AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 4, 1999
REGISTRATION NO. 33-87874
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM N-1A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 [X]
PRE-EFFECTIVE AMENDMENT NO. [ ]
POST-EFFECTIVE AMENDMENT NO. 7 [X]
AND/OR
REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940 [X]
AMENDMENT NO. 12
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MUTUAL OF AMERICA INSTITUTIONAL FUNDS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
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320 PARK AVENUE
NEW YORK, NEW YORK 10022
(ADDRESS OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)(ZIP CODE)
(212) 224-1939
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
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DOLORES J. MORRISSEY, PRESIDENT
MUTUAL OF AMERICA INSTITUTIONAL FUNDS, INC.
320 PARK AVENUE, NEW YORK, NEW YORK 10022
(NAME AND ADDRESS OF AGENT FOR SERVICE)
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COPY TO:
STANLEY M. LENKOWICZ
SENIOR VICE PRESIDENT, DEPUTY GENERAL COUNSEL AND SECRETARY
MUTUAL OF AMERICA INSTITUTIONAL FUNDS, INC.
320 PARK AVENUE
NEW YORK, NEW YORK 10022
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APPROXIMATE DATE OF PROPOSED PUBLIC OFFERING: As soon as practicable after the
effective date of the Registration Statement.
IT IS PROPOSED THAT THIS FILING WILL BECOME EFFECTIVE:
[X] immediately upon filing pursuant to paragraph (b).
[ ] on (date) pursuant to paragraph (b) of Rule 485.
[ ] 60 days after filing pursuant to paragraph (a)(1) of
Rule 485.
[ ] on (date) pursuant to paragraph (a)(1) of Rule 485.
[ ] 75 days after filing pursuant to paragraph (a)(2)
[ ] on (date) pursuant to paragraph (a)(2) of Rule 485
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<PAGE>
MUTUAL OF AMERICA INSTITUTIONAL FUNDS, INC.
CROSS-REFERENCE SHEET
<TABLE>
<CAPTION>
ITEMS IN
PART A OF
FORM N-1A CAPTION IN FORM N-1A CAPTION OR LOCATION IN PROSPECTUS
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C>
1 Front and Back Cover Pages .............. Front and Back Covers
2 Risk/Return Summary:
Investments, Risks, and Performance ..... Summary of How Our Funds Invest
3 Risk/Return Summary:
Fee Table ............................... Summary of How Our Funds Invest - Annual Fees and
Expenses
4 Investment Objectives, Principal
Investment Strategies, and Related
Risks ................................... Details about How Our Funds Invest and Related Risks
5 Management's Discussion of Fund
Performance ............................. Not Applicable (Included in Annual Report)
6 Management, Organization, and
Capital Structure ....................... Management of the Funds
7 Shareholder Information ................. Information on Fund Shares
8 Distribution Agreements ................. Not Applicable
9 Financial Highlights Information ........ Financial Highlights
</TABLE>
<TABLE>
<CAPTION>
ITEMS IN
PART B OF CAPTION OR LOCATION IN
FORM N-1A CAPTION IN FORM N-1A STATEMENT OF ADDITIONAL INFORMATION
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C>
10 Cover Page and Table of Contents ......... Cover
11 Fund History ............................. Investment Company's Form of Operations
12 Description of the Fund and Its
Investments and Risks .................... Investment Strategies and Related Risks; Fundamental
Investment Restrictions; Description of Corporate Bond
Ratings; Use of Standard & Poor's Indices
13 Management of the Fund ................... Management of the Investment Company
14 Control Persons and Principal Holders
of Securities ............................ Investment Company's Form of Operations
15 Investment Advisory and Other
Services ................................. Investment Advisory Arrangements; Administrative
Arrangements; Independent
Auditors; Custodian
16 Brokerage Allocation and Other
Practices ................................ Portfolio Transactions and Brokerage
17 Capital Stock and Other Securities ....... Investment Company's Form of Operations
18 Purchase, Redemption, and Pricing of
Shares ................................... Purchase, Redemption and Pricing of Shares
19 Taxation of the Fund ..................... Taxation of the Investment Company
20 Underwriters ............................. Distribution of Fund Services
21 Calculation of Performance Data .......... Yield and Performance Information
22 Financial Statements ..................... Financial Statements
</TABLE>
ITEMS IN
PART C OF CAPTION IN FORM N-1A AND IN PART C
FORM N-1A OF REGISTRATION STATEMENT
- ----------------------------------------------
23 Exhibits
24 Persons Controlled by or Under
Common Control with the Fund
25 Indemnification
26 Business and Other Connections of
the Investment Adviser
27 Principal Underwriters
28 Location of Accounts and Records
29 Management Services
30 Undertakings
<PAGE>
PART C. OTHER INFORMATION
ITEM 23. EXHIBITS
<TABLE>
<S> <C>
1(a) Articles of Incorporation of Mutual of America Institutional Funds, Inc.
(the "Fund"), dated October 26, 1995 (1)
1(b) Articles Supplementary, dated February 20, 1996 (1)
1(c) Articles Supplementary, dated April 8, 1996 (1)
1(d) Articles Supplementary, dated December 2, 1996 (1)
1(e) Articles Supplementary, dated February 24, 1997 (1)
1(f) Articles Supplementary, dated April 6, 1999 (2)
2 By-Laws of the Fund (1)
4(a) Form of Investment Advisory Agreement, as amended effective May 1,
1999, between the Fund and Mutual of America Capital Management
Corporation (the "Adviser") (3)
4(b) Form of Subadvisory Agreement between the Adviser and Fred Alger
Management, Inc. (5)
4(c) Form of Subadvisory Agreement between the Adviser and Oak Associates (5)
4(d) Form of Subadvisory Agreement between the Adviser and Palley-Needelman
Asset Management, Inc. (5)
5 Distribution Agreement between the Fund and Mutual of America Securities
Corporation, as Distributor (1)
7 Custody Agreement between the Fund and The Chase Manhattan Bank (6)
8(a) Form of Transfer Agency and Service Agreement between the Fund and State
Street Bank and Trust Company (6)
8(b) Form of Investment Accounting Agreement between the Fund and the Adviser
(4)
8(c) Agreement to Pay Operating Expenses between the Fund and the Adviser (1)
9 Consent and Opinion of General Counsel (2)
10(a) Consent of Arthur Andersen LLP (2)
10(b) Consent of Swidler Berlin Shereff Friedman, LLP (2)
10(c) Powers of Attorney of Ms. Morrissey and Messrs. Altstadt, Kearney, Sharkey
and Silber (5)
10(d) Power of Attorney of Patrick J. Waide, Jr. (4)
10(e) Powers of Attorney of John R. Greed and Stanley Shmishkiss (3)
27.1-3 Financial Data Schedules for All America, Bond and Money Market Funds (2)
</TABLE>
- --------------
(1) Included in this Post-Effective Amendment No. 7
(2) Included in Post-Effective Amendment No. 6 filed with the Commission on
April 15, 1999
(3) Included in Post-Effective Amendment No. 5 filed with the Commission on
February 12, 1999
(4) Included in Post-Effective Amendment No. 2 filed with the Commission on
February 28, 1997
(5) Included in Pre-Effective Amendment No. 4 filed with the Commission on
March 15, 1996
(6) Included in Pre-Effective Amendment No. 3 filed with the Commission on
January 29, 1996
C-1
<PAGE>
ITEM 24. PERSONS CONTROLLED BY OR UNDER COMMON CONTROL WITH REGISTRANT
The Adviser is an indirect wholly-owned subsidiary of Mutual of America
Life Insurance Company (Mutual of America Life). Mutual of America Life is a New
York mutual life insurance company, and as such no person has the direct of
indirect power to control Mutual of America Life except by virtue of a persons
capacity as a director or executive officer. Each holder of an in-force
insurance policy or annuity contract issued by Mutual of America Life has the
right to vote for the election of directors of Mutual of America Life at annual
elections and upon other corporate matters where policyholders' votes are taken.
Mutual of America Life directly or indirectly owns the following companies:
Mutual of America Life Insurance Company, a New York mutual insurance company,
wholly owns
o Mutual of America Corporation, a Delaware corporation, and
o Mutual of America Foundation, a New York not-for-profit corporation.
Mutual of America Corporation wholly owns
o The American Life Insurance Company of New York, a New York stock
corporation,
o Mutual of America Securities Corporation, a Delaware corporation, and
o Mutual of America Capital Management Corporation (the Adviser), a
Delaware corporation.
Mutual of America Life Insurance Company and The American Life Insurance Company
of New York, through their separate accounts, wholly own all of the shares of
Mutual of America Investment Corporation, a Maryland corporation registered
under the 1940 Act as a management investment company whose shares are offered
only to those separate accounts for funding variable life insurance and variable
annuity products.
Mutual of America Life Insurance Company currently owns a majority of
Registrant's outstanding shares.
ITEM 25. INDEMNIFICATION
ARTICLES OF INCORPORATION OF THE FUND. The Articles of Incorporation of
the Fund provide in substance that no director or officer of the Fund shall be
liable to the Fund or its shareholders for money damages, unless the director
or officer is subject to liability by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of duties in the conduct of his or her
office.
BY-LAWS OF THE FUND. The By-Laws of the Fund provide for the
indemnification of present and former officers and directors of the Fund
against liability by reason of service to the Fund, unless the officer or
director is subject to liability by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct of
his or her office (Disabling Conduct). No indemnification shall be made to an
officer or director unless there has been a final adjudication on the merits, a
dismissal of a proceeding for insufficiency of evidence of Disabling Conduct,
or a reasonable determination has been made that no Disabling Conduct occurred.
The Fund may advance payment of expenses only if the officer or director to be
indemnified undertakes to repay the advance unless indemnification is made and
if one of the following applies: the officer of director provides a security
for his or her undertaking, the Fund is insured against losses from any lawful
advances, or a reasonable determination has been made that there is reason to
believe the officer or director ultimately will be entitled to indemnification.
