilities, including compensation of its Trustees who are not affiliated with
the Adviser, the Distributor or any of their affiliates; taxes and governmental
fees; interest charges; fees and expenses of the Trust's independent accountants
and legal counsel; trade association membership dues; fees and expenses of any
custodian (including maintenance of books and accounts and calculation of the
net asset value of shares of the Trust) , transfer agent, registrar and dividend
disbursing agent of the Trust; expenses of issuing, selling, redeeming,
registering and qualifying for sale shares of beneficial interest in the Trust;
expenses of preparing and printing share certificates, prospectuses and reports
to shareholders, notices, proxy statements and reports to regulatory agencies;
the cost of office supplies, including stationery; travel expenses of all
officers, Trustees and employees; insurance premiums; brokerage and other
expenses of executing portfolio transactions; expenses of shareholders'
meetings; organizational expenses; and extraordinary expenses. Notwithstanding
the foregoing, the Trust may enter into a separate agreement, which shall be
controlling over this Contract, as amended, pursuant to which some or all of the
foregoing expenses of this Section 3(b) shall be the responsibility of the other
party or parties to that agreement.
6. In consideration of the services to be rendered by the Adviser under
this Contract, each Fund of the Trust shall pay the Adviser a monthly fee on the
first business day of each month, based upon the average daily value (as
determined on each business day at the time set forth in the Prospectus for
determining net asset value per share) of the net assets of the Fund during the
preceding month, at the following annual rates: Commercial Mortgage Securities,
StocksPLUS and VersaSTYLE Equity Funds: 0.40%; all other Funds: 0.25%.
<PAGE>
If the fees payable to the Adviser pursuant to this paragraph 6 begin to
accrue before the end of any month or if this Contract terminates before the end
of any month, the fees for the period from that date to the end of that month or
from the beginning of that month to the date of termination, as the case may be,
shall be prorated according to the proportion which the period bears to the full
month in which the effectiveness or termination occurs. For purposes of
calculating the monthly fees, the value of the net assets of each Fund shall be
computed in the manner specified in the Prospectus for the computation of net
asset value. For purposes of this Contract, a "business day" is any day the New
York Stock Exchange is open for trading.
If the foregoing correctly sets forth the agreement between the Trust and
the Adviser, please so indicate by signing and returning to the Trust the
enclosed copy hereof.
Very truly yours,
PIMCO FUNDS
By:_________________
Title:
ACCEPTED:
PACIFIC INVESTMENT MANAGEMENT COMPANY
By:___________________
Title:
CUSTODY AGREEMENT
AGREEMENT dated as of , between [NAME OF FUND] (the "Trust"), a
Massachusetts business trust, having its principal office and place of business
at [ADDRESS], and BOSTON SAFE DEPOSIT AND TRUST COMPANY (the "Custodian"), a
Massachusetts trust company with its principal place of business at One Boston
Place, Boston, Massachusetts 02108.
W I T N E S S E T H:
That for and in consideration of the mutual promises hereinafter set forth,
the Trust and the Custodian agree as follows:
. Definitions.
Whenever used in this Agreement or in any Schedules to this Agreement, the
following words and phrases, unless the context otherwise requires, shall
have the following meanings:
. "Authorized Person" shall be deemed to include the President, and any Vice
President, the Secretary, the Treasurer, or any other person, whether or
not any such person is an officer or employee of the Trust, duly authorized
by the Board of Trustees of the Trust to give Oral Instructions and Written
Instructions on behalf of the Trust and listed in the certification annexed
hereto as Appendix A or such other certification as may be received by the
Custodian from time to time.
<PAGE>
. "Book-Entry System" shall mean the Federal Reserve/Treasury book-entry
system for United States and federal agency Securities, its successor or
successors and its nominee or nominees.
. "Certificate" shall mean any notice, instruction or other instrument in
writing, authorized or required by this Agreement to be given to the
Custodian, which is actually received by the Custodian and signed on behalf
of the Trust by any two Authorized Persons or any two officers thereof.
. "Declaration of Trust" shall mean the Declaration of Trust of the Trust
dated as the same may be amended from time to time.
. "Depository" shall mean The Depository Trust Company ("DTC"), a clearing
agency registered with the Securities and Exchange Commission under Section
17(a) of the Securities Exchange Act of 1934, as amended, its successor of
successors and its nominee or nominees, in which the Custodian is hereby
specifically authorized to make deposits. The term "Depository" shall
further mean and include any other person to be named in a Certificate
authorized to act as a depository under the 1940 Act, its successor or
successors and its nominee or nominees.
. "Money Market Security" shall be deemed to include, without limitation,
debt obligations issued or guaranteed as to interest and principal by the
Government of the United States or agencies or instrumentalities thereof,
commercial paper, bank certificates of deposit, bankers' acceptances and
short-term corporate obligations, where the purchase or sale, and
repurchase and reverse repurchase agreements with respect to any of the
foregoing types of securities.
. "Oral Instructions" shall mean verbal instructions actually received by the
Custodian from a person reasonably believed by the Custodian to be an
Authorized Person.
<PAGE>
. "Portfolio" refers to the [NAMES OF PORTFOLIOS] or any such other separate
and distinct portfolio as may from time to time be created and designated
by the Trust in accordance with the provisions of the Declaration of Trust.
. "Prospectus" shall mean the Trust's current prospectus and statement of
additional information relating to the registration of the Trust's Shares
under the Securities Act of 1933, as amended.
. "Shares" refers to the shares of beneficial interest of each Portfolio of
the Trust.
. "Security" or "Securities" shall be deemed to include bonds, debentures,
notes, stocks, shares, evidences of indebtedness, and other securities and
investments from time to time owned by each Portfolio.
. "Transfer Agent" shall mean the person which performs the transfer agent,
dividend disbursing agent and shareholder servicing agent functions for the
Trust.
. "Written Instructions" shall mean a written communication actually received
by the Custodian from a person reasonably believed by the Custodian to be
an Authorized Person by any system whereby the receiver of such
communication is able to verify through codes or otherwise with a
reasonable degree of certainty the authenticity of the sender of such
communication.
<PAGE>
. The "1940 Act" refers to the Investment Company Act of 1940, and the Rules
and Regulations thereunder, all as amended from time to time.
. Appointment of Custodian.
. The Trust hereby constitutes and appoints the Custodian as custodian of all
the Securities and monies at the time owned by or in the possession of the
Trust and specifically allocated to a Portfolio during the period of this
Agreement.
. The Custodian hereby accepts appointment as such custodian for each
Portfolio and agrees to perform the duties thereof as hereinafter set
forth.
. Compensation.
. The Trust will compensate the Custodian for its services rendered under
this Agreement in accordance with the fees set forth in the Fee Schedule
annexed hereto as Schedule A and incorporated herein for the existing
Portfolios. Such Fee Schedule does not include out-of-pocket disbursements
of the Custodian for which the Custodian shall be entitled to bill
separately. Out-of-pocket disbursements shall include, but shall not be
limited to, the items specified in the Schedule of Out-of-Pocket charges
annexed hereto as Schedule B and incorporated herein, which schedule may be
modified by the Custodian upon not less than thirty days prior written
notice to the Trust.
. The parties hereto will agree upon the compensation for acting as custodian
for any Portfolio hereafter established and designated, and at the time
that the Custodian commences serving as such for said Portfolio, such
agreement shall be reflected in a Fee Schedule for that Portfolio, dated
and signed by an officer of each party hereto, which shall be attached to
Schedule A of this Agreement.
. Any compensation agreed to hereunder may be adjusted from time to time by
attaching to Schedule A of this Agreement a revised Fee Schedule, dated and
signed by an Authorized Officer of each party hereto.
. The Custodian will bill the Trust for each Portfolio as soon as practicable
after the end of each calendar month, and said billings will be detailed in
accordance with the Fee Schedule for each Portfolio. The Trust will
promptly pay to the Custodian the amount of such billing.
<PAGE>
. Custody of Cash and Securities.
. Receipt and Holding of Assets. The Trust will deliver or cause to be
delivered to the Custodian all Securities and monies owned by it at any
time during the period of this Agreement and shall specify the Portfolio to
which the Securities and monies are to be specifically allocated. The
Custodian will not be responsible for such Securities and monies until
actually received by it. The Trust shall instruct the Custodian from time
to time in its sole discretion, by means of a Certificate, or, in
connection with the purchase or sale of Money Market Securities, by means
of Oral Instructions or a Certificate, as to the manner in which and in
what amounts Securities and monies of a Portfolio are to be deposited on
behalf of such Portfolio in the Book-Entry System or the Depository and
specifically allocated on the books of the Custodian to such Portfolio;
provided, however, that prior to the deposit of Securities of a Portfolio
in the Book-Entry System or the Depository, including a deposit in
connection with the settlement of a purchase or sale, the Custodian shall
have received a Certificate specifically approving such deposits by the
Custodian in the Book-Entry System or the Depository. Securities and monies
of the Trust deposited in the Book-Entry System or the Depository will be
represented in accounts which include only assets held by the Custodian for
customers, including but not limited to accounts in which the Custodian
acts in a fiduciary or representative capacity.
. Accounts and Disbursements. The Custodian shall establish and maintain a
separate account for each Portfolio and shall credit to the separate
account of each Portfolio all monies received by it for the account of such
Portfolio and shall disburse the same only:
. In payment for Securities purchased for such Portfolio, as provided in
Section 5 hereof;
. In payment of dividends or distributions with respect to the Shares of such
Portfolio, as provided in Section 7 hereof;
. In payment of original issue or other taxes with respect to the Shares of
such Portfolio, as provided in Section 8 hereof;
<PAGE>
. In payment for Shares which have been redeemed by such Portfolio, as
provided in Section 8 hereof;
. Pursuant to Certificates, or with respect to Money Market Securities, Oral
Instructions or Certificates, setting forth the name of such Portfolio, the
name and address of the person to whom the payment is to be made, the
amount to be paid and the purpose for which payment is to be made; or
. In payment of fees and in reimbursement of the expenses and liabilities of
the Custodian attributable to such Portfolio, as provided in Section 13(h)
hereof.
. Confirmation and Statements. Promptly after the close of business on each
day, the Custodian shall furnish the Trust with confirmations and a summary
of all transfers to or from the account of each Portfolio during said day.