INSURANCE. Coverage for officers and director of the Adviser, Distributor
and the Fund is provided under an Investment Management insurance policy issued
by American International Specialty Lines Insurance Company, with excess
coverage by Chubb custom Insurance Company, to Mutual of America Life Insurance
Company et al. The aggregate limit of liability under the policy per year is
$10 million, with a $200,000 deductible per entity insured and a $1,000
deductible for individual insureds.
C-2
<PAGE>
BY-LAWS OF THE ADVISER. The By-Laws of Mutual of America Capital
Management Corporation, the Fund's Adviser, provide for the indemnification by
the Corporation of present and former directors and officers of the Corporation
and of any organization for which service is rendered at the request of the
Corporation and permits the advance payment of expenses in certain
circumstances for covered persons in connection with suits by third parties and
derivative suits. Each covered person must have acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the Corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the conduct was unlawful. If in
connection with a derivative suit a covered person shall have been adjudged to
be liable to the Corporation, indemnification shall not be made unless and only
to the extent that the Delaware Court of Chancery or the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such person is entitled to indemnity. Thus, the officers and directors of the
fund and the Adviser are indemnified by the Adviser for their services in
connection with the Fund to the extent set forth in the By-Laws.
BY-LAWS OF THE DISTRIBUTOR. The By-laws of Mutual of America Securities
Corporation, the principal underwriter and distributor for the fund, provide
for the indemnification by the Corporation of present and former directors and
officers of the Corporation and of any organization for which service is
rendered at the request of the Corporation and permits the advance payment of
expenses in certain circumstances for covered persons in connection with suits
by third parties and derivative suits. Each covered person must have acted in
good faith and in a manner the person reasonably believed to be in or not
opposed to the best interests of the Corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe the conduct
was unlawful. If in connection with a derivative suit a covered person shall
have been adjudged to be liable to the Corporation, indemnification shall not
be made unless and only to the extent that the Delaware Court of Chancery or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is entitled to indemnity. Thus, the
officers and directors of the Distributor are indemnified by the Distributor
for their services in connection with the Fund to the extent set forth in the
By-Laws.
UNDERTAKING. Insofar as indemnification for liability arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, 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 a director, officer, or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities 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 its it against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
C-3
<PAGE>
ITEM 26. BUSINESS AND OTHER CONNECTIONS OF THE INVESTMENT ADVISER
Mutual of America Capital Management corporation (the Adviser) is the
investment adviser to the Fund and is registered as an investment adviser under
the Investment Advisers Act of 1940. The names, addresses and positions with
the Adviser of each director and officer of the Adviser are set forth below.
<TABLE>
<CAPTION>
POSITIONS PRINCIPAL OCCUPATION
NAME WITH ADVISER DURING PAST TWO YEARS
- ---- ------------ ---------------------
<S> <C> <C>
Thomas J. Moran ................ Director, Chairman of President, Chief Executive Officer and
320 Park Avenue the Board Director, Mutual of America Life
NY, NY 10022
F. Harlan Batrus ............... Director Partner, Lazard Freres
30 Rockefeller Plaza
NY, NY 10020
Roger E. Birk .................. Director Chairman Emeritus, Merrill Lynch & Co. Inc.
Merrill Lynch
77 Broad Street
Red Bank, NJ 07701
Robert X. Chandler ............. Director Director, Development Office, Archdiocese of
Director, Development Office Boston
Archdiocese of Boston
2121 Commonwealth Ave.
Brighton, MA 02135
Nathaniel A. Davis ............. Director Vice President, Network Engineering
17680 Old Meadow Rd. Operations, Nextel Communications
McLean, VA 22102
Anthony F. Earley .............. Director Chairman, President and Chief Operating
Detroit Edison Company Officer, Detroit Edison Co.
2000 Second Avenue
Room 2407 WCB
Detroit, MI 48226
William T. Knowles ............. Director Consultant
Orr's Island, ME 04066
Walter A. McDougal ............. Director Former Chairman and President, Richmond
Garden City, NY 11530 Hill Savings Bank
James E. Quinn ................. Director Vice Chairman, Tiffany & Co.
727 Fifth Avenue
NY, NY 10022
Richard J. Ciecka .............. President and Chief Vice Chairman of the Board, Mutual of
320 Park Avenue Financial Officer; America Life, until October 1998
NY, NY 10022 Director
Manfred Altstadt ............... Senior Executive Vice Senior Executive Vice President and Chief
320 Park Avenue President and Chief Financial Officer of Mutual of America Life
NY, NY 10022 Financial Officer and American Life
Patrick A. Burns ............... Senior Executive Vice Senior Executive Vice President and General
320 Park Avenue President and Counsel of Mutual of America Life and
NY, NY 10022 General Counsel American Life
Amir Lear ...................... Executive Vice Senior Vice President, Mutual of America
320 Park Avenue President and Life, until October 1998
NY, NY 10022 Assistant to the
President and CEO
Andrew L. Heiskell ............. Executive Vice Executive Vice President of the Adviser
320 Park Avenue President
NY, NY 10022
Joseph Brunken ................. Senior President Senior Vice President of the Adviser since
320 Park Avenue November, 1997; prior thereto, Vice
NY, NY 10022 President, Nikko Capital Management
(USA), Inc.
</TABLE>
C-4
<PAGE>
<TABLE>
<CAPTION>
POSITIONS PRINCIPAL OCCUPATION
NAME WITH ADVISER DURING PAST TWO YEARS
- ---- ------------ ---------------------
<S> <C> <C>
Mary E. Canning ................ Senior Vice President Senior Vice President of the Adviser since May
320 Park Avenue 1999; prior thereto, Managing
NY, NY 10022 Director/Portfolio Manager at Phoenix Duff &
Phelps
Susan J. Ferber ................ Senior Vice President Senior Vice President of the Adviser since May
320 Park Avenue 1999; prior thereto, Vice President of Business
NY, NY 10022 Development, Argus Investors' Counsel
Jon J. LaBerge ................. Senior Vice President Senior Vice President of the Adviser
320 Park Avenue
NY, NY 10022
Thomas Larsen ............... Executive Vice Executive Vice President of the Adviser since
320 Park Avenue President June 1998; prior thereto, Senior
NY, NY 10022 Vice President, Desai Capital Management
Stanley M. Lenkowicz ........ Senior Vice President, Senior Vice President and Deputy General
320 Park Avenue Deputy General Counsel, Mutual of America Life
NY, NY 10022 Counsel & Secretary
Nancy McAvey ................ Senior Vice President Senior Vice President of the Adviser
320 Park Avenue
NY, NY 10022
John P. Middleton ........... Senior Vice President Senior Vice President of the Adviser since
320 Park Avenue May 1999; prior thereto, Vice President,
NY, NY 10022 Raymond James & Associates
Paul Travers ................ Senior Vice President Senior Vice President of the Adviser
320 Park Avenue
NY, NY 10022
Gary P. Wetterau ............ Senior Vice President Vice President of the Adviser
320 Park Avenue
NY, NY 10022
David Wood .................. Senior Vice President Senior Vice President of the Adviser
320 Park Avenue
NY, NY 10022
Aline Couture ............... Vice President Vice President of the Adviser
320 Park Avenue
NY, NY 10022
Doris Klug .................. Vice President Vice President of the Adviser
320 Park Avenue
NY, NY 10022
Jonathan Lee ................ Vice President Vice President of the Adviser
320 Park Avenue
NY, NY 10022
Robert H. Stewart ........... Vice President Vice President of the Adviser
320 Park Avenue
NY, NY 10022
</TABLE>
Each of Palley-Needelman Asset Management, Inc. ("Palley-Needelman"), Oak
Associates, Ltd. ("Oak Associates") and Fred Alger Management, Inc. ("Alger
Management") is a subadviser for a portion of the Active Assets of the All
America Fund allocated to it. Each subadviser is registered as an investment
adviser under the Investment Advisers Act of 1940. The names, addresses and
positions of each director and officer of each subadviser are incorporated by
reference to the Form ADV of the subadviser filed with the Securities and
Exchange Commission, as set forth below.
Palley-Needelman Asset Management, Inc., Form ADV, SEC File No. 801-9755.
Oak Associates, Ltd., Form ADV, SEC File No. 801-23632.
Fred Alger Management, Inc., Form ADV, SEC File No. 801-06709.
C-5
<PAGE>
ITEM 27. PRINCIPAL UNDERWRITERS
(a) Mutual of America Securities Corporation (the "Distributor"), a
Delaware corporation, is the principal underwriter and distributor for Fund
shares.
(b) The names of the officers and directors of the Distributor, and their
positions with the Distributor and the Fund, are as follows:
<TABLE>
<CAPTION>
POSITION WITH
NAME DISTRIBUTOR POSITION WITH THE FUND
- - ------------------------------ ---------------------------------- ---------------------------------
<S> <C> <C>
Thomas J. Moran .............. Chairman of the Board --
and Director
Dolores J. Morrissey ......... President and CEO President and Director
Amir Lear .................... Senior Vice President and CFO --
Manfred Altstadt ............. Senior Executive Vice Senior Executive Vice President,
President, Treasurer and Treasurer and Director
Director
Patrick A. Burns ............. Senior Executive Vice Senior Executive Vice President,
President, General Counsel and General Counsel and Director
Director
Salvatore R. Curiale ......... Senior Executive Vice --
President and Director
Stanley M. Lenkowicz ......... Senior Vice President, Secretary Senior Vice President, Deputy
and Director General Counsel and Secretary
Howard Lichtenstein .......... Director --
William S. Conway ............ Executive Vice President/ --
Marketing
Paul J. Costagliola .......... Vice President and --
Compliance Officer
</TABLE>
(c) Not applicable.
ITEM 28. LOCATION OF ACCOUNTS AND RECORDS
The records required to be maintained by Section 31(a) of the Investment
Company Act of 1940 and Rules 31a-3 promulgated thereunder, will be maintained
by the Adviser at its offices at 320 Park Avenue, New York, New York 10022 or
with its custodian.