Where securities purchased by a Portfolio are in a fungible bulk of
securities registered in the name of the Custodian (or its nominee) or
shown on the Custodian's account on the books of the Depository or the
Book-Entry System, the Custodian shall be book entry or otherwise identify
the quantity of those securities belonging to such Portfolio. At least
monthly, the Custodian shall furnish the Trust with a detailed statement of
the Securities and monies held for each Portfolio under this Agreement.
. Registration of Securities and Physical Separation. All Securities held for
a Portfolio which are issued or issuable only in bearer form, except such
Securities as are held in the Book-Entry System, shall be held by the
Custodian in that form; all other Securities held for a Portfolio may be
registered in the name of that Portfolio, in the name of any duly appointed
registered nominee of the Custodian as the Custodian may from time to time
determine, or in the name of the Book-Entry System or the Depository or
their successor or successors, or their nominee or nominees. The Trust
reserves the right to instruct the Custodian as to the method of
registration and safekeeping of the Securities of each Portfolio. The Trust
agrees to furnish to the Custodian appropriate instruments to enable the
Custodian to hold or deliver in proper form for transfer, or to register in
the name of its registered nominee or in the name of the Book-Entry System
or the Depository, any Securities which it may hold for the account of a
Portfolio and which may from time to time be registered in the name of a
Portfolio. The Custodian shall hold all such Securities specifically
allocated to a Portfolio which are not held in the Book-Entry System or the
Depository in a separate account for such Portfolio in the name of such
Portfolio physically segregated at all times from those of any other person
or persons.
<PAGE>
. Collection of Income and Other Matters Affecting Securities. Unless
otherwise instructed to the contrary by a Certificate, the Custodian by
itself, or through the use of the Book-Entry System or the Depository with
respect to Securities therein deposited, shall with respect to all
Securities held for a Portfolio in accordance with this Agreement:
. Collect all income due or payable;
. Present for payment and collect the amount payable upon all Securities
which may mature or be called, redeemed or retired, or otherwise become
payable;
. Surrender Securities in temporary form for definitive Securities;
. Execute any necessary declarations or certificates of ownership under the
Federal income tax laws or the laws or regulations of any other taxing
authority now or hereafter in effect; and
. Hold directly, or through the Book-Entry System or the Depository with
respect to Securities therein deposited, for the account of each Portfolio
all rights and similar Securities issued with respect to any securities
held by the Custodian hereunder for each Portfolio.
. Delivery of Securities and Evidence of Authority. Upon receipt of a
Certificate and not otherwise, except for subparagraphs 5, 6, 7, and 9
which may be effected by Oral or Written Instructions and confirmed by
Certificates, the Custodian, directly or through the use of the Book-Entry
System or the Depository, shall:
<PAGE>
. Execute and deliver or cause to be executed and delivered to such persons
as may be designated in such Certificate proxies, consents, authorizations,
and any other instruments whereby the authority of the Trust as owner of
any Securities may be exercise;
. Deliver or cause to be delivered any Securities held for a Portfolio in
exchange for other Securities or case issued or paid in connection the
liquidation, reorganization, refinancing, merger, consolidation or
recapitalization of any corporation, or the exercise of any conversion
privilege.
. Deliver or cause to be delivered any Securities held for a Portfolio to any
protective committee, reorganization committee or other person in
connection with the reorganization, refinancing, merger, consolidation or
recapitalization or sale of assets of any corporation, and receive and hold
under the terms of this Agreement in the separate account for each
Portfolio such certificates of deposit, interim receipts or other
instruments or documents as may be issued to it to evidence such delivery;
. Make or cause to be made such transfers or exchanges of the assets
specifically allocated to the separate account of a Portfolio and take such
other steps as shall be stated in said Certificate to be for the purpose of
effectuating any duly authorized plan of liquidation, reorganization,
merger, consolidation or recapitalization of the Trust;
. Deliver Securities owned by any Portfolio upon sale of such Securities for
the account of such Portfolio pursuant to Section 5;
. Deliver Securities owned by any Portfolio upon the receipt of payment in
connection with any repurchase agreement related to such Securities entered
into by such Portfolio;
. Deliver Securities owned by any Portfolio to the issuer thereof or its
agent when such Securities are called, redeemed, retired or otherwise
become payable; provided, however, that in any such case the cash or other
consideration is to be delivered to the Custodian;
<PAGE>
. Deliver Securities owned by any Portfolio for deliver in connection with
any loans of securities made by such Portfolio but only against receipt of
adequate collateral as agreed upon from time to time by the Custodian and
the Trust which may be in the form of cash or obligations issued by the
United States government, its agencies or instrumentalities;
. Deliver Securities owned by any Portfolio for delivery as security in
connection with any borrowings by such Portfolio requiring a pledge of
Portfolio assets, but only against receipt of amounts borrowed;
. Deliver Securities owned by any Portfolio upon receipt of instructions from
such Portfolio for deliver to the Transfer Agent or to the holders of
Shares in connection with distributions in kind, as may be described from
time to time in the Trust's Prospectus, in satisfaction of requests by
holders of Shares for repurchase or redemption; and
. Deliver Securities owned by any Portfolio for any other proper business
purpose, but only upon receipt of, in addition to Written Instructions, a
certified copy of a resolution of the Board of Trustees signed by an
Authorized Person and certified by the Secretary of the Trust, specifying
the Securities to be delivered, setting forth the purpose for which such
delivery is to be made, declaring such purpose to be a proper business
purpose, and naming the person or persons to whom delivery of such
Securities shall be made.
. Endorsement and Collection of Checks, Etc.. The Custodian is hereby
authorized to endorse and collect all checks, drafts or other orders for
the payment of money received by the Custodian for the account of a
Portfolio.
. Purchase and Sale of Investments of the Portfolios.
<PAGE>
. Promptly after each purchase of Securities for a Portfolio, the Trust shall
deliver to the Custodian (i) with respect to each purchase of Securities
which are not Money Market Securities, a Certificate, and (ii) with respect
to each purchase of Money market Securities, either a Certificate or Oral
Instructions, in either case specifying with respect to each purchase: (1)
the name of the Portfolio to which such Securities are to be specifically
allocated; (2) the name of the issuer and the title of the Securities; (3)
the number of shares or the principal amount purchased and accrued
interest, if any; (4) the date of purchase and settlement; (5) the purchase
price per unit; (6) the total amount payable upon such purchase; (7) the
name of the person from whom or the broker through whom the purchase was
made, if any; (8) whether or not such purchase is to be settled through the
Book-Entry System or the Depository; and (9) whether the Securities
purchase by or for a Portfolio and upon receipt of such Securities shall
pay out of the monies held for the account of such Portfolio the total
amount payable upon such purchase, provided that the same conforms to the
total amount payable as set forth in such Certificate or Oral Instructions.
. Promptly after each sale of Securities of a Portfolio, the Trust shall
deliver to the Custodian (i) with respect to each sale of Securities which
are not Money Market Securities, a Certificate, and (ii) with respect to
each sale of Money Market Securities, either a Certificate or Oral
Instructions, in either case specifying with respect to such sale: (1) the
mane of the Portfolio to which the Securities sold were specifically
allocated; (2) the name of the issuer and the title of the Securities; (3)
the number of shares or principal amount sold, and accrued interest, if
any; (4) the date of sale; (5) the sale price per unit; (6) the total
amount payable to the Portfolio upon such sale; (7) the name of the broker
through whom or the person to whom the sale was made; and (8) whether or
not such sale is to be settled through the Book-Entry System or the
Depository. The Custodian shall deliver or cause to be delivered the
Securities to the broker or other person designated by the Trust upon
receipt of the total amount payable to such Portfolio upon such sale,
provided that the same conforms to the total amount payable to such
Portfolio as set forth in such Certificate or such Oral Instructions.
Subject to the foregoing, the Custodian may accept payment in such form as
shall be satisfactory to it, and may deliver Securities and arrange for
payment in accordance with the customs prevailing among dealers in
Securities.
. Lending of Securities.
If any Portfolio is permitted by the terms of the Declaration of Trust and
as disclosed in its Prospects to lend Securities specifically allocated to
that Portfolio, with 24 hours after each loan of Securities, the Trust
shall deliver to the Custodian Written Instructions specifying with respect
to each such loan: (a) the Portfolio to which the loaned Securities are
specifically allocated; (b) the name of the issuer and the title of the
Securities; (c) the number of shares or the principal amount loaned; (d)
the date of loan and deliver; (e) the total amount to be delivered to the
Custodian, and specifically allocated to such Portfolio against the loan of
the Securities, including the amount of cash collateral and the premium, if
any, separately identified; (f) the name of the broker, dealer or financial
institution to which the loan was made; and (g) whether the Securities
loaned are to be delivered through the Book-Entry System or the Depository.
<PAGE>
Promptly after each termination of a loan of Securities specifically
allocated to a Portfolio, the Trust shall deliver to the Custodian Written
Instructions specifying with respect to each such loan termination and
return of Securities: (a) the name of the Portfolio to which such loaned
Securities are specifically allocated; (b) the name of the issuer and the
title of the Securities to be returned; (c) the number of shares or the
principal amount to be returned; (c) the number of shares or the principal
amount to be returned; (d) the date of termination; (e) the total amount to
be delivered by the Custodian (including the cash collateral for such
Securities minus any offsetting credits as described in said Written
Instructions); (f) the name of the broker, dealer or financial institution
from which the Securities will be returned; and (g) whether such return is
to be effected through the Book-Entry System or the Depository. The
Custodian shall receive all Securities returned from the broker, dealer or
financial institution to which such Securities were loaned and upon receipt
thereof shall pay, out of the monies specifically allocated to such
Portfolio, the total amount payable upon such return of Securities as set
forth in the Written Instructions. Securities returned to the Custodian
shall be held as they were prior to such loan.
. Payment of Dividends or Distributions.
. The Trust shall furnish to the Custodian the resolution of the Board of
Trustees of the Trust certified by the Secretary (i) authorizing the
declaration of dividends with respect to a Portfolio on a specified
periodic basis and authorizing the Custodian to rely on Oral or Written
Instructions specifying the date of the declaration of such dividend or
distribution, the date of payment thereof, the record date as of which
shareholders entitled to payment shall be determined, the amount payable
per share to the shareholders of record as of the record date and the total
amount payable to the Transfer Agent on the payment date, or (ii) setting
forth the date of declaration of any dividend or distribution by a
Portfolio, the date of payment thereof, the record date as of which
shareholders entitled to payment shall be determined, the amount payable
per share to the shareholders of record as of the record date and the total
amount payable to the Transfer Agent on the payment date.
. Upon the payment date specified in such resolution, Oral Instructions, or
Written Instructions, as the case may be, the Custodian shall pay out the
monies specifically allocated to and held for the account of the
appropriate Portfolio the total amount payable to the Transfer Agent of the
Trust.
. Sale and Redemption of Shares of the Portfolios.
. Whenever the Trust shall sell any Shares of a Portfolio, the Trust shall
deliver or cause to be delivered to the Custodian a Certificate duly
specifying:
. The name of the Portfolio whose Shares were sold;
. The number of Shares sold, trade date, and price; and
<PAGE>
. The amount of money to be received by the Custodian for the sale of such
Shares and specifically allocated to such Portfolio.
The Custodian understands and agrees that the Certificate may be furnished
subsequent to the purchase of Shares of a Portfolio and that the
information contained therein will be derived from the sales of Shares of
such Portfolio as reported to the Trust by the Transfer Agent.
. Upon receipt of such money from the Transfer Agent, the Custodian shall
credit such money to the separate account of the Portfolio specified in
subparagraph (1) of paragraph (a) of this Section 8.
. Upon issuance of any Shares of a Portfolio in accordance with the foregoing
provisions of this Section 8, the Custodian shall pay, out of the monies
specifically allocated and held for the account of such Portfolio, all
original issue or other taxes required to be paid in connection with such
issuance upon the receipt of a Certificate specifying the amount to be
paid.
. Except as provided hereafter, whenever any Shares of a Portfolio are
redeemed, the Trust shall cause the Transfer Agent to promptly furnish to
the Custodian Written Instructions, specifying:
. The name of the Portfolio whose Shares were redeemed;
. The number of Shares redeemed; and
. The amount to be paid for the Shares redeemed.
Any such Written Instructions shall be confirmed by a Certificate which the
Custodian understands and agrees may be furnished subsequent to the
redemption of Shares of a Portfolio. The Custodian further understands that
the information contained in such Certificate will be derived from the
redemption of Shares as reported to the Trust by the Transfer Agent.
<PAGE>
. Upon receipt from the Transfer Agent of advice setting forth the number of
Shares of a Portfolio received by the Transfer Agent for redemption and
that such Shares are valid and in good form for redemption, the Custodian
shall make payment to the Transfer Agent out of the monies specifically
allocated to and held for the account of the Portfolio specified in
subparagraph (1) of paragraph (d) of this Section 8 of the total amount
specified in the Certificate issued pursuant to paragraph (d) of this
Section 8.
. Notwithstanding the above provisions regarding the redemption of Shares,
whenever such Shares are redeemed pursuant to any check redemption
privilege which may from time to time be offered by the Trust, the
Custodian, unless otherwise instructed by a Certificate shall, upon receipt
of advice from the Trust or its agent stating that the redemption is in
good form for redemption in accordance with the check redemption procedure,
honor the check presented as part of such check redemption privilege out of
the monies specifically allocated to the Trust in such advice for such
purpose.
. Indebtedness.
. The Trust will cause to be delivered to the Custodian by any bank
(excluding the Custodian) from which the Trust borrows money for temporary
administrative or emergency purposes using Securities as collateral for
such borrowings, a notice or undertaking in the form currently employed by
any such bank setting forth the amount which such bank will loan to the
Trust against delivery of a stated amount of collateral. The Trust shall
promptly deliver to the Custodian Written or Oral Instructions stating with
respect to each such borrowing: (1) the name of the Portfolio for which the
borrowing is to be made; (2) the name of the bank; (3) the amount and terms
of the borrowing, which may be set forth by incorporating by reference an
attached promissory note, duly endorsed by the Trust, or other loan
agreement; (4) the time and date, if known, on which the loan is to be
entered into (the "borrowing date")' (5) the date on which the loan becomes
due and payable; (6) the total amount payable to the Trust for the separate
account of the Portfolio on the borrowing date; (7) the market value of
Securities to be delivered as collateral for such loan, including the name
of the issuer, the title and the number of shares or the principal amount
of any particular Securities; (8) whether the Custodian is to deliver such
collateral through the Book-Entry System or the Depository; and (9) a
statement that such loan is in conformance with the 1940 Act and the
Trust's Prospectus.
<PAGE>
. Upon receipt of the Certificate referred to in subparagraph (a) above, the
Custodian shall deliver on the borrowing date the specified collateral and
the executed promissory note, if any, against delivery by the lending bank
of the total amount of the loan payable, provided that the same conforms to
the total amount payable as set forth in the Written or Oral Instructions.
The Custodian may, at the option of the lending bank, keep such collateral
in its possession, but such collateral shall be subject to all rights
therein given the lending bank by virtue of any promissory note or loan
agreement. The Custodian shall deliver as additional collateral in the
manner directed by the Trust from time to time such Securities specifically
allocated to such Portfolio as may be specified in Written or Oral
Instructions to collateralized further any transaction described in this
Section 9. The Trust shall cause all Securities released from collateral
status to be returned directly to the Custodian, and the Custodian shall
receive from time time such return of collateral as may be tendered to it.
In the event that the Trust fails to specify in Written or Oral
Instructions all of the information required by this Section 9, the
Custodian shall not be under any obligation to deliver any Securities.
Collateral returned to the Custodian shall be held hereunder as it was
prior to being used as collateral.
. Affiliation Between Trust and Custodian.
It is understood that the Trustees, officers, employees, agents and
shareholders of the Trust, and the officers, directors, employees, agents
and shareholders of the Trust's investment adviser, are or may be
interested in the Custodian as directors, officers, employees, agents,
stockholders, or otherwise, and that the directors, officers, employees,
agents or stockholders of the Custodian may be interested in the Trust as
Trustees, officers, employees, agents, shareholders, or otherwise, of in
the Adviser as officers, directors, employees, agents, shareholders or
otherwise.
. Persons Having Access to Assets of the Portfolios.
. No Trustee, officer, employee or agent of the Trust, and no officer,
director, employee or agent of the Adviser, shall have physical access to
the assets of the Trust held by the Custodian or be authorized or permitted
to withdraw any investments of the Trust, nor shall the Custodian deliver
any assets of the Trust to any such person. No officer, director, employee
or agent of the Custodian who holds any similar position with the Trust or
the Adviser shall have access to the assets of the Trust.
. The individual employees of the Custodian duly authorized by the Board of
Directors of the Custodian to have access to the assets of the Trust are
listed in the certification annexed hereto as Appendix C. The Custodian
shall advise the Trust of any change in the individuals authorized to have
access to the assets of the Trust by written notice to the Trust
accompanied by a certified copy of the authorizing resolution of the
Custodian's Board of Directors approving such change.
<PAGE>
. Nothing in this Section 11 shall prohibit any officer, employee or agent of
the Trust, or any officer, director, employee or agent of the Adviser, from
giving Oral Instructions or Written Instructions to the Custodian or
executing a Certificate so long as it does not result in delivery of or
access to assets of the Trust prohibited by paragraph (a) of this Section
11.
. Concerning the Custodian.
. Standard of Conduct. Except as otherwise provided herein, neither the
Custodian nor its nominee shall be liable for any loss or damage, including
counsel fees, resulting from its action or omission to act or otherwise,
except for any such loss or damage arising out of its own negligence or
willful misconduct. The Custodian may, with respect to questions of law,
apply for and obtain the advice and opinion of counsel to the Trust or of
its own counsel, at the expense of the Trust, and shall be fully protected
with respect to anything done or omitted by it in good faith in conformity
with such advice or opinion. The Custodian shall be liable to the Trust for
any loss or damage resulting from the use of the Book-Entry System or the
Depository arising by reason of any negligence, misfeasance or misconduct
on the part of the Custodian or any of its employees or agents.
. Limit of Duties. Without limiting the generality of the foregoing, the
Custodian shall be under no duty or obligation to inquire into, and shall
not be liable for:
. The validity of the issue of any Securities purchased by any Portfolio, the
legality of the purchase thereof, or the propriety of the amount paid
therefor;
. The legality of the sale of any Securities by any Portfolio, or the
propriety of the amount for which the same are sold;
. The legality of the issue or sale of any Shares, or the sufficiency of the
amount to be received therefor;
<PAGE>
. The legality of the redemption of any Shares, or the propriety of the
amount to be paid therefor;
. The legality of the declaration or payment of any dividend or other
distribution of any Portfolio;
. The legality of any borrowing for temporary or emergency administrative
purposes.
. No Liability Until Receipt. The Custodian shall not be liable for, or
considered to be the Custodian of, any money, whether or not represented by
any check, draft, or other instrument for the payment of money, received by
it on behalf of any Portfolio until the Custodian actually receives and
collects such money directly or by the final crediting of the account
representing the Trust's interest in the Book-Entry System or the
Depository.
. Amounts Due from Transfer Agent. The Custodian shall not be under any duty
or obligation to take action to effect collection of any amount due to any
Portfolio from the Transfer Agent nor to take any action to effect payment
or distribution by the Transfer Agent of any amount paid by the Custodian
to the Transfer Agent in accordance with this Agreement.
. Collection Where Payment Refused. The Custodian shall not be under any duty
or obligation to take action to effect collection of any amount, if the
Securities upon which such amount is payable are in default, or if payment
is refused after due demand or presentation, unless and until (a) it shall
be directed to take such action by a Certificate and (b) it shall be
assured to its satisfaction of reimbursement of its costs and expenses in
connection with any such action.
<PAGE>
. Appointment of Agents and Sub-Custodians. The Custodian may appoint one or
more banking institutions, including but not limited to banking
institutions located in foreign countries, to act as Depository or
Depositories or as Sub-Custodian or as Sub-Custodians of Securities and
monies at any time owned by any Portfolio, upon terms and conditions
specified in a Certificate. The Custodian shall use reasonable care in
selecting a Depository and/or Sub-Custodian located in a country other than
the United States ("Foreign Sub-Custodian"), and shall oversee the
maintenance of any Securities or monies of the Trust by any Foreign
Sub-Custodian.