ITEM 29. MANAGEMENT SERVICES
Not applicable.
ITEM 30. UNDERTAKINGS
The Fund hereby undertakes, if requested to do so by the holders of at
least 10% of the Fund's outstanding shares, to call a meeting of shareholders
for the purpose of voting upon the question of removal of a director or
directors and to assist in communications with other shareholders as required
by applicable law and regulations.
C-6
<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 the requirements
for effectiveness of this post-effective amendment to Registration Statement
pursuant to Rule 485(b) under the Securities Act of 1933 and has duly caused
this post-effective amendment to Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New York,
and State of New York on the 4th day of June, 1999.
MUTUAL OF AMERICA INSTITUTIONAL FUNDS, INC.
(Registrant)
By: /s/ DOLORES J. MORRISSEY
-------------------------------------
TITLE: PRESIDENT
Pursuant to the requirement of the Securities Act of 1933, this post-
effective amendment to Registration Statement has been signed below by the
following persons in the capacities indicated on June 4, 1999.
<TABLE>
<CAPTION>
SIGNATURES TITLE
---------- -----
<S> <C>
/s/ DOLORES J. MORRISSEY President and Director
- --------------------------------------- (Principal Executive Officer)
(DOLORES J. MORRISSEY)
* Director
- ---------------------------------------
KEVIN M. KEARNEY
* Director
- ---------------------------------------
JOHN T. SHARKEY
* Director
- ---------------------------------------
JOHN R. SILBER
* Director
- ---------------------------------------
STANLEY SHMISHKISS
* Director
- ---------------------------------------
PATRICK J. WAIDE, JR.
* Executive Vice President and Chief Financial Officer
- --------------------------------------- (Principal Financial and Accounting Officer)
JOHN R. GREED
*By /s/ DOLORES J. MORRISSEY
----------------------------------
(DOLORES J. MORRISSEY, ATTORNEY-IN-FACT)
</TABLE>
C-7
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER PAGE
------- ----
1(a) Articles of Incorporation of Mutual of America Institutional Funds,
Inc. (the "Fund"), dated October 26, 1995
1(b) Articles Supplementary, dated February 20, 1996
1(c) Articles Supplementary, dated April 8, 1996
1(d) Articles Supplementary, dated December 2, 1996
1(e) Articles Supplementary, dated February 24, 1997
2 By-Laws of the Fund
5 Distribution Agreement between the Fund and Mutual of America
Securities Corporation, as Distributor
8(c) Agreement to Pay Operating Expenses between the Fund and the Adviser
ARTICLES OF INCORPORATION
OF
MUTUAL OF AMERICA INSTITUTIONAL FUNDS, INC.
ARTICLE I - Incorporator
I, the incorporator, Stanley M. Lenkowicz, whose post office address is
666 Fifth Avenue, 4th Floor, New York, New York 10103, being at least eighteen
years of age, am, under and by virtue of the general laws of the State of
Maryland authorizing the formation of corporations, forming a corporation.
ARTICLE II - Name
The name of the corporation (hereinafter called the Corporation) is Mutual
of America Institutional Funds, Inc.
ARTICLE III - Purposes
The purpose for which the Corporation is formed is to act as an open-end
management investment company, registered as such with the Securities and
Exchange Commission pursuant to the Investment Company Act of 1940 as amended
(the 1940 Act), and for any other lawful purposes.
ARTICLE IV - Address in Maryland
The post office address of the principal office of the Corporation in the
State of Maryland is c/o CT Corporation System, 32 South Street, Baltimore,
Maryland 21202. The name of the Corporation's resident agent is The Corporation
Trust Incorporated, and its post office address is 32 South Street, Baltimore,
Maryland 21202. Said resident agent is a corporation of the State of Maryland.
ARTICLE V - Common Stock
Section 1.
(a) The Corporation has authority to issue one billion (1,000,000,000)
shares of common stock (the Shares) of the par value of $.01 each, having an
aggregate par value of $10,000,000, in any class or classes, each comprising
such number of Shares and having such preferences, rights, voting powers,
restrictions, limitations as to dividends, qualifications and terms of
redemption as shall be determined by resolution of the Board of Directors of the
Corporation.
-1-
<PAGE>
The Board of Directors shall have the power and authority, by resolution
adopted by such Board and by causing articles supplementary, if required by
Section 2-208 or Section 2-208.1 or the successor thereto of the Maryland
General Corporation Law, to be filed with the State Department of Assessments
and Taxation of Maryland (the Department) to:
(i) establish and designate one or more classes of Shares and
authorize the issuance of Shares of each such class, including
determination of the preferences, conversion or other rights, voting
powers, restrictions, limitations as to dividends, qualifications, or
terms or conditions of redemption of the Shares;
(ii) at any time when there are no Shares outstanding for a
particular class previously established and designated by the Board of
Directors, eliminate such class;
(iii) increase or decrease the aggregate number of Shares or the
number of Shares of any class that the Corporation has authority to issue;
(iv) classify or reclassify any unissued Shares from time to time by
setting or changing the preferences, conversion or other rights, voting
powers, restrictions, limitations as to dividends, qualifications, or
terms or conditions of redemption of such unissued Shares.
(b) A description of the relative preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends, qualifications
and terms and conditions of redemption of all classes of Shares is as follows,
unless otherwise set forth in the articles supplementary filed with the
Department describing any further class or classes from time to time created by
the Board of Directors:
(i) Assets Belonging to Class. All consideration received by the
Corporation for the issue or sale of Shares of a particular class,
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 class for all purposes, subject only to the rights of creditors, and
shall be so recorded upon the books of account of the Corporation. Such
consideration, assets, income, earnings, profits and proceeds, 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 together with any General Items
(as hereinafter defined) allocated to that class as provided in the
following sentence, are herein referred to as assets belonging to that
class. In the event there are any assets, income, earnings, profits or
proceeds thereof, funds or payments which
-2-
<PAGE>
are not readily identifiable as belonging to any particular class
(collectively General Items), the Board of Directors shall allocate such
General Items to and among any one or more of the classes created from
time to time, in such manner and on such basis as the Board of Directors
in its sole discretion deems fair and equitable; and any General Items so
allocated to a particular class shall belong to that class. Each such
allocation by the Board of Directors shall be conclusive and binding upon
the stockholders of all classes for all purposes.
(ii) Liabilities Belonging to Class. The assets belonging to each
particular class shall be charged with the liabilities of the Corporation
in respect of that class and with all expenses, costs, charges and
reserves attributable to that class, and shall be so recorded upon the
books of account of the Corporation. Such liabilities, expenses, costs,
charges and reserves, together with any General Items of Liability (as
hereinafter defined) allocated to that class as provided in the following
sentence, so charged to that class are herein referred to as liabilities
belonging to that class. In the event there are any general liabilities,
expenses, costs, charges or reserves of the Corporation which are not
readily identifiable as belonging to any particular class (collectively
General Items of Liability), the Board of Directors shall allocate and
charge General Items of Liability to and among any one or more of the
classes created from time to time, in such manner and on such basis as the
Board of Directors in its sole discretion deems fair and equitable; and
any General Items of Liability so allocated and charged to a particular
class shall belong to that class. Each such allocation by the Board of
Directors shall be conclusive and binding upon the stockholders of all
classes for all purposes.
(iii) Dividends. Dividends and distributions with respect to Shares
of a particular class may be paid to the holders of Shares of that class
at such times, in such manner and from such of the income and capital
gains accrued or realized from the assets belonging to that class, after
providing for actual and accrued liabilities belonging to that class, as
the Board of Directors may determine.
(iv) Liquidation. In the event of the liquidation or dissolution of
the Corporation or of one or more classes, the stockholders of each class
that is being liquidated shall be entitled to receive, as a class, when
and as declared by the Board of Directors, the excess of the assets
belonging to that class over the liabilities belonging to that class. The
assets so distributable to the stockholders of any particular class shall
be distributed among such stockholders in proportion to the number of
Shares of that class held by them and recorded on the books of the
Corporation.
(v) Equality. Each Share of any particular class shall represent an
equal and proportionate interest in the assets belonging to that class
(subject to the
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<PAGE>
liabilities belonging to that class); however, the provisions of this
sentence shall not restrict any distinctions permissible pursuant to
subsection (iii) of this Section 1(b) or otherwise under these Articles of
Incorporation that may exist with respect to stockholder elections to
receive dividends or distributions in cash or Shares of the same class or
that may otherwise exist with respect to dividends and distributions with
respect to Shares if the same class.
(vi) Conversion or Exchange Rights. Subject to compliance with the
requirements of the 1940 Act, and unless the Board of Directors shall have
provided otherwise by resolution, holders of Shares of any class shall
have the right to convert to other classes of Shares in accordance with
such requirements and procedures as may be established by the Board of
Directors.
(vii) Fractional Shares. The Corporation may issue, sell, redeem,
repurchase and otherwise deal in and with its Shares in fractional Shares,
and any such fractional Shares shall carry proportionately all the rights
of a whole Share, excepting any right to receive a certificate evidencing
such fractional Shares, but including, without limitation, the right to
vote, the right to receive dividends and distributions, and the right to
participate upon liquidation of the Corporation or any class.
Section 2.
Each Share also shall be subject to the following provisions:
(a) The net asset value per Share of a particular class shall be the
quotient obtained by dividing the value of the net assets of that class (being
the value of the total assets belonging to that class less the liabilities
belonging to that class) by the total number of Shares of that class
outstanding. Subject to subsection (b) of this Section 2, the value of the total
assets belonging to each class shall be determined by, determined pursuant to
the direction of, or determined pursuant to procedures or methods (which
procedures or methods may differ from class to class) prescribed or approved by,
the Board of Directors in its sole discretion, and shall be so determined at the
time or times (which time or times may differ from class to class) prescribed or
approved by the Board of Directors in its sole discretion.