. No Duty to Ascertain Authority. The Custodian shall not be under any duty
or obligation to ascertain whether any Securities at any time delivered to
or held by it for the Trust and specifically allocated to a Portfolio are
such as may properly be held by the Trust and specifically allocated to
such Portfolio under the provisions of the Declaration of Trust and the
Prospectus.
. Compensation of the Custodians. The Custodian shall be entitled to receive,
and the Trust agrees to pay to the Custodian, such compensation as may be
agreed upon from time to time between the Custodian and the Trust. The
Custodian may charge against any monies specifically allocated to a
Portfolio such compensation and any expenses incurred by the Custodian in
the performance of its duties pursuant to such agreement with respect to
such Portfolio. The Custodian shall also be entitled to charge against any
money held by it and specifically allocated to a Portfolio the amount of
any loss, damage, liability or expense incurred with respect to such
Portfolio, including counsel fees, for which it shall be entitled to
reimbursement under the provisions of this Agreement.
The expenses which the Custodian may charge against such account include,
but are not limited to, the expenses of Sub-Custodians and foreign branches
of the Custodian incurred in settling transactions outside of Boston,
Massachusetts or New York City, New York involving the purchase and sale of
Securities of any Portfolio.
. Reliance on Certificates and Instructions. The Custodian shall be entitled
to rely upon any Certificate, notice or other instrument in writing
received by the Custodian and reasonably believed by the Custodian to be
genuine and to be signed by two officers of the Trust. The Custodian shall
be entitled to rely upon any Written Instructions or Oral Instructions
actually received by the Custodian pursuant to the applicable Sections of
this Agreement and reasonably believed by the Custodian to be genuine and
to be given by an Authorized Person. The Trust agrees to forward to the
Custodian Written Instructions from an Authorized Person confirming such
Oral Instructions in such manner so that such Written Instructions are
received by the Custodian, whether by hand delivery, telex or otherwise, by
the close of business on the same day that such Oral Instructions are given
to the Custodian. The Trust agrees that the fact that such confirming
instructions are not received by the Custodian shall in no way affect the
validity of the transactions or enforceability of the transactions hereby
authorized by the Trust. The Trust agrees that the Custodian shall incur no
liability to the Trust in acting upon Oral Instructions given to the
Custodian hereunder concerning such transactions provided such instructions
reasonably appear to have been received from a duly Authorized Person.
<PAGE>
. Inspection of Books and Records. The books and records of the Custodian
shall be open to inspection and audit at reasonable times by officers and
auditors employed by the Trust and by employees of the Securities and
Exchange Commission.
The Custodian shall provide the Trust with any report obtained by the
Custodian on the system of internal accounting control of the Book-Entry
System or the Depository and with such reports on its own systems of
internal accounting control as the Trust may reasonably request from time
to time.
. Terms and Transactions.
. This Agreement shall become effective on the date first set forth above
(the "Effective Date") and shall continue in effect thereafter as the
parties may mutually agree.
. Either of the parties hereto may terminate this Agreement with respect to
any Portfolio by giving to the other party a notice in writing specifying
the date of such termination, which shall be not less than 60 days after
the date of receipt of such notice. In the event such notice is given by
the Trust, it shall be accompanied by a certified resolution of the Board
of Trustees of the Trust, electing to terminate this Agreement with respect
to any Portfolio and designating a successor custodian or custodians, which
shall be a person qualified to so act under the 1940 Act. In the event such
notice is given by the Custodian, the Trust shall, on or before the
termination date, deliver to the Custodian a certified resolution of the
Board of Trustees of the Trust, designating a successor custodian or
custodians. In the absence of such designation by the Trust, the Custodian
may designate a successor custodian, which shall be a person qualified to
so act under the 1940 Act. If the Trust fails to designate a successor
custodian for any Portfolio, the Trust shall upon the date specified in the
notice of termination of this Agreement and upon the delivery by the
Custodian of all Securities (other than Securities held in the Book-Entry
Systems which cannot be delivered to the Trust) and monies then owned by
such Portfolio, be deemed to be its own custodian and the Custodian shall
thereby be relieved of all duties and responsibilities pursuant to this
Agreement, other than the duty with respect to Securities held in the
Book-Entry System which cannot be delivered to the Trust.
. Upon the date set forth in such notice under paragraph (b) of this Section
13, this Agreement shall terminate to the extent specified in such notice,
and the Custodian shall upon receipt of a notice of acceptance by the
successor custodian on that date deliver directly to the successor
custodian all Securities and monies then held by the Custodian and
specifically allocated to the Portfolio or Portfolios specified, after
deducting all fees, expenses and other amounts for the payment or
reimbursement of which it shall then be entitled with respect to such
Portfolio or Portfolios.
<PAGE>
. Miscellaneous.
. Annexed hereto as Appendix A is a certificate signed by two of the present
officers of the Trust setting forth the names and the signatures of the
present Authorized Persons. The Trust agrees to furnish to the Custodian a
new certification in similar form in the event that any such present
Authorized Person ceases to be such an Authorized Person or in the event
that other or additional Authorized Persons are elected or appointed. Until
such new certification shall be received, the Custodian shall be fully
protected in acting under the provisions of this Agreement upon Oral
Instructions or signatures of the present Authorized Persons as set forth
in the last delivered certification.
. Annexed hereto as Appendix B is a certification signed by two of the
present officers of the Trust setting forth the names and the signatures of
the present officers of the Trust. The Trust agrees to furnish to the
Custodian a new certification in similar form in the event any such present
officer ceases to be an officer of the Trust or in the event that other or
additional officers are elected or appointed. Until such new certification
shall be received, the Custodian shall be fully protected in acting under
the provisions of this Agreement upon the signature of the officers as set
forth in the last delivered certification.
. Any notice or other instrument in writing, authorized or required by this
Agreement to be given to the Custodian, shall be sufficiently given if
addressed to the Custodian and mailed or delivered to it at its offices at
One Boston Place, Boston, Massachusetts 02108 or at such other place as the
Custodian may from time to time designate in writing.
. Any notice or other instrument in writing, authorized or required by this
Agreement to be given to the Trust, shall be sufficiently given if
addressed to the Trust and mailed or delivered to it at its offices at
[TRUST ADDRESS], or at such other place as the Trust may from time to time
designate in writing.
. This Agreement may not be amended or modified in any manner except by a
written agreement executed by both parties with the same formality as this
Agreement, and as may be permitted or required by the 1940 Act.
. This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided, however,
that this Agreement shall not be assignable by the Trust without the
written consent of the Custodian, or by the Custodian without the written
consent of the Trust authorized or approved by a resolution of the Board of
Trustees of the Trust, and any attempted assignment without such written
consent shall be null and void.
<PAGE>
. This Agreement shall be construed in accordance with the laws of the
Commonwealth of Massachusetts.
. It is expressly agreed to that the obligations of the Trust hereunder shall
not be binding upon any of the Trustees, shareholders, nominees, officers,
agents, or employees of the Trust, personally, but bind only the trust
property of the Trust, as provided in the Declaration of Trust of the
Trust. The execution and delivery of this Agreement have been authorized by
the Trustees of the Trust and signed by an authorized officer of the Trust,
acting as such, and neither such authorization by such Trustees nor such
execution and delivery by such officer shall be deemed to have been made by
any of them individually or to impose any liability on any of them
personally, but shall bind only the trust property of the Trust as provided
in its Declaration of Trust.
. The captions of the Agreement are included for convenience of reference
only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction of effect.
. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but such counterparts shall, together,
constitute only one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunder duly authorized as of the day
and year first above written.
[NAME OF TRUST]
By:___________________
Attest:
___________________
BOSTON SAFE DEPOSIT AND
TRUST COMPANY
By:___________________
Attest:
____________________
<PAGE>
APPENDIX A
We, ________________, President and _________________, Secretary, of [NAME
OF TRUST], a Massachusetts business trust (the "Trust"), do hereby certify that:
The following individuals have been duly authorized as Authorized Persons
to give Oral Instructions and Written Instructions on behalf of the Trust and
the signatures set forth opposite there respective names are their true and
correct signatures:
Name Signature
____________________________
____________________________
____________________________
____________________________
____________________________
____________________________
____________________________
____________________________
, President
____________________________
, Secretary
<PAGE>
APPENDIX B - OFFICERS
I, ___________________, President and I, _____________, Secretary, of [NAME
OF TRUST], a Massachusetts business trust (the "Trust"), do hereby certify that:
The following individuals serve in the following positions with the
Trust and each individual has been duly elected or appointed to each such
position and qualified therefor in conformity with the Trust's Declaration of
Trust and the signatures set forth opposite their respective names are their
true and correct signatures:
Name Position Signature
____________________________
____________________________
____________________________
____________________________
____________________________
____________________________
____________________________
____________________________
, President
____________________________
, Secretary
AGENCY AGREEMENT
THIS AGREEMENT made the 1st day of April, 1989, by and between PACIFIC
INVESTMENT MANAGEMENT INSTITUTIONAL TRUST, a Massachusetts business trust having
its principal place of business at 840 Newport Center Drive, Suite 300, P.O. Box
9000, Newport Beach, California 92660 ("Fund"), and INVESTORS FIDUCIARY TRUST
COMPANY, a state chartered trust company organized and existing under the laws
of the State of Missouri, having its principal place of business at 127 West
10th Street, Kansas City, Missouri 64105 ("IFTC"):
WITNESSETH:
`WHEREAS, Fund desires to appoint IFTC as Transfer Agent and Dividend
Disbursing Agent, and IFTC desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. Documents to be Filed with Appointment. In connection with the
appointment of IFTC as Transfer Agent and Dividend Disbursing Agent
for Fund, there will be filed with IFTC the following documents:
A. A certified copy of the resolutions of the Board of
Trustees of Fund appointing IFTC as Transfer Agent and
Dividend Disbursing Agent, approving the form of this
Agreement, and designating certain persons to sign
certificates of shares of beneficial interest, if any,
and give written instructions and requests on behalf of
Fund;
B. A certified copy of the Declaration of Trust of Fund
and all amendments thereto;
C. A certified copy of the Bylaws of Fund;
D. Copies of Registration Statements, and amendments
thereto, filed with the Securities and Exchange
Commission.