(b) The net asset value of each Share of a particular class shall be
determined in accordance with any applicable provision of the 1940 Act, any
applicable rule, regulation or order of the Securities and Exchange Commission
thereunder, and any applicable rule or regulation made or adopted by any
securities association registered under the Securities Exchange Act of 1934.
(c) All Shares now or hereafter authorized shall be subject to redemption
and redeemable at the option of the stockholder, in the sense used in the
General Laws of the State of Maryland authorizing the formation of corporations.
Each holder of a Share of any class,
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<PAGE>
upon request to the Corporation accompanied by surrender of the appropriate
stock certificate or certificates (if any) in proper form for transfer, shall be
entitled to require the Corporation to redeem all or any part of the Shares of
that class standing in the name of such holder on the books of the Corporation
at the net asset value per Share of that class determined in accordance with
subsection (a) of this Section 2 less any applicable contingent deferred sales
charge.
(d) Notwithstanding subsection (c) of this Section 2, the Board of
Directors of the Corporation may suspend the right of the holders of Shares of
any or all classes to require the Corporation to redeem such Shares or may
suspend any voluntary purchase of such Shares:
(i) for any period (A) during which the New York Stock Exchange is
closed other than customary weekend and holiday closings, or (B) during
which trading on the New York Stock Exchange is restricted;
(ii) for any period during which an emergency, as defined by the
rules of the Securities and Exchange Commission or any successor thereto,
exists as a result of which (A) disposal by the Corporation of securities
owned by it and belonging to the affected class or classes is not
reasonably practicable, or (B) it is not reasonably practicable for the
Corporation fairly to determine the value of the net assets of the
affected class or classes; or
(iii) for such period as the Securities and Exchange Commission or
any successor thereto may by order permit for the protection of the
stockholders of the Corporation.
(e) The Board of Directors may by resolution from time to time authorize
the purchase by the Corporation, either directly or through an agent, of Shares
of any class upon such terms and conditions and for such consideration as the
Board of Directors shall deem advisable out of funds legally available therefor
at prices per Share not in excess of their net asset value per Share of the
class determined in accordance with subsection (a) of this Section 2 and to take
all other steps deemed necessary or advisable in connection therewith.
(f) The Corporation may in its discretion redeem, at the current net asset
value, outstanding shares not offered for redemption which are held by any
stockholder whose Shares of a particular class, in the aggregate, have a then
total net asset value of less than $5,000 or such other amount as the Directors
shall determine by resolution and subject to any limitations of applicable law
(the "Minimum Amount"), provided that prior to any such proposed redemption the
Corporation shall have given such stockholder written notice that the then
current aggregate net asset value of the stockholder's shares is less than the
Minimum Amount and allowed the stockholder to make additional investments in
order to increase the then current aggregate net asset value of the
stockholder's shares to at least the Minimum Amount.
(g) Except as otherwise permitted by the 1940 Act, payment of the
redemption price of Shares of any class surrendered to the Corporation for
redemption pursuant to the provisions of subsection (c) or (f) of this Section 2
or for purchase by the Corporation pursuant to the provisions of
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<PAGE>
subsection (e) of this Section 2 shall be made by the Corporation within seven
days after surrender of such Shares to the Corporation for such purpose. Any
such payment may be made in whole or in part in portfolio securities or in cash
belonging to such class, as the Board of Directors shall deem advisable, and no
stockholder shall have the right, other than as determined by the Board of
Directors, to have any Shares redeemed in portfolio securities.
(h) In the absence of any specifications as to the purposes for which
Shares are redeemed or repurchased by the Corporation, all Shares so redeemed or
repurchased shall be deemed to be acquired for retirement in the sense
contemplated by the laws of the State of Maryland. Shares of any class retired
by repurchase or redemption shall thereafter have the status of authorized but
unissued Shares of that class.
(i) The Board of Directors or the By-Laws of the Corporation may authorize
the issue of Shares of one or more classes without certificates.
Section 3.
No holder of Shares of any class shall, as such holder, have any
preemptive right to purchase or subscribe for any Shares of that or any other
class which the Corporation may issue or sell (whether out of the number of
Shares authorized by the Articles of Incorporation, or out of any Shares
acquired by the Corporation after the issue thereof, or otherwise).
Section 4.
All persons who shall acquire Shares in the Corporation shall acquire the
same subject to the provisions of these Articles of Incorporation.
ARTICLE VI - Directors
(a) The initial number of directors of the Corporation shall be three, and
the names of those who shall act as such until their successors are duly elected
and qualify are as follows:
Dolores J. Morrissey
Manfred Altstadt
Patrick A. Burns
(b) The By-Laws of the Corporation may fix the number of directors at not
less than three and not more than ten and may specify the tenure of office of
the directors. The By-Laws of the Corporation may divide the directors of the
Corporation into classes and prescribe the tenure of office of the several
classes, in which case no class shall be elected for a shorter period than one
year or for a longer period than five years, and the term of office of at least
one class shall expire each year.
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<PAGE>
(c) The Board of Directors shall have the management and control of the
property, business and affairs of the Corporation and is hereby vested with all
the powers possessed by the Corporation to the extent consistent with law and
these Articles of Incorporation. Without limitation of the foregoing, it is
expressly declared that, subject to these Articles of Incorporation, the Board
of Directors shall have power:
(i) to make, alter, amend or repeal from time to time the By-Laws of
the Corporation, except as such power may otherwise be limited in the
By-Laws;
(ii) to authorize the purchase of Shares of any class at prices not
in excess of their net asset value for Shares of that class determined in
accordance with subsection (a) of Section 2 of Article V hereof, provided
that the Corporation has assets legally available for such purpose, and to
pay for such Shares in cash, securities or other assets then held or owned
by the Corporation;
(iii) To declare and pay dividends and distributions from funds
legally available therefor on Shares of such class or classes, in such
amounts, if any, and in such manner (including declaration by means of a
formula or other similar method of determination whether or not the amount
of the dividend or distribution so declared can be calculated at the time
of such declaration) and to the stockholders of record as of such date, as
the Board of Directors may determine.
(d) The directors of the Corporation may receive compensation for their
services, subject, however, to such limitation with respect thereto as may be
determined from time to time by the stockholders.
ARTICLE VII - Liability of Officers and Directors
(a) To the fullest extent permitted by Maryland and federal statutory and
decisional law, as amended or interpreted, no director or officer of this
Corporation shall be personally liable to the Corporation or its stockholders
for money damages; provided however, that nothing herein shall be deemed to
protect any director or officer of the Corporation against any liability to the
Corporation or its stockholders to which such director or officer would
otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his or
her office.
(b) Any determination made in good faith and, so far as accounting matters
are involved, in accordance with generally accepted accounting principles by or
pursuant to the direction of the Board of Directors, shall be final and
conclusive, and shall be binding upon the Corporation and all holders of Shares,
past, present and future, of each class, and Shares are issued and sold on the
condition and undertaking, evidenced by acceptance of certificates for such
Shares by, or confirmation of such Shares being held for the account of, any
stockholder, that any and all such determinations shall be binding.
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<PAGE>
ARTICLE VIII - Voting and Other Shareholder Rights
(a) On each matter submitted to a vote of the stockholders, each holder of
a Share shall be entitled to one vote for each full Share and a fractional vote
for each fractional share, irrespective of the class, standing in such holder's
name on the books of the Corporation irrespective of the class thereof and all
Shares of all classes shall vote as a single class (Single class Voting);
provided, however, that (i) as to any matter with respect to which a separate
vote of any class is required by the 1940 Act or under Maryland General
Corporation Law, such requirements as to a separate vote by that class shall
apply in lieu of Single class Voting as described above; (ii) in the event that
the separate vote requirements referred to in (i) above apply with respect to
one or more classes, then, subject to (iii) below, the Shares of all other
classes shall vote as a single class; and (iii) as to any matter which does not
affect the interest of a particular class, including but not limited to any
proposal to liquidate any other class, only the holders of Shares of the one or
more affected classes shall be entitled to vote.
(b) The presence in person or by proxy of the holders of record of
one-third of the Shares of all classes issued and outstanding and entitled to
vote thereat shall constitute a quorum for the transaction of any business at
all meetings of the stockholders except as otherwise provided by law or in these
Articles of Incorporation and except that where the holders of Shares of any
class are entitled to a separate vote as a class (a Separate Class) or where the
holders of Shares of two or more (but not all) classes are required to vote as a
single class (a Combined Class), the presence in person or by proxy of the
holders of record of one-third of the Shares of that Separate Class or Combined
Class, as the case may be, issued and outstanding and entitled to vote thereat
shall constitute a quorum for such vote.
Notwithstanding any provision of law requiring action to be taken or
authorized by the affirmative vote of the holders of a designated proportion
greater than a majority of the outstanding Shares of all classes or of the
outstanding Shares of a particular class or classes, as the case may be, such
action shall be valid and effective if taken or authorized by the affirmative
vote of the holders of a majority of the total number of Shares of all classes
or of the total number of Shares of such class or classes, as the case may be,
outstanding and entitled to vote thereupon pursuant to the provisions of these
Articles of Incorporation.
(c) Any vote of stockholders authorizing liquidation of the Corporation or
any one or more classes, or proceedings for the dissolution of the Corporation
or any one or more classes, may authorize the Board of Directions to determine,
as provided herein, or if provision is not made herein, in accordance with
generally accepted accounting principles, which assets are the assets belonging
to each class available for distribution to stockholders of the class and may
divide, or authorize the Board of Directors to divide, such assets among the
stockholders of that class in such manner as to ensure that each stockholder
will receive an equal and proportionate amount of the value of the assets
(determined as aforesaid) belonging to that class upon such liquidation or
dissolution.
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<PAGE>
(d) Except as required by law, the holders of Shares shall have only such
right to inspect the records, documents, accounts and books of the Corporation
as may be granted by the Board of Directors of the Corporation.
ARTICLE IX - Amendments
The Corporation reserves the right from time to time to amend, alter or
repeal any of the provisions of these Articles of Incorporation (including any
amendment that changes the terms of any of the outstanding Shares by
classification, reclassification or otherwise), and to add or insert any other
provisions that may, under the statutes of the State of Maryland at the time in
force, be lawfully contained in articles of incorporation, and all rights at any
time conferred upon the stockholders of the Corporation by these Articles of
Incorporation are subject to the provisions of this Article IX.
ARTICLE X - PERPETUAL EXISTENCE
The duration of the Corporation shall be perpetual.
---------------------------------------
The term Articles of Incorporation as used herein and in the By-Laws of
the Corporation shall be deemed to mean these Articles of Incorporation as
amended from time to time and any restatement thereof.
---------------------------------------
I acknowledge this document to be my act, and state that with respect to
all matters and facts herein, to the best of my knowledge, information and
belief such matters and facts are true in all material respects and that this
statement is made under the penalties of perjury.
October 26, 1994
/s/ Stanley M. Lenkowicz
------------------------
Stanley M. Lenkowicz
Sole Incorporator
-9-
Exhibit 1(b)
ARTICLES SUPPLEMENTARY
OF
MUTUAL OF AMERICA INSTITUTIONAL FUNDS, INC.
Mutual of America Institutional Funds, Inc., a Maryland corporation (the
Corporation), with its principal office c/o Corporation Trust Incorporated, 32
South Street, Baltimore, Maryland 21202, hereby certifies to the State
Department of Assessments and Taxation of Maryland that:
FIRST: The total number of shares of capital stock of all classes that the
Corporation has authority to issue is one billion (1,000,000,000) shares of
common stock, par value $.01 per share, with an aggregate par value of ten
million dollars ($10,000,000).
SECOND: Pursuant to authority vested in the Board of Directors of the
Corporation by Article V of the Articles of Incorporation of the Corporation
(the Articles), the Board of Directors has duly designated and established the
following classes of shares:
Equity 3,000,000 shares
Bond 3,000,000 shares
The relative preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications and terms and
conditions of redemption of all such classes are as set forth in paragraph (b)
of Section 1 of Article V of the Articles.
IN WITNESS WHEREOF, the President of the Corporation has signed these
Articles Supplementary in the Corporation's name and on its behalf and
acknowledges that these Articles Supplementary are the act of the Corporation,
and states that to the best of her knowledge, information and belief all matters
and facts set forth therein relating to the authorization and approval of the
Articles Supplementary are true in all material respects and that this statement
is made under the penalties of perjury.
Date: February 20, 1996
MUTUAL OF AMERICA
INSTITUTIONAL FUNDS, INC.
Attest:
/s/ Dolores J. Morrissey
------------------------
Dolores J. Morrissey
/s/ Stanley M. Lenkowicz President
- --------------------------
Stanley M. Lenkowicz
Secretary
(seal)
Exhibit 1(c)
ARTICLES SUPPLEMENTARY
OF
MUTUAL OF AMERICA INSTITUTIONAL FUNDS, INC.
Mutual of America Institutional Funds, Inc., a Maryland corporation (the
Corporation), with its principal office c/o Corporation Trust Incorporated, 32
South Street, Baltimore, Maryland 21202, hereby certifies to the State
Department of Assessments and Taxation of Maryland that:
FIRST: The total number of shares of capital stock of all classes that the
Corporation has authority to issue is one billion (1,000,000,000) shares of
common stock, par value $.01 per share, with an aggregate par value of ten
million dollars ($10,000,000).
SECOND: Pursuant to authority vested in the Board of Directors of the
Corporation by Article V of the Articles of Incorporation of the Corporation
(the Articles), the Board of Directors has duly redesignated the Equity Fund as
the All America Fund, with 3,000,000 shares.
The relative preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications and terms and
conditions of redemption of such class are as set forth in paragraph (b) of
Section 1 of Article V of the Articles.
IN WITNESS WHEREOF, the President of the Corporation has signed these
Articles Supplementary in the Corporation's name and on its behalf and
acknowledges that these Articles Supplementary are the act of the Corporation,
and states that to the best of her knowledge, information and belief all matters
and facts set forth therein relating to the authorization and approval of the
Articles Supplementary are true in all material respects and that this statement
is made under the penalties of perjury.
Date: April 8, 1996
MUTUAL OF AMERICA
INSTITUTIONAL FUNDS, INC.
Attest:
/s/ Dolores J. Morrissey
------------------------
Dolores J. Morrissey
/s/ Stanley M. Lenkowicz President
- --------------------------
Stanley M. Lenkowicz
Secretary
(seal)
Exhibit 1(d)
ARTICLES SUPPLEMENTARY
OF
MUTUAL OF AMERICA INSTITUTIONAL FUNDS, INC.
Mutual of America Institutional Funds, Inc., a Maryland corporation (the
Corporation), with its principal office c/o Corporation Trust Incorporated, 32
South Street, Baltimore, Maryland 21202, hereby certifies to the State
Department of Assessments and Taxation of Maryland that:
FIRST: The total number of shares of capital stock of all classes that the
Corporation has authority to issue is one billion (1,000,000,000) shares of
common stock, par value $.01 per share, with an aggregate par value of ten
million dollars ($10,000,000).
SECOND: Pursuant to authority vested in the Board of Directors of the
Corporation by Article V of the Articles of Incorporation of the Corporation
(the Articles), the authorized shares allocated to the All America Fund and Bond
Fund are increased to the following:
All America Fund - 25,000,000
Bond Fund - 15,000,000
The relative preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications and terms and
conditions of redemption of such class are as set forth in paragraph (b) of
Section 1 of Article V of the Articles.
IN WITNESS WHEREOF, the President of the Corporation has signed these
Articles Supplementary in the Corporation's name and on its behalf and
acknowledges that these Articles Supplementary are the act of the Corporation,
and states that to the best of her knowledge, information and belief all matters
and facts set forth therein relating to the authorization and approval of the
Articles Supplementary are true in all material respects and that this statement
is made under the penalties of perjury.
Date: December 2, 1996
MUTUAL OF AMERICA
INSTITUTIONAL FUNDS, INC.
Attest:
/s/ Dolores J. Morrissey
------------------------
Dolores J. Morrissey
/s/ Stanley M. Lenkowicz President
- --------------------------
Stanley M. Lenkowicz
Secretary
(seal)
Exhibit 1(e)
ARTICLES SUPPLEMENTARY
OF
MUTUAL OF AMERICA INSTITUTIONAL FUNDS, INC.
Mutual of America Institutional Funds, Inc., a Maryland corporation (the
Corporation), with its principal office c/o Corporation Trust Incorporated, 32
South Street, Baltimore, Maryland 21202, hereby certifies to the State
Department of Assessments and Taxation of Maryland that:
FIRST: The total number of shares of capital stock of all classes that the
Corporation has authority to issue is one billion (1,000,000,000) shares of
common stock, par value $.01 per share, with an aggregate par value of ten
million dollars ($10,000,000).
SECOND: Pursuant to authority vested in the Board of Directors of the
Corporation by Article V of the Articles of Incorporation of the Corporation
(the Articles), the Board of Directors has duly designated and established the
following class of shares:
Money Market Fund 15,000,000 shares
The relative preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications and terms and
conditions of redemption of such class are as set forth in paragraph (b) of
Section 1 of Article V of the Articles.
IN WITNESS WHEREOF, the President of the Corporation has signed these
Articles Supplementary in the Corporation's name and on its behalf and
acknowledges that these Articles Supplementary are the act of the Corporation,
and states that to the best of her knowledge, information and belief all matters
and facts set forth therein relating to the authorization and approval of the
Articles Supplementary are true in all material respects and that this statement
is made under the penalties of perjury.
Date: February 24, 1997
MUTUAL OF AMERICA
INSTITUTIONAL FUNDS, INC.
Attest:
/s/ Dolores J. Morrissey
------------------------
Dolores J. Morrissey
/s/ Stanley M. Lenkowicz President
- --------------------------
Stanley M. Lenkowicz
Secretary
(seal)
Exhibit 2
MUTUAL OF AMERICA INSTITUTIONAL FUNDS, INC.
(A Maryland Corporation)
BY-LAWS
ARTICLE I - Stockholders
Section l. Place of Meeting. All meetings of the stockholders shall be
held at the principal office of the Corporation in the State of New York, or at
such other place within the United States as may from time to time be designated
by the Board of Directors and stated in the notice of such meeting.
Section 2. Annual Meetings. The Corporation shall not be required to hold
an annual meeting of stockholders in any year in which the election of directors
is not required under the Investment Company Act of 1940, as amended (1940 Act),
or the 1940 Act does not otherwise require a meeting to be held. An annual
meeting of the stockholders of the Corporation, if held, shall be on such date
and at such hour as may be from time to time designated by the Board of
Directors and stated in the notice of such meeting, for the purpose of electing
directors and for the transaction of such other business as may properly be
brought before the meeting.
Section 3. Special Meetings. Special meetings of the stockholders for any
purpose or purposes may be called by the Chairman of the Board, the President or
a majority of the Board of Directors, and shall be called by the Secretary upon
receipt of the request in writing signed by stockholders holding not less than
25% of the common stock issued and outstanding and entitled to vote thereat,
except that a meeting for the purpose of considering the removal of one or more
directors shall be called by the Secretary upon receipt of a request in writing
signed by stockholders holding not less than 10% of the common stock issued and
outstanding and entitled to vote thereat. The Secretary shall assist stockholder
communication for the purpose of obtaining signatures to a request for a meeting
for the purpose of considering the removal of one or more directors, essentially
as set forth in Section 16(c) of the 1940 Act. A stockholders' request that the
Secretary call a meeting shall state the purpose or purposes of the proposed
meeting. The Secretary shall inform such stockholders of the reasonably
estimated costs of preparing and mailing notice of the requested meeting. Upon
payment to the Corporation of such costs by such stockholders, the Secretary
shall give notice, stating the purpose or purposes of the meeting as required in
these By-Laws, to all stockholders entitled to notice of the meeting. No meeting
need be called upon the request of the holders of shares entitled to be cast at
that meeting to consider any matter which is substantially the same as a matter
voted upon at any meeting of stockholders held during the preceding twelve
months.