E. Specimens of all forms of outstanding certificates of
shares of beneficial interest, in the forms approved by
the Board of Trustees of Fund, with a certificate of
the Secretary of Fund, as to such approval;
F. Specimens of the signatures of the officers of the Fund
authorized to sign certificates of shares of beneficial
interest and individuals authorized to sign written
instructions and requests;
<PAGE>
G. An opinion of counsel for Fund with respect to:
(1) Fund's organization and existence under the laws
of its state of organization,
(2) The status of all shares of beneficial interest
of Fund covered by the appointment under the
Securities Act of 1933, as amended, and any
other applicable federal or state statute and
(3) The fact that all issued shares are, and all
unissued shares will be, when issued, validly
issued, fully paid and non-assessable.
2. Certain Representations and Warranties of IFTC, IFTC
represents and warrants to Fund that:
A. It is a trust company duly organized and existing and
in good standing under the laws of Missouri.
B. It is duly qualified to carry on its business in the
State of Missouri.
C. It is empowered under applicable laws and by its
Articles of Incorporation and bylaws to enter into and
perform the services contemplated in this Agreement.
D. It is registered as a transfer agent to the extent
required under the Securities Act of 1934.
E. All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
F. It has and will continue to have and maintain the
necessary facilities, equipment and personnel to
perform its duties and obligations under this
Agreement.
<PAGE>
3. Certain Representations and Warranties of Fund. Fund
represents and warrants to IFTC that:
A. It is a business trust duly organized and existing and
in good standing under the laws of the Commonwealth of
Massachusetts.
B. It is an open-end management investment company
registered under the Investment Company Act of 1940, as
amended, which consists of eight separate portfolios:
Total Return Portfolio, Long Duration Portfolio, Low
Duration Portfolio, Mortgage Plus Portfolio,
International Portfolio, Short-Term Portfolio, Market
Mirror Stock Portfolio, and Growth Stock Portfolio (the
"Portfolios").
C. A registration statement under the Securities Act of
1933 has been filed and will be effective with respect
to all shares of Fund being offered for sale.
D. All requisite steps have been or will be taken to
register Fund's shares for sale in all applicable
states.
E. Fund is empowered under applicable laws and by its
Declaration-of Trust and bylaws to enter into and
perform this Agreement.
4. Scope of Appointment.
A. Subject: to the conditions set forth in this Agreement,
Fund hereby employs and appoints IFTC as Transfer Agent
and Dividend Disbursing Agent effective the lst day of
April, 1989.
B. IFTC hereby accepts such employment and appointment and
agrees that it will act as Fund's Transfer Agent and
Dividend Disbursing Agent. IFTC agrees that it will
also act as agent in connection with Fund's exchange
privilege, special open-accounts or similar plans for
shareholders, if any.
C. IFTC agrees to provide the necessary facilities,
equipment and personnel to perform its duties and
obligations hereunder in accordance with industry
practice.
<PAGE>
D. Fund agrees to use its best efforts to deliver to IFTC
in Kansas City, Missouri, as soon as they are
available, all of its shareholder account records.
E. Subject to the provisions of Sections 19. and 20.
hereof, IFTC agrees that it will perform all of the
usual and ordinary services of Transfer Agent and
Dividend Disbursing Agent and as Agent for the various
shareholder accounts, including, without limitation,
the following: issuing, transferring and canceling
certificates of shares of beneficial interest, if any,
maintaining all shareholder accounts, preparing
shareholder meeting lists, mailing proxies, receiving
and tabulating proxies, mailing shareholder reports and
prospectuses, withholding taxes on non-resident alien
and foreign corporation accounts, for pension and
deferred income, backup withholding or other instances
agreed upon by the parties, preparing and mailing
checks for disbursement of income dividends and capital
gains distributions, preparing and filing U.S. Treasury
Department Form 1099 for all shareholders, preparing
and mailing confirmation forms to shareholders and
dealers with respect to all purchases and redemptions
of Fund shares and other transactions in shareholder
accounts for which confirmations are required,
recording reinvestments of dividends and distributions
in Fund shares, and cooperating with broker-dealers and
financial intermediaries who represent shareholders of
the Fund.
5. Limit of Authority
Unless otherwise expressly limited by the resolution of
appointment or by subsequent action by the Fund, the
appointment of IFTC as Transfer Agent will be construed
to cover the full amount of the shares of beneficial
interest for which IFTC is appointed as the same will,
from time to time, be constituted, and any subsequent
increases in such authorized amount.
In case of such increase Fund will file with IFTC:
A. If the appointment of IFTC was theretofore expressly
limited, a certified copy of a resolution of the Board
of Trustees of Fund increasing the authority of IFTC;
B. A certified copy of the amendment to the Declaration of
Trust of Fund authorizing the issuance of additional
shares of beneficial interest;
<PAGE>
C. A certified copy of the order or consent of each
governmental or regulatory authority required by law to
consent to the issuance of additional shares of
beneficial. interest, and an opinion of counsel that
the order or consent of no other governmental or
regulatory authority is required;
D. Opinion of counsel for Fund stating:
(1) The status of the additional shares of
beneficial interest of Fund under the
Securities Act of 1933, as amended, and any
other applicable federal or state statute;
and
(2) That the additional shares are, or when
issued will be, validly issued, fully paid
and non-assessable.
6. Compensation and Expenses
A. In consideration for its services hereunder as Transfer
Agent and Dividend Disbursing Agent, Fund will pay to
IFTC from time to time a reasonable compensation for
all services rendered as Agent, and also, all its
reasonable out-of-pocket expenses, charges, counsel
fees, and other disbursements incurred in connection
with the agency. Such compensation is set forth in a
separate schedule to be agreed to by Fund and IFTC, a
copy of which is attached hereto as Exhibit A and
incorporated herein by reference.
B. Fund agrees to promptly reimburse IFTC, upon receipt of
a statement itemized to the extent itemization is
available to IFTC, for all reasonable out-of-pocket
expenses or advances incurred by IFTC in connection
with the performance of services under this Agreement,
for postage (and first class mail insurance in
connection with mailing share certificates), envelopes,
check forms, continuous forms, forms for reports and
statements, stationery, and other similar items,
telephone and telegraph charges incurred in answering
inquiries from dealers or shareholders, microfilm used
each year to record the previous year's transactions in
shareholder accounts and computer tapes used for
permanent storage of records and cost of insertion of
materials in mailing envelopes by outside firms.
7. Efficient 0peration of IFTC System.
A. In connection with the performance of its services
under this Agreement, IFRC is responsible for such
items as:
<PAGE>
(1) The accuracy of entries in IFTC's
records reflecting orders and
instructions received by IFTC from
dealers, shareholders, Fund or its
principal underwriter;
(2) The timely posting of purchase and
redemption orders except when a delay in
posting is caused by factors beyond
IFTC's control;
(3) The availability and the accuracy of
shareholder lists, shareholder account
verifications, confirmations and other
shareholder account information to be
produced from its records or data;
(4) The accurate and timely issuance of
dividend and distribution checks in
accordance with instructions received
from Fund;
(5) The accuracy of redemption transactions
and payments in accordance with
redemption instructions received from
dealers, shareholders or Fund;
(6) The deposit daily in Fund's appropriate
special bank account of all checks and
payments received from dealers or
shareholders for investment in shares;
(7) The requiring of proper forms of
instructions, signatures and signature
guarantees and any necessary documents
supporting the legality of transfers,
redemptions and other shareholder
account transactions, all in conformance
with IFTC's present procedures with such
changes as may be required or approved
by Fund; and
(8) The maintenance of a current duplicate
set of Fund's essential records at a
secure distant location, in a form
available and usable forthwith in the
event of any breakdown or disaster
disrupting its main operation.
<PAGE>
8. Indemnification.
A. IFTC will not be responsible for, and Fund will
hold harmless and indemnify IFTC from and
against any loss by or liability to the Fund or
a third party, including attorney's fees, in
connection with any claim or suit asserting any
such liability arising out of or attributable to
actions taken or omitted by IFTC pursuant to
this Agreement, unless IFTC has acted
negligently or in bad faith. The matters covered
by this indemnification include but are not
limited to those of Section 14 hereof.
Fund will be responsible for, and will have the
right to conduct or control the defense of any
litigation asserting liability against which
IFTC is indemnified hereunder. IFTC will not be
under any obligation to prosecute or defend any
action or suit in respect of the agency
relationship hereunder, which, in its opinion,
may involve it in expense or liability, unless
Fund will, as often as requested, furnish IFTC
with reasonable, satisfactory security and
indemnity against such expense or liability.
B. IFTC will hold harmless and indemnify Fund from
and against any loss or liability to IFTC or a
third party, including attorneys' fees, in
connection with any claim or suit asserting any
such liability arising out of IFTC's failure to
comply with the terms of this Agreement or out
of IFTC's negligence, willful misconduct, or bad
faith.
9. Certain Covenants of IFTC and Fund.
A. All requisite steps will be taken by Fund from
time to time when and as necessary to register
the Fund's shares for sale in all states in
which Fund's shares shall at the time be offered
for sale and require registration. If at any
time Fund will-receive notice of any stop order
or other proceeding in any such state affecting
such registration or the sale of Fund's shares,
or of any stop order or other proceeding under
the Federal securities laws affecting the sale
of Fund's shares, Fund will give prompt notice
thereof to IFTC.
B. IFTC hereby agrees to perform such transfer
agency functions as are set forth in Section
4.E. above and establish and maintain facilities
and procedures reasonably acceptable to Fund for
safekeeping of share certificates, check forms,
and facsimile signature imprinting devices, if
any; and for the preparation or use, and for
keeping account of, such certificates, forms and
devices, and to carry insurance as specified in
Exhibit B which will not be lowered without
notice to Fund.
C. To the extent required by Section 31 of the
Investment Company Act of 1940 as amended and
Rules thereunder, IF7C agrees that all records
maintained by IFTC relating to the services to
be performed by IFTC under this Agreement are
the property of Fund and will be preserved and
will be surrendered promptly to Fund on request.
<PAGE>
D. IFTC agrees to furnish Fund semi-annual reports
of its financial condition, consisting of a
balance sheet, earnings statement and any other
financial information reasonably requested by
Fund. The annual financial statements will be
certified by IFTC's certified public
accountants.
E. IFTC represents and agrees that it will use its
best efforts to keep current on the trends of
the investment company industry relating to
shareholder services and will use its best
efforts to continue to modernize and improve its
system without additional cost to Fund.