Section 4. Notice of Meetings of Stockholders. Not less than ten days' and
not more than ninety days' written notice of every meeting of stockholders,
stating the time and place thereof and the general nature of the business
proposed to be transacted thereat, shall be given to each stockholder entitled
to vote thereat by delivering the same to such stockholder at such
<PAGE>
stockholder's principal place of business or by mailing it, postage prepaid, and
addressed to such stockholder at such stockholder's address as it appears upon
the books of the Corporation. If mailed, notice shall be deemed to be given when
deposited in the United States mail addressed to the stockholder. Any
stockholder who attends any meeting of stockholders in person or by proxy or any
stockholder who executes a waiver of notice which is filed with the records of
the meeting, either before or after the holding thereof, waives notice of the
meeting.
Section 5. Record Dates. The Board of Directors may fix, in advance, a
date not exceeding ninety days preceding the date of any meeting of
stockholders, any dividend payment date or any date for the allotment of rights,
as a record date for the determination of the stockholders entitled to notice of
and to vote at such meeting or entitled to receive such dividends or rights, and
only stockholders of record on that date shall be entitled to notice of and to
vote at that meeting or to receive such dividends or rights. In the case of a
meeting of stockholders, such date shall not be less than ten days prior to the
date fixed for such meeting. The record date also may not be prior to the close
of business on the day the record date is fixed.
Section 6. Quorum, Adjournment of Meetings. Subject to Article VIII of the
Corporation's Articles of Incorporation, the presence in person or by proxy of
the holders of record of one-third of the shares of the common stock of the
Corporation issued and outstanding and entitled to vote thereat shall constitute
a quorum at all meetings of the stockholders. If a quorum shall not be present
at any meeting of the stockholders, the holders of a majority of the stock
present in person or by proxy shall have power to adjourn the meeting from time
to time (but not more than 120 days after the original record date for the
meeting) without notice other than announcement at the meeting, until a quorum
shall be present. At such adjourned meeting at which a quorum shall be present,
any business may be transacted which might have been transacted at the meeting
as originally noticed.
Section 7. Conduct of Stockholders' Meetings. Each meeting of the
stockholders shall be presided over by the Chairman of the Board, or in the
absence of the Chairman of the Board (or, if there is no Chairman of the Board),
by the President, or in the absence of both the Chairman of the Board and the
President, by a Vice President, or if none of them is present, by a chairman to
be elected at the meeting. The Secretary of the Corporation, if present, shall
act as secretary of the meeting. In the absence of the Secretary, an Assistant
Secretary shall so act; if neither the Secretary nor any Assistant Secretary is
present, then a secretary to be elected at the meeting shall so act.
Section 8. Voting and Inspectors. A stockholder may vote Shares in person
or by proxy appointed by instrument in writing subscribed by such stockholder or
the stockholder's duly authorized attorney-in-fact. The chairman of the meeting
may cause a vote by ballot to be taken upon any election or matter, and such
vote shall be taken upon the request of the holders of ten percent (10%) of the
stock entitled to vote on such election or matter.
At any election of directors, the Board of Directors prior thereto may,
or, if they have not so acted, the chairman of the meeting may, and upon the
request of the holders of ten
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<PAGE>
percent (10%) of the stock entitled to vote at such election shall, appoint an
inspector of election who shall first subscribe an oath or affirmation to
execute faithfully the duties of inspector at such election with strict
impartiality and according to the best of his or her ability, and shall after
the election make a certificate of the result of the vote taken. No candidate
for the office of director shall be appointed an inspector of election.
Section 9. Concerning Validity of Proxies, Ballots, etc. At every meeting
of the stockholders, all proxies shall be received and taken in charge of, and
all ballots shall be received and canvassed by, the secretary of the meeting,
who shall decide all questions concerning the qualification of voters, the
validity of the proxies and the acceptance or rejection of votes, unless an
inspector of election shall have been appointed by the chairman of the meeting,
in which event such inspector of election shall decide all such questions.
ARTICLE II - Board of Directors
Section 1. Number and Tenure of Office. The Board of Directors may from
time to time determine the number of directors, which shall be not less than
three nor more than ten. Each director shall hold office until his or her
successor shall have been elected and qualified. If at any time after the first
meeting of stockholders less than a majority of the directors then holding
office has been elected by the stockholders, an annual meeting of the
stockholders shall be called for the purpose of electing the Board of Directors.
Directors need not be stockholders.
Section 2. Vacancies. Except as otherwise provided in Section 1, in case
of any vacancy in the Board of Directors through death, resignation or other
cause, other than an increase in the number of directors, a majority of the
remaining directors, although a majority is less than a quorum, may elect a
successor to hold office until the next meeting of stockholders or until his or
her successor is chosen and qualifies, if, at any time after the first meeting
of stockholders, immediately after filling the vacancy at least two-thirds of
the directors then in office have been elected by the stockholders.
Section 3. Increase or Decrease in Number of Directors. Except as
otherwise provided in Section 1 or 2, the Board of Directors, by the vote of a
majority of the entire Board, may increase the number of directors and elect
directors to fill the vacancies created by any such increase. The Board of
Directors, by the vote of a majority of the entire Board, may likewise decrease
the number of directors, but any such decrease shall not affect the term in
office of any director.
Section 4. Place of Meeting. The directors may hold their meetings at any
place in or outside the State of Maryland as they may from time to time
determine by resolution or as shall be specified or fixed in the respective
notices or waivers of notice.
Section 5. Regular Meetings and Special Meetings. Regular meetings of the
Board of Directors shall be held at such time and on such notice, which may be
oral (including by
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telephone) or written (including by fax), as the directors may from time to time
determine. Special meetings of the Board of Directors may be held from time to
time upon call of the Chairman of the Board, the President, the Secretary or two
or more of the directors, by oral or written notice duly served on or sent or
mailed to each director not less than one day before the meeting.
Section 6. Waiver of Notice. Any director who attends any meeting of the
Board of Directors in person or any director who executes a waiver of notice
that is filed with the records of the meeting either before or after the holding
thereof, waives notice of such meeting. Notice or waiver of notice need not
state the purpose or purposes of the meeting.
Section 7. Quorum. One-third of the directors then in office shall
constitute a quorum for the transaction of business, provided that a quorum
shall in no case be less than two directors. If at any meeting of the Board
there shall be less than a quorum present, a majority of those present may
adjourn the meeting from time to time until a quorum shall have been obtained.
The act of the majority of the directors present at any meeting at which there
is a quorum shall be the act of the Board of Directors, except as may be
otherwise specifically provided by the 1940 Act, the Articles of Incorporation
or these By-Laws.
Section 8. Executive Committee. The Board of Directors may elect from the
directors an Executive Committee to consist of such number of directors (not
less than two) as the Board may from time to time determine. The Chairman of the
Committee shall be elected by the Board of Directors. The Board of Directors
shall have power at any time to change the members of such Committee and may
fill vacancies in the Committee by election from the directors. Between meetings
of the Board of Directors, the Executive Committee may exercise all the powers
of the Board of Directors except those listed in Section 10. The Executive
Committee may fix its own rules of procedure, and may meet when and as provided
by such rules or by resolution of the Board of Directors, but in every case the
presence of a majority shall be necessary to constitute a quorum. During the
absence of a member of the Executive Committee, the remaining members may
appoint a member of the Board of Directors to act in the place of the absent
member.
Section 9. Other Committees. The Board of Directors may appoint other
committees which shall in each case consist of such number of directors (not
less than two) as the Board may from time to time determine and which shall have
and may exercise such powers as the Board may determine in the resolution
appointing them. A majority of all the members of any such committee may
determine its action and fix the time and place of its meetings, unless the
Board of Directors shall otherwise provide. The Board of Directors shall have
power at any time to change the members and powers of any such committee, to
fill vacancies and to discharge any such committee.
Section 10. Powers of Committees. The Board of Directors may delegate to
any of the committees appointed under Section 8 or 9 any of the powers of the
Board of Directors, except the power to: (1) declare dividends or distributions
on stock; (2) issue stock except pursuant to a general formula or method
specified by the Board of Directors by resolution; (3) recommend
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to the stockholders any action which requires stockholder approval; (4) amend
the By-Laws; or (5) approve any merger or share exchange which does not require
stockholder approval.
Section 11. Telephone Meetings. Members of the Board of Directors or a
committee of the Board of Directors may participate in a meeting by means of a
conference telephone or similar communications equipment if all persons
participating in the meeting can hear each other at the same time. Participation
in a meeting by these means constitutes presence in person at the meeting.
Section 12. Action Without a Meeting. Except to the extent otherwise
specifically provided by applicable law, any action required or permitted to be
taken at any meeting of the Board of Directors or any committee thereof may be
taken without a meeting, if a written consent to such action is signed by all
members of the Board or of such committee, as the case may be, and such written
consent is filed with the minutes of the proceedings of the Board or such
committee.
Section 13. Compensation of Directors. No director shall receive any
stated salary or fees from the Corporation for services as such if such director
is, other than by reason of being a director, an interested person (as that term
is defined by the 1940 Act) of the Corporation or of its investment adviser or
principal underwriter. Except as provided in the preceding sentence, directors
shall be entitled to receive such compensation from the Corporation for their
services as may from time to time be voted by the Board of Directors.