F. IFTC will permit Fund and its authorized
representatives to make periodic inspections of
its operations at reasonable times during
business hours.
10. Recapitalization or Readjustment
In case of any recapitalization, readjustment or
other change in the capital structure of Fund or
any portfolio thereof requiring a change in the
form of share certificates, IFTC will issue or
register certificates in the new form in
exchange for, or in transfer of, the outstanding
certificates in the old form, upon receiving:
A. Written instructions from an officer of Fund;
B. Certified copy of the amendment to the
Declaration of Trust or other document effecting
the change;
C. Certified copy of the order or consent of each
governmental or regulatory authority required by
law to the issuance of the shares in the new
form, and an opinion of counsel that the order
or consent of no other government or regulatory
authority is required;
D. Specimens of the new certificates in the form
approved by the Board of Trustees of Fund, with
a certificate of the Secretary of Fund as to
such approval;
E. Opinion of counsel for Fund stating:
(1) The status of the shares of beneficial
interest of Fund in the new form under
the Securities Act of 1933, as amended
and any other applicable federal or
state statute; and
(2) That the issued shares in the new form
are, and all unissued shares will be,
when issued, validly issued, fully paid
and non-assessable.
<PAGE>
11. Share Certificates
Fund will furnish IFTC with a sufficient supply of blank
certificates of shares of beneficial interest and from
time to time will renew such supply upon the request of
IFRC. Such certificates will be signed manually or by
facsimile signatures of the officers of Fund authorized
by law and by bylaws to sign share certificates, and if
required, will bear the Fund's seal or facsimile
thereof.
12. Death, Resignation or Removal of Signing Officer Fund
will file promptly with IFTC written notice of any
change in the officers authorized to sign share
certificates, written instructions or requests, together
with two signature cards bearing the specimen signature
of each newly authorized officer. In case any officer of
Fund who will have signed manually or whose facsimile
signature will have been affixed to blank share
certificates will die, resign, or be removed prior to
the issuance of such certificates, IFTC may issue or
register such share certificates as the share
certificates of Fund notwithstanding such death,
resignation, or removal, until specifically directed to
the contrary by Fund in writing. In the absence of such
direction, Fund will file promptly with IFTC such
approval, adoption, or ratification as may be required
by law.
13. Future Amendments of Declaration of Trust and Bylaws
Fund will promptly file with IFTC copies of all material
amendments to its Declaration of Trust or bylaws made
after the date of this Agreement.
14. Instructions, Opinion of Counsel and Signatures At any
time IFTC may apply to any officer of the Fund or any
person authorized by the Fund to give instructions to
IFTC for instructions, and may with the approval of a
Fund officer consult with legal counsel for Fund at the
expense of the Fund, or its own legal counsel at its own
expense, with respect to any matter arising in
connection with the agency and it will not be liable for
any action taken or omitted by it in good faith in
reliance upon such instructions or upon the opinion of
such counsel. IFTC will be protected in acting upon any
paper or document reasonably believed by it to be
genuine and to have been signed by the proper person or
persons and will not be held to have notice of any
change of authority of `any person, until receipt of
written notice thereof from Fund. It will also be
protected in recognizing share certificates which it
reasonably believes to bear the proper manual or
facsimile signatures of the officers of Fund, and the
proper countersignature of any former Transfer Agent or
Registrar, or of a Co-Transfer Agent or Co-Registrar.
15. Papers Subject to Approval of Counsel
The acceptance by IFTC of its appointment as Transfer
Agent and Dividend Disbursing Agent and all documents
filed in connection with such appointment and thereafter
in connection with the agencies, will be subject to the
approval of legal counsel for IFTC (which approval will
be not unreasonably withheld).
<PAGE>
16. Certification of Documents The required copy of the
Declaration of Trust of Fund and copies of all
amendments thereto will be certified by the Secretary
(or other appropriate official) of the Commonwealth of
Massachusetts,,. and if such Declaration of Trust and
amendments are required by law to be also filed with a
county, city or other officer of official body, a
certificate of such filing will appear on the certified
copy submitted to IFTC. A copy of the order or consent
of each governmental or regulatory authority required by
law to the issuance of the shares will be certified by
the Secretary or Clerk of such governmental or
regulatory authority, under proper seal of such
authority. The copy of the Bylaws and copies of all
amendments thereto, and copies of resolutions of the
Board of Trustees of Fund, will be certified by the
Secretary or an Assistant Secretary of Fund under the
Fund's seal.
17. Records
IFTC will maintain customary records in connection with
its agency, and particularly will maintain those records
required to be maintained pursuant to sub-paragraph (2)
(iv) of paragraph (b) of Rule 3la-1 under the Investment
Company Act of 1940, if any.
18. Disposition of Books, Records and Cancelled Certificates
IFTC will send periodically to Fund, or to where
designated by the Secretary or an Assistant Secretary of
Fund, all books, documents, and all records no longer
deemed needed for current purposes and share
certificates which have been cancelled in transfer or in
exchange, upon the understanding that such books,
documents, records, and share certificates will not be
destroyed by Fund without the consent of IFTC (which
consent will not be unreasonably withheld), but will be
safely stored for possible future reference.
19. Provisions Relating to IFTC as Transfer Agent
A. IFTC will make original issues of share certificates
upon written request of an officer of Fund and upon
being furnished with a certified copy of a resolution of
the Board of Trustees authorizing such original issue,
an opinion of counsel as outlined in paragraphs l.D. and
G. of this Agreement, any documents required by
paragraphs 5. or 10. of this Agreement, and necessary
funds for the payment of any original issue tax.
B. Before making any original issue of certificates Fund
will furnish IFTC with sufficient funds to pay all
required taxes on the original issue of shares of
beneficial interest, --if any. Fund will furnish IFTC
such evidence as may be required by IFTC to show the
actual value of the shares. If no taxes are payable IFTC
will be furnished with an opinion of outside counsel to
that effect.
<PAGE>
C. Shares of beneficial interest will be transferred and
new certificates issued in transfer, or shares of
beneficial interest accepted for redemption and funds
remitted therefor, upon surrender of the old
certificates in form deemed by IFTC properly endorsed
for transfer or redemption accompanied by such documents
as IFTC may deem necessary to evidence that authority of
the person making the transfer or redemption, and
bearing satisfactory evidence of the payment of any
applicable transfer taxes. IFTC reserves the right to
refuse to transfer or redeem shares until it is
satisfied that the endorsement or signature on the
certificate or any other document is valid and genuine,
and for that purpose it may require a guaranty of
signature by a firm having membership in the New York
Stock Exchange, Midwest Stock Exchange, American Stock
Exchange Securities Corporation, Pacific Coast Stock
Exchange, or any other exchange acceptable to IFTC or by
a bank or trust company approved by it. IFTC also
reserves the right to refuse to transfer or redeem
shares until it is satisfied that the requested transfer
or redemption is legally authorized, and it will incur
no liability for the refusal in good faith to make
transfers or redemptions which, in its judgment, are
improper or unauthorized. IFTC may, in effecting
transfers or redemptions, rely upon Simplification Acts
or other statutes which protect it and Fund in not
requiring complete fiduciary documentation. In cases in
which IFTC is not directed or otherwise required to
maintain the consolidated records of shareholder's
accounts, IFTC will not be liable for any loss which may
arise by reason of not having such records, provided
that such loss could not have been prevented by the
exercise of ordinary diligence. IFTC will be under no
duty to use a greater degree of diligence by reason of
not having such records.
D. When mail is used for delivery of share certificates
IFTC will forward share certificates in "nonnegotiable"
form by first class or registered mail and share
certificates in `negotiable" form by registered mail,
all such mail deliveries to be covered while in transit
to the addressee by insurance arranged for by IFTC.
E. IFTC will issue and mail subscription warrants,
certificates representing dividends, exchanges or split
ups, or act as Conversion Agent upon receiving written
instructions from any officer of Fund and such other
documents as IFTC deems necessary.
F. IFTC will issue, transfer, and split up certificates and
will issue certificates representing full shares of
beneficial interest upon surrender of scrip certificates
aggregating one full share or more when presented to
IFTC for that purpose upon receiving written
instructions from an officer of Fund and such other
documents as IFTC may deem necessary.
G. IFTC may issue new certificates in place of certificates
represented to have been lost, destroyed, stolen or
otherwise wrongfully taken upon receiving instructions
from Fund and indemnity satisfactory to IFTC and Fund,
and may issue new certificates in exchange for, and upon
surrender of, mutilated certificates. Such instructions
from Fund will be in such form as will be approved by
the Board of Trustees of Fund and will be in accordance
with the provisions of law and the bylaws of Fund
governing such matter.
<PAGE>
H. IFTC will supply a shareholder's list to Fund for its
shareholders' meetings, if any, upon receiving a request
from an officer of Fund. It will also supply lists at
such other times as may be requested by an officer of
Fund.
I. Upon receipt of written instructions of an officer of
Fund, IFTC will address and mail notices to
shareholders.
J. In case of any request or demand for the inspection of
the shareholder records of Fund or any other books in
the possession of IFTC, IFTC will endeavor to notify
Fund promptly and endeavor to secure instructions as to
permitting or refusing such inspection. IFTC reserves
the right, however, to exhibit the shareholder records
or other books to any person in case it is advised by
its counsel that it may be held responsible for the
failure to exhibit the shareholder records or other
books -to such person.
20. Provisions Relating to Dividend Disbursing Agency
A. IFTC will, at the expense of Fund, provide a special
form of check containing the imprint of any device or
other matter desired by Fund. Said checks must, however,
be of a form and size convenient for use by IFTC.
B. If Fund desires to include additional printed matter,
financial statements, etc., with the dividend checks,
the same will be furnished IFTC within a reasonable time
prior to the date of mailing of the dividend checks, at
the. expense of Fund.
C. If Fund desires its distributions mailed in any special
form of envelopes, sufficient supply of the same will be
furnished to IFTC but the size and form of said
envelopes will be subject to the approval of IFTC. If
stamped envelopes are used, they must be furnished by
Fund; or if postage stamps are to be affixed to the
envelopes, the stamps or the cash necessary for such
stamps must be furnished by Fund.
D. IFTC will maintain one or more deposit accounts as Agent
for Fund, into which the funds for payment of dividends,
distributions, redemptions or other disbursements
provided for hereunder will be deposited, and against
which checks will be drawn.
E. IFTC is authorized and directed to stop payment of
checks theretofore issued hereunder, but not presented
for payment, when the payees thereof allege either that
they have not received the checks or that such checks
have been mislaid, lost, stolen, destroyed or through no
fault of theirs, are otherwise beyond their control, and
cannot be produced by them for presentation and
collection, and, to issue and deliver duplicate checks
in replacement thereof.
<PAGE>
21. Termination of Agreement.
A. This Agreement may be terminated by either party upon
receipt of sixty (60) days written notice from the other
party.
B. Fund, in addition to any other rights and remedies,
shall have the right to terminate this Agreement
forthwith upon the occurrence at any time of any of the
following events:
(1) Any interruption or cessation of operations by
IFTC--or its assigns which materially interferes
with the business operation of Fund;
(2) The bankruptcy of IFTC or its assigns or the
appointment of a receiver for IFTC or its
assigns;
(3) Any merger, consolidation or sale of
substantially all the assets of IFTC or its
assigns;
(4) The acquisition of a controlling interest in
IFTC or its assigns, by any broker, dealer,
investment adviser or investment company except
as may presently exist; or
(5) Failure by IFTC or its assigns , to perform its
duties in accordance with the Agreement, which
failure materially adversely affects the
business operations of Fund and which failure
continues for thirty (30) days after receipt of
written notice from Fund.
C. In the event of termination, Fund will promptly pay IFTC
all amounts due to IFTC hereunder.
D. Sections 8 and 9.C. will survive termination.
<PAGE>
E. In the event of termination, IFTC will use its best
efforts to transfer the books and records of the Fund to
the sucessor transfer agent and to provide other
information relating to its services provided hereunder
for reasonable compensation therefore.
22. Assignment.
A. Neither this Agreement nor any rights or obligations
hereunder may be assigned by IFTC without the written
consent of Fund; provided, however, no assignment will
relieve IFTC of any of its obligations hereunder.
B. This Agreement will inure to the benefit of and be
binding upon the parties and their respective successors
and assigns.
23. Confidentiality.
A. IFTC agrees that, except as provided in the last
sentence of Section 19.J hereof, or as otherwise
required by law, IFTC will keep confidential all records
of and information in its possession relating to Fund or
its shareholders or shareholder accounts and will not
disclose the same to any person except at the request or
with the consent of Fund.
B. Fund agrees that, subject to Section 21.C. and except as
otherwise required by law, Fund will keep confidential
all financial statements and other financial records
(other than statements and records relating solely to
Fund's business dealings with IFTC) and all manuals,
systems and other technical information and data, not
publicly disclosed, relating to IFTC's operations and
programs furnished to it by IFTC pursuant to this
Agreement and will not disclose the same to any person
except at the request or with the consent of IFTC.
24. Survival of Representations and Warranties.
A. All representations and warranties by either party
herein contained will survive the execution and delivery
of this Agreement.
<PAGE>
25. Miscellaneous.
A. This Agreement is executed and delivered in the State of
New York and shall be governed by the laws of said
state.
B. All the terms and provisions of this Agreement shall be
binding upon, inure to the benefit of, and be
enforceable by the respective successors and assigns of
the parties hereto.
C. No provisions of the Agreement may be amended or
modified, in any manner except by a written agreement
properly authorized and executed by both parties hereto.
D. The captions in this Agreement are included for
convenience of reference only, and in no way define or
delimit any of the provisions hereof or otherwise affect
their construction or effect.
E. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an
original but all of which together shall constitute one
and the same instrument.
F. If any part, term or provision of this Agreement is by
the courts held to be illegal, in conflict with any law.
or otherwise invalid, the remaining portion or portions
shall be considered severable and not be affected, and
the rights and obligations of the parties shall be
construed and enforced as if the Agreement did not
contain the particular part, term or provision held to
be illegal or invalid.
G. A copy of the Declaration of Trust of the Fund is on
file with the Secretary of the Commonwealth of
Massachusetts and notice is hereby given that the
Agreement has been executed on behalf of Fund by the
undersigned officer of Fund in his capacity as an
officer of Fund. The obligations of this Agreement shall
only be binding upon the assets and property of Fund and
shall not be binding upon any Trustee, officer or
shareholder of Fund individually.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duly authorized officers.
INVESTORS FIDUCIARY TRUST COMPANY
By:__________________________
Larry W. Rinne, President
ATTEST:
_______________________________________
Cheryl J. Naegler, Assistant Secretary
PACIFIC INVESTMENT MANAGEMENT INSTITUTIONAL TRUST
By:__________________________________________________
William F. Podlich, III, President
ATTEST:
___________________________
R. Wesley Burns, Secretary
Consent of Counsel
We hereby consent to the use of our name and to the references to our firm
as Counsel to Pacific Investment Management Institutional Trust (the "Fund")
included in or made a part of Pre-Effective Amendment No. 4 to the Fund's
Registration Statement (File No. 33-12113) or Form N-1A under the Securities Act
of 1933, as amended.
/s/Dechert Price & Rhoads
May 1, 1987
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Prospectuses and
Statement of Additional Information constituting parts of this Post-Effective
Amendment No. 37 to the registration statement on Form N-1A (the "Registration
Statement") of our reports dated May 22, 1997, relating to the financial
statements and financial highlights appearing in the March 31, 1997 Annual
Reports to Shareholders of the PIMCO Funds: Pacific Investment Management
Series, which are also incorporated by reference into the Registration
Statement. We also consent to the references to us under the heading "Financial
Highlights" in the Prospectuses and under the headings "Independent Accountants"
and "Financial Statements" in the Statement of Additional Information.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Kansas City, Missouri
November 14, 1997
PIMCO FUNDS
DISTRIBUTION PLAN
FOR ADMINISTRATIVE CLASS SHARES
WHEREAS, PIMCO Funds (the "Trust") is registered as an open-end management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act");
WHEREAS, the Trust issues shares of beneficial interest ("shares") in
separate series ("Funds"), with each Fund representing interests in a separate
portfolio of securities and other assets;
WHEREAS, the Trust is authorized to issue shares of the Funds in separate
classes of shares, one of which is designated the Administrative Class (the
"Administrative Class" shares);
WHEREAS, certain shareholders of the Trust may require distribution and
related services that are in addition to services required by other
shareholders, and the provision of such services to shareholders requiring these
services may benefit such shareholders and facilitate their ability to invest in
the Funds;
WHEREAS, issuance of shares of the Funds in a class subject to a fee for
the Funds' cost of providing distribution and related services would allocate
the Funds' expense of rendering such services to the shareholders who receive
such additional services;
WHEREAS, the Funds with respect to their Administrative Class shares intend
to enter into Distribution Agreements ("Agreements") pursuant to this
Distribution Plan (the "Plan") with various Service Organizations ("Service
Organizations") pursuant to which the Service Organization will act as
distributor of Administrative Class shares of the Funds for sale to the public;
WHEREAS, prior to issuing shares of the Funds in separate classes, the
Funds will obtain an order of exemption from the Securities and Exchange
Commission granting exemptions from the 1940 Act to the extent necessary to
permit the issuance of shares in different classes, and a condition to the
exemptive order is that any shares described in the application for such
exemption ("Application") as Administrative Class shares will enter into
distribution agreements in accordance with the procedures set forth in
paragraphs (b) through (f) of Rule 12b-1 under the Act; and
<PAGE>
WHEREAS, the Board of Trustees of the Trust has determined that there is a
reasonable likelihood that the Plan will benefit the Funds and their
shareholders;
NOW THEREFORE, the Trust hereby adopts this Distribution Plan on the
following terms and conditions:
1. The Trust shall reimburse a Service Organization with which a Fund,
regarding its Administrative Class, has an Agreement, for costs and expenses
incurred in connection with the distribution and marketing of shares of that
Class, at a rate specified in paragraph 2 below, based upon the average daily
net assets of the Fund attributable to the Administrative Class.
2. Subject to the limitations of applicable law and regulations, including
rules of the National Association of Securities Dealers ("NASD"), the Service
Organization will be reimbursed quarterly for such costs, expenses or payments
at an annual rate of up to but not more than 0.25% of the average daily net
assets of the Fund attributable to the Administrative Class. Any expense payable
hereunder may be carried forward for reimbursement for up to twelve months
beyond the date in which it is incurred, subject always to the limit that not
more than 0.25% of the average daily net assets attributable to an
Administrative Class may be used in any month to pay expenses pursuant to the
Agreement. An Administrative Class shall incur no interest or carrying charges
for expenses carried forward. In the event the Plan is terminated as herein
provided, the Administrative Class shall have no liability for expenses that
were not reimbursed as of the date of termination.
3. The payment of fees to a Service Organization is subject to compliance
by the Service Organization with the terms of the Agreement between the Service
Organization and the Fund. If an Administrative Class shareholder ceases to be a
client of a Service Organization that has entered into an Agreement with a Fund,
but continues to hold Administrative Class shares, the Service Organization will
be entitled to receive a similar payment in respect of the services provided to
such investors. For the purposes of determining the fees payable under the Plan,
the average daily net asset value of the Fund attributable to the Administrative
Class shares shall be computed in the manner specified in the Trust's
Declaration of Trust and current prospectus.
4. Services which a Service Organization will provide under an Agreement
may include, but are not limited to, the following functions: providing
facilities to answer questions from prospective investors about the Fund;
receiving and answering correspondence, including requests for prospectuses and
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<PAGE>
statements of additional information; preparing, printing and delivering
prospectuses and shareholder reports to prospective shareholders; complying with
federal and state securities laws pertaining to the sale of Administrative Class
shares; and assisting investors in completing application forms and selecting
dividend and other account options. In addition, Service Organizations can
provide their endorsement of the Administrative Class shares of a Fund to their
clients, members or customers as an inducement to invest in the Fund.
5. Any Service Organization entering into an Agreement with a Fund under
this Plan may also enter into an Administrative Services Agreement with regard
to its Administrative Class with that Fund, pursuant to an Administrative
Services Plan adopted by the Fund. However, in the event the Service
Organization enters into both types of agreements, the Service Organization
shall not be eligible to receive fees under more than one agreement with respect
to the same assets. A Fund under this Plan may enter into more than one
Distribution Agreement for its Administrative Class shares, with different
Service Organizations providing services to different groups of shareholders.