ARTICLE III - Officers
Section l. Executive Officers. The executive officers of the Corporation
shall be chosen by the Board of Directors. The officers, none of whom need be
directors, shall include a President, a Secretary and a Treasurer and may
include a Chairman of the Board, one or more Executive Vice Presidents, one or
more Senior Vice Presidents and one or more Vice Presidents. The Board of
Directors or the Executive Committee may also in its discretion appoint
Assistant Secretaries, Assistant Treasurers and other officers, agents and
employees, who shall have such authority and perform such duties as the Board of
Directors or the Executive Committee may determine. The Board of Directors may
fill any vacancy which may occur in any office. Any two offices, except those of
President and Vice President, may be held by the same person, but no officer
shall execute, acknowledge or verify any instrument in more than one capacity,
if such instrument is required by law or these By-Laws to be executed,
acknowledged or verified by two or more officers.
Section 2. Term of Office. The term of office of all officers shall be
until their respective successors are chosen and qualified, and such term of
office shall not create any contract rights in the officer. Any officer may be
removed from office at any time with or without cause by the vote of a majority
of the Board of Directors.
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Section 3. Powers and Duties. The officers of the Corporation shall have
such powers and duties as generally pertain to their respective offices, as well
as such powers and duties not inconsistent with these By-Laws as may from time
to time be conferred on them by the Board of Directors or the Executive
Committee.
ARTICLE IV - Capital Stock
Section l. Transfer of Shares. Unless the Board of Directors directs
otherwise, Shares of the Corporation shall be non-certificated, and issued
Shares shall be maintained in book-entry form by the Corporation. If issued in
certificate form, Shares of the Corporation shall be transferable on the books
of the Corporation by the holder thereof in person or by the holder's duly
authorized attorney or legal representative, upon surrender and cancellation of
certificates, if any, for the same number of shares, duly endorsed or
accompanied by proper instruments of assignment and transfer, with such proof of
the authenticity of the signature as the Corporation or its agents may
reasonably require. In the case of Shares not represented by certificates, the
same or similar requirements shall be imposed, as determined by officers of the
Corporation.
Section 2. Stock Ledgers. The stock ledgers of the Corporation, containing
the names and addresses of the stockholders and the number of shares held by
them respectively, shall be kept at the principal office of the Corporation or,
if the Corporation employs a Transfer Agent, at the office of the Transfer Agent
of the Corporation.
Section 3. Lost, Stolen or Destroyed Certificates. The Board of Directors
or the Executive Committee may determine the conditions upon which a new
certificate of stock of the Corporation of any class may be issued in place of a
certificate which is alleged to have been lost, stolen or destroyed, and may, in
its discretion, require the owner of such certificate to give bond, with
sufficient surety, to indemnify the Corporation against any loss or claims which
may arise as a result of the issue of a new certificate.
ARTICLE V - Corporate Seal
The Board of Directors may provide for a suitable corporate seal, in such
form and bearing such inscriptions as it may determine.
ARTICLE VI - Fiscal Year
The fiscal year of the Corporation shall end on December 31.
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ARTICLE VII - Indemnification
Section 1. The Corporation shall indemnify any present or former director
or officer of the Corporation who, by reason of his or her service in that
capacity, is made a party to any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter collectively referred to as a Proceeding) against judgments,
penalties, fines, settlements, and reasonable expenses actually incurred by such
director or officer in connection with such Proceeding, to the fullest extent
that such indemnification may be lawful under the General Corporation Law of
Maryland, as amended. The Corporation may pay any reasonable expenses so
incurred by any director or officer in defending a Proceeding in advance of the
final disposition thereof to the fullest extent that such advance payment may be
lawful under the applicable Maryland statutory provision. Any payment of
indemnification or advance payment of expenses shall be made subject to and in
accordance with the procedures set forth in the applicable Maryland statutory
provision. However, nothing contained in the Articles of Incorporation or this
Section shall protect or purport to protect any director or officer of the
Corporation against any liability to which he or she would otherwise be subject
by reason of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his or her office (any such
conduct being hereinafter called Disabling Conduct).
Section 2. Notwithstanding Section l, no indemnification shall be paid by
the Corporation to any director or officer unless:
(a) there is a final decision on the merits by a court or other body
before whom the Proceeding was brought that the director or officer
to be indemnified was not liable by reason of Disabling Conduct, or
there is a dismissal of either a court action or an administrative
proceeding against the director or officer for insufficiency of
evidence of any Disabling Conduct; or
(b) a reasonable determination, based upon a review of the facts, is
made that the director or officer to be indemnified was not liable
by reason of Disabling Conduct, which determination shall be made
by:
(i) the vote of a majority of a quorum of directors who are
neither interested persons of the Corporation as defined in
section 2(a)(19) of the 1940 Act nor parties to the related
Proceeding; or
(ii) an independent legal counsel in a written opinion.
Section 3. Notwithstanding Section 1, any advance payment of expenses by
the Corporation to any director or officer of the Corporation shall be made only
upon the written affirmation by such director or officer of his or her good
faith belief that no Disabling Conduct has occurred and the undertaking by such
director or officer to repay the advance unless it is
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ultimately determined that he or she is entitled to indemnification as provided
above, and only if one of the following conditions is met:
(a) the director or officer to be indemnified provides a security for
his or her undertaking; or
(b) the Corporation shall be insured against losses arising by reason of
any lawful advances; or
(c) there is a determination, based on a review of readily available
facts, that there is reason to believe that the director or officer
to be indemnified ultimately will be entitled to indemnification,
which determination shall be made by:
(i) a majority of a quorum of directors who are neither interested
persons of the Corporation as defined in section 2(a)(19) of
the 1940 Act nor parties to the related Proceeding; or
(ii) an independent legal counsel in a written opinion.
ARTICLE VIII - Amendment of By-Laws
The By-Laws of the Corporation may be altered, amended, added to or
repealed by the stockholders or by majority vote of the Board of Directors.
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Exhibit 5
DISTRIBUTION AGREEMENT
AGREEMENT made this 1st day of May, 1996 between MUTUAL OF AMERICA
INSTITUTIONAL FUNDS, INC., a corporation organized under the laws of Maryland
(the "Investment Company"), and MUTUAL OF AMERICA SECURITIES CORPORATION, a
Delaware corporation (the "Distributor"):
W I T N E S S E T H :
WHEREAS, the Investment Company is registered under the Investment Company
Act of 1940, as amended (the "Investment Company Act"), as a diversified
open-end management investment company; and
WHEREAS, the Investment Company is authorized to issue shares of capital
stock ("shares") in separate series, each of which pursues its investment
objective through separate investment policies (each a "Fund"); and
WHEREAS, the Distributor is duly registered as a broker-dealer under the
Securities Exchange Act of 1934 and is a member of the National Association of
Securities Dealers, Inc. (the "NASD"); and
WHEREAS, the Investment Company desires the Distributor to be its
principal underwriter and distributor with respect to distribution of the
shares; and
WHEREAS, the Investment Company and the Distributor wish to enter into an
agreement with each other with respect to the continuous offering of the shares,
in order to promote the growth of the assets of the Investment Company and
facilitate the distribution of its shares;
NOW, THEREFORE, the parties agree as follows:
Section 1. Appointment of the Distributor. The Investment Company hereby
appoints the Distributor as the principal underwriter and distributor of the
Investment Company to sell its shares to persons and entities eligible to
purchase shares ("Purchasers") as set forth in the Investment Company's then
current prospectus ("Prospectus"), and the Distributor hereby accepts such
appointment and agrees to serve without compensation. The Investment Company
during the term of this Agreement shall sell its shares to the Distributor upon
the terms and conditions set forth below.
<PAGE>
Section 2. Exclusive Nature of Duties. The Distributor shall be the
exclusive representative of the Investment Company to act as principal
underwriter and distributor.
Section 3. Purchase of Shares from the Investment Company.
(a) The Investment Company will offer the shares and the Distributor shall
have the right to buy from the Investment Company the shares needed, but not
more than the shares needed (except for clerical errors in transmission) to fill
unconditional orders for shares of the Investment Company placed with the
Distributor by the Purchasers. The price which the Distributor shall pay for the
shares of each Fund so purchased from the Investment Company shall be the net
asset value per share of such Fund, determined as set forth in Section 3(c)
hereof.
(b) The shares of each Fund are to be resold by the Distributor to the
Purchasers at the net asset value per share of such Fund.
(c) The net asset value of shares of each Fund of the Investment Company
shall be determined by the Investment Company, or any agent of the Investment
Company, at the close of trading on the New York Stock Exchange on each business
day on which the New York Stock Exchange is open for trading, in accordance with
the method set forth in the Prospectus and guidelines established by the Board
of Directors of the Investment Company. The Investment Company may also cause
the net asset value of shares of each Fund to be determined in substantially the
same manner or estimated in such manner and as of such other hour or hours as
may from time to time be agreed upon in writing by the Investment Company and
the Distributor. All payments to the Investment Company hereunder shall be made
in the manner set forth in Section 3(e).
(d) The Investment Company shall have the right to suspend the sale of
shares of any of its Funds at times when redemption of any such shares is
suspended pursuant to the conditions set forth in Section 4(b) hereof. The
Investment Company shall also have the right to suspend the sale of shares of
any or all of its Funds if trading on the New York Stock Exchange shall have
been suspended, if a banking moratorium shall have been declared by Federal or
New York authorities, or if there shall have been some other extraordinary
event, which, in the judgment of the Investment Company, makes it impracticable
to sell any such shares.
(e) The Investment Company, or any agent of the Investment Company
designated in writing by the Investment Company, shall be promptly advised of
all purchase orders for shares of each Fund received by the Distributor. The
Investment Company (or its agent) will confirm orders upon their receipt, will
make appropriate book entries and upon receipt by the Investment Company (or its
agent) of payment therefor, will deliver deposit receipts or certificates for
such shares pursuant to the instructions of the Distributor. Payment shall be
made to the Investment Company in Federal funds or as otherwise specified in the
Investment Company's then current Prospectus. The Distributor agrees to cause
such payment and such instructions to be delivered promptly to the Investment
Company (or its agent).
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<PAGE>
Section 4. Repurchase or Redemption of Shares by the Investment Company.