6. The Plan shall not take effect with respect to a Fund until it has been
approved by a vote of at least a majority (as defined in the 1940 Act) of the
outstanding voting securities of the Administrative Class of that Fund. With
respect to the submission of the Plan for such a vote, it shall have been
effectively approved with respect to a Fund if a majority of the outstanding
voting securities of the Administrative Class of the Fund votes for approval of
the Plan, notwithstanding that the matter has not been approved by a majority of
the outstanding voting securities of the Administrative Class of any other Fund.
7. The Plan shall not take effect until it has been approved, together with
any related agreements and supplements, by votes of a majority of both (a) the
Board of Trustees of the Trust, and (b) those Trustees of the Trust who are not
"interested persons" (as defined in the 1940 Act) and have no direct or indirect
financial interest in the operation of the Plan or any agreements related to it
(the "Plan Trustees"), cast in person at a meeting (or meetings) called for the
purpose of voting on the Plan and such related agreements.
8. The Plan shall continue in effect so long as such continuance is
specifically approved at least annually in the manner provided for approval of
the Plan in paragraph 7.
9. Any person authorized to direct the disposition of monies paid or
payable by an Administrative Class pursuant to the Plan or any related agreement
shall provide to the Trust's Board of Trustees, and the Board shall review, at
least quarterly, a written report of the amounts so expended and the purposes
for which such expenditures were made.
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<PAGE>
10. Any agreement related to the Plan shall be in writing and shall
provide: (a) that such agreement may be terminated at any time as to a Fund,
without payment of any penalty, by vote of a majority of the Plan Trustees or by
vote of a majority of the outstanding voting securities of the Administrative
Class of a Fund, on not more than sixty (60) days' written notice to any other
party to the agreement; and (b) that such agreement shall terminate
automatically in the event of its assignment.
11. The Plan may be amended at any time with respect to a Fund by the Board
of Trustees, provided that (a) any amendment to increase materially the costs
which the Administrative Class shares may bear for distribution pursuant to the
Plan shall be effective only upon approval by a vote of a majority of the
outstanding voting securities of the Administrative Class of the Fund, and (b)
any material amendments of the terms of the Plan shall become effective only
upon approval as provided in paragraph 7 hereof.
12. While the Plan is in effect, the selection and nomination of Trustees
who are not interested persons (as defined in the 1940 Act) of the Trust shall
be committed to the discretion of the Trustees who are not interested persons.
13. The Trust shall preserve copies of the Plan, any related agreement and
any report made pursuant to paragraph 9 hereof, for a period of not less than
six (6) years from the date of the Plan, such agreement or report, as the case
may be, the first two (2) years of which shall be in an easily accessible place.
14. It is understood and expressly stipulated that neither the holders of
shares of any Fund nor any Trustee, officer, agent or employee of the Trust
shall be personally liable hereunder, nor shall any resort be had to other
private property for the satisfaction of any claim or obligation hereunder, but
the Trust only shall be liable.
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<PAGE>
IN WITNESS WHEREOF, the Trust has adopted this Distribution Plan effective
as of the ______ day of ____________, 1994.
PIMCO FUNDS
By: _____________________________
TITLE:
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PIMCO FUNDS
ADMINISTRATIVE SERVICES PLAN
FOR ADMINISTRATIVE CLASS SHARES
WHEREAS, PIMCO Funds (the "Trust") is registered as an open-end management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act");
WHEREAS, the Trust issues shares of beneficial interest ("shares") in
separate series ("Funds"), with each Fund representing interests in a separate
portfolio of securities and other assets;
WHEREAS, the Trust is authorized to issue shares of the Funds in separate
classes of shares, one of which is designated the Administrative Class (the
"Administrative Class" shares);
WHEREAS, certain shareholders of the Trust may require administrative,
recordkeeping, and other services that are in addition to services required by
other shareholders, and the provision of such services to shareholders requiring
these services may benefit such shareholders and facilitate their ability to
invest in the Funds;
WHEREAS, issuance of shares of the Funds in a class subject to a fee for
the Funds' cost of providing administrative, recordkeeping, and shareholder
services would allocate the Funds' expense of rendering such services to the
shareholders who receive such additional services;
WHEREAS, the Funds with respect to their Administrative Class shares intend
to enter into Administrative Services Agreements ("Agreements") pursuant to this
Administrative Services Plan (the "Plan") with various Service Organizations
("Service Organizations") pursuant to which the Service Organization will
provide certain administrative, recordkeeping and shareholder services to its
clients, members or customers who purchase shares of the Administrative Class of
a Fund;
WHEREAS, prior to issuing shares of the Funds in separate classes, the
Trust will obtain an order of exemption from the Securities and Exchange
Commission granting exemptions from the 1940 Act to the extent necessary to
permit the issuance of shares in different classes, and a condition to the
exemptive order is that shares described in the application for such exemption
("Application") as Administrative Class shares will enter into administrative
services agreements in accordance with the procedures set forth in paragraphs
(b) through (f) of Rule 12b-1 under the Act, except that shareholders need not
enjoy the voting rights specified in Rule 12b-1; and
<PAGE>
WHEREAS, the Board of Trustees of the Trust has determined that there is a
reasonable likelihood that the Plan will benefit the Funds and their
shareholders.
NOW THEREFORE, the Trust hereby adopts this Plan on the following terms and
conditions:
1. The Trust shall reimburse a Service Organization with which a Fund,
regarding its Administrative Class, has an Agreement, for costs and expenses
incurred in connection with providing certain administrative services for
shareholders of that Class, at a rate specified in paragraph 2 below, based upon
the average daily net assets of the Fund attributable to the Administrative
Class
2. Subject to the limitations of applicable law and regulations, including
rules of the National Association of Securities Dealers ("NASD"), the Service
Organization will be reimbursed quarterly for such costs, expenses or payments
at an annual rate of up to but not more than 0.25% of the average daily net
assets of the Fund attributable to the Administrative Class. Any expense payable
hereunder may be carried forward for reimbursement for up to twelve months
beyond the date in which it is incurred, subject always to the limit that not
more than 0.25% of the Fund's average daily net assets attributable to the
Administrative Class may be used in any month to pay expenses pursuant to the
Agreement. Each Administrative Class shall incur no interest or carrying charges
for expenses carried forward. In the event the Plan is terminated as herein
provided, the Administrative Class shall have no liability for expenses that
were not reimbursed as of the date of termination.
3. The payment of fees to a Service Organization is subject to compliance
by the Service Organization with the terms of the Agreement between the Service
Organization and the Fund. If an Administrative Class shareholder ceases to be a
client of a Service Organization that has entered into an Agreement with a Fund,
but continues to hold Administrative Class shares, the Service Organization will
be entitled to receive a similar payment in respect of the services provided to
such investors. For the purposes of determining the fees payable under the Plan,
the average daily net asset value of the Fund attributable to the Administrative
Class shares shall be computed in the manner specified in the Trust's
Declaration of Trust and current prospectus.
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<PAGE>
4. Services which a Service Organization will provide under an
Administrative Services Agreement may include, but are not limited to, the
following functions: receiving, aggregating and processing shareholder orders;
furnishing shareholder sub-accounting; providing and maintaining elective
shareholder services such as check writing and wire transfer services; providing
and maintaining pre-authorized investment plans; communicating periodically with
shareholders; acting as the sole shareholder of record and nominee for
shareholders; maintaining accounting records for shareholders; answering
questions and handling correspondence from shareholders about their accounts;
issuing confirmations for transactions by shareholders; and performing similar
account administrative services.
5. Any Service Organization entering into an Agreement with a Fund under
this Plan may also enter into a Distribution Agreement with regard to its
Administrative Class with that Fund pursuant to a Distribution Plan adopted by
the Fund. However, in the event the Service Organization enters into both types
of agreements, the Service Organization shall not be eligible to receive fees
under more than one agreement with respect to the same assets. A Fund under this
Plan may enter into more than one Administrative Services Agreement for its
Administrative Class shares, with different Service Organizations providing
services to different groups of shareholders.
6. The Plan shall not take effect until it has been approved, together with
any related agreements and supplements, by votes of a majority of both (a) the
Board of Trustees of the Trust, and (b) those Trustees of the Trust who are not
"interested persons" (as defined in the 1940 Act) and have no direct or indirect
financial interest in the operation of the Plan or any agreements related to it
(the "Plan Trustees"), cast in person at a meeting (or meetings) called for the
purpose of voting on the Plan and such related agreements.
7. The Plan shall continue in effect so long as such continuance is
specifically approved at least annually in the manner provided for approval of
the Plan in paragraph 6.
8. Any person authorized to direct the disposition of monies paid or
payable by an Administrative Class pursuant to the Plan or any related agreement
shall provide to the Trust's Board of Trustees, and the Board shall review, at
least quarterly, a written report of the amounts so expended and the purposes
for which such expenditures were made.
9. Any agreement related to the Plan shall be in writing and shall provide:
(a) that such agreement may be terminated at any time as to a Fund, without
payment of any penalty, by vote of a majority of the Plan Trustees, on not more
than sixty (60) days' written notice to any other party to the agreement; and
(b) that such agreement shall terminate automatically in the event of its
assignment.
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<PAGE>
10. The Plan may be amended at any time with respect to a Fund by the Board
of Trustees, provided that any amendment to increase materially the costs which
the Administrative Class shares may bear for administrative services pursuant to
the Plan shall be effective only upon approval as provided in paragraph 6
hereof.
11. While the Plan is in effect, the selection and nomination of Trustees
who are not interested persons (as defined in the Act) of the Trust shall be
committed to the discretion of the Trustees who are not interested persons.
12. The Trust shall preserve copies of the Plan, any related agreement and
any report made pursuant to paragraph 8 hereof, for a period of not less than
six (6) years from the date of the Plan, such agreement or report, as the case
may be, the first two (2) years of which shall be in an easily accessible place.
13. It is understood and expressly stipulated that neither the holders of
shares of any Fund nor any Trustee, officer, agent or employee of the Trust
shall be personally liable hereunder, nor shall any resort be had to other
private property for the satisfaction of any claim or obligation hereunder, but
the Trust only shall be liable.
IN WITNESS WHEREOF, the Trust has adopted this Administrative Services Plan
effective as of the ______ day of ____________, 1994.
PIMCO FUNDS
By: _____________________________
TITLE:
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