(a) Any of the outstanding shares of each Fund may be tendered for
redemption at any time, and the Investment Company agrees to repurchase or
redeem any such shares so tendered in accordance with its obligations as set
forth in its Articles of Incorporation, as amended from time to time, and in
accordance with the applicable provisions set forth in the Prospectus. The price
to be paid to redeem or repurchase shares of any Fund shall be equal to the net
asset value per share of such Fund calculated in accordance with the provisions
of Section 3(c) hereof. All payments by the Investment Company hereunder shall
be made in the manner set forth below.
The Investment Company shall pay the total amount of the redemption price
as defined in the above paragraph pursuant to the instructions of the
Distributor in Federal funds, or as otherwise specified in the Investment
Company's Prospectus, on or before the second business day subsequent to its
having received the notice of redemption in proper form.
(b) Redemption of shares of any Fund or payment may be suspended at times
when the New York Stock Exchange is closed, when trading on said Exchange is
closed, when trading on said Exchange is restricted, when an emergency exists as
a result of which disposal by the Investment Company of securities owned by it
for such Fund is not reasonably practicable or it is not reasonably practicable
for the Investment Company fairly to determine the value of the net assets of
such Fund, or during any other period when the Securities and Exchange
Commission, by order, so permits.
Section 5. Duties of the Investment Company.
(a) The Investment Company shall furnish to the Distributor copies of all
information, financial statements and other papers which the Distributor may
reasonably request for use in connection with the distribution of shares of the
Investment Company, and this shall include one copy, upon request by the
Distributor, of all financial statements prepared for the Investment Company and
certified by independent public accountants. The Investment Company shall make
available to the Distributor such number of camera ready copies of its
Prospectus, Statement of Additional Information, and supplements thereto, as the
Distributor shall reasonably request.
(b) The Investment Company shall take, from time to time, but subject to
any necessary approval of its shareholders, all necessary action to maintain its
registration as an investment company under the Investment Company Act and to
fix the number of its authorized shares and to register shares under the
Securities Act of 1933, to the end that there will be available for sale such
number of shares as Purchasers may reasonably be expected to purchase.
(c) The Investment Company shall use its best efforts to qualify and
maintain the qualification of an appropriate number of shares of each of its
Funds for sale under the securities laws of such states as the Distributor and
the Investment Company may approve, if such qualification is required by such
securities laws. Any such qualification may be withheld, terminated or withdrawn
by the Investment Company at any time in its discretion. As provided
3
<PAGE>
in Section 8(c) hereof, the expense of qualification and maintenance of
qualification of shares of a Fund shall be borne by such Fund. The Distributor
shall furnish such information and other material relating to its affairs and
activities as may be required by the Investment Company in connection with such
qualification.
(d) The Investment Company will furnish, in reasonable quantities upon
request by the Distributor, copies of annual and interim reports of the
Investment Company.
Section 6. Duties of the Distributor.
(a) The Distributor shall devote reasonable time and effort to effect
sales of shares of the Investment Company, but shall not be obligated to sell
any specific number of shares. The services of the Distributor hereunder are not
to be deemed exclusive and nothing herein contained shall prevent the
Distributor from entering into distribution arrangements with other investment
companies so long as the performance of its obligations hereunder is not
impaired thereby.
(b) In selling the shares of the Investment Company, the Distributor shall
use its best efforts in all respects duly to conform with the requirements of
all federal and state laws and regulations and the regulations of the NASD,
relating to the sale of such securities. Upon the written direction of the
Investment Company, the Distributor may select one or more dealers complying
with such requirements (each a "selected dealer") to participate in the purchase
and sale of Fund shares pursuant to a form of agreement approved by the
Investment Company. Neither the Distributor nor any selected dealer nor any
other person is authorized by the Investment Company to give any information or
to make any representations, other than those contained in the registration
statement or related Prospectus and any sales literature specifically approved
by the Investment Company.
Section 7. Payment of Expenses.
(a) The Investment Company shall bear all costs and expenses of the
Investment Company, including fees and disbursements of its counsel and
auditors, in connection with the preparation and filing of any required
registration statements and prospectuses under the Investment Company Act, the
Securities Act, and all amendments and supplements thereto, and the expense of
preparing, printing, mailing and otherwise distributing to shareholders its
prospectuses, annual or interim reports to shareholders and proxy materials.
(b) Each Fund shall bear the costs and expenses of qualification of shares
of such Fund for sale, and the Distributor shall bear the cost and expense of
qualifying the Distributor as a broker or dealer, in such states of the United
States or other jurisdictions as shall be selected by the Investment Company and
the Distributor pursuant to Section 5(c) hereof. The Investment Company shall
bear the costs and expenses payable to each such state for continuing
qualification of Fund shares therein until the Investment Company decides to
discontinue such qualification pursuant to Section 5(c) hereof.
4
<PAGE>
Section 8. Indemnification.
(a) The Investment Company shall indemnify and hold harmless the
Distributor and each person, if any, who controls the Distributor against any
loss, liability, claim, damage or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, claim, damage or expense
and reasonable counsel fees incurred in connection therewith) arising by reason
of any person acquiring any shares, which may be based upon the Securities Act,
or on any other statute or at common law, on the ground that the Investment
Company's registration statement or related Prospectus, as from time to time
amended and supplemented, or the annual or interim reports to shareholders of
the Investment Company, includes an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, unless such statement or omission
was made in reliance upon, and in conformity with, information furnished to the
Investment Company in connection therewith by or on behalf of the Distributor;
provided, however, that in no case (i) is the indemnity of the Investment
Company in favor of the Distributor and any such controlling persons to be
deemed to protect such Distributor or any such controlling persons thereof
against any liability to the Investment Company or its shareholders to which the
Distributor or any such controlling persons would otherwise be subject by reason
of willful misfeasance, bad faith or gross negligence in the performance of its
duties or by reason of reckless disregard of its obligations and duties under
this Agreement; or (ii) is the Investment Company to be liable under its
indemnity agreement contained in this paragraph with respect to any claim made
against the Distributor or any such controlling persons, unless the Distributor
or such controlling persons, as the case may be, shall have notified the
Investment Company in writing within a reasonable time after the summons or
other first legal process giving information or the nature of the claim shall
have been served upon the Distributor or such controlling persons (or after the
Distributor or such controlling persons shall have received notice of such
service on any designated agent), but failure to notify the Investment Company
of any such claim shall not relieve it from any liability which it may have to
the person against whom such action is brought otherwise than on account of its
indemnity agreement contained in this paragraph. The Investment Company will be
entitled to participate at its own expense in the defense, or, if it so elects,
to assume the defense of any suit brought to enforce any such liability, but if
the Investment Company elects to assume the defense, such defense shall be
conducted by counsel chosen by it and satisfactory to the Distributor or such
controlling person or persons, defendant or defendants in the suit. In the event
the Investment Company elects to assume the defense of any such suit and retain
such counsel, the Distributor or such controlling person or persons, defendant
or defendants in the suit, shall bear the fees and expenses of any additional
counsel retained by them but, in case the Investment Company does not elect to
assume the defense of any such suit, it will reimburse the Distributor or such
controlling person or persons, defendant or defendants in the suit, for the
reasonable fees and expenses of any counsel retained by them. The Investment
Company shall promptly notify the Distributor of the commencement of any
litigation or proceedings against it or any of its officers or directors in
connection with the issuance or sale of the shares.
5
<PAGE>
(b) The Distributor shall indemnify and hold harmless the Investment
Company and each of its directors and officers and each person, if any, who
controls the Investment Company against any loss, liability, claim, damage, or
expense described in the foregoing indemnity contained in subsection (a) of this
Section, (i) but only with respect to statements or omissions made in reliance
upon, and in conformity with, information furnished to the Investment Company in
writing by or on behalf of the Distributor for use in connection with the
Investment Company's registration statement or related Prospectus, as from time
to time amended, or the annual or interim reports to shareholders, or (ii) based
on any breach of this Agreement by the Distributor or any of its officers or
representatives. In case any action shall be brought against the Investment
Company or any person so indemnified, in respect of which indemnity may be
sought against the Distributor, the Distributor shall have the rights and duties
given to the Investment Company, and the Investment Company and each person so
indemnified shall have the rights and duties given to the Distributor by the
provisions of subsection (a) of this Section 8.
Section 9. Duration and Termination of This Agreement. This Agreement
shall become effective as of the date first above written and shall remain in
force for two years and thereafter, but only so long as such continuance is
specifically approved at least annually by (i) the Board of Directors of the
Investment Company, or by the vote of a majority of the outstanding voting
securities of the Investment Company, cast in person or by proxy, and (ii) a
majority of those directors who are not parties to this Agreement or interested
persons of any such party cast in person at a meeting called for the purpose of
voting upon such approval. This Agreement may be terminated at any time, without
the payment of any penalty, by the Board of Directors of the Investment Company
or by vote of a majority of the outstanding voting securities of the Investment
Company, or by the Distributor, on sixty days' written notice to the other
party. This Agreement shall automatically terminate in the event of its
assignment.
The terms "vote of a majority of the outstanding voting securities,"
"assignment," "affiliated person" and "interested person," when used in this
Agreement, shall have the respective meaning specified in the Investment Company
Act.
Section 10. Amendments. This Agreement may be amended by the parties only
if such amendment is specifically approved by (i) the Board of Directors of the
Investment Company, or by the vote of a majority of outstanding voting
securities of the Investment Company, and (ii) a majority of those directors of
the Investment Company who are not parties to this Agreement or interested
persons of any such party cast in person at a meeting called for the purpose of
voting on such approval.
Section 11. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of New York and the applicable provisions of the
Investment Company Act. To the extent the applicable law of the State of New
York, or any of the provisions herein, conflict with the applicable provisions
of the Investment Company Act, the latter shall control.
6
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement in New York, New York as of the day and year first above written.
MUTUAL OF AMERICA
INSTITUTIONAL FUNDS, INC.
Attest: /s/ Stanley M. Lenkowicz By: /s/ Dolores J. Morrissey
------------------------ -------------------------
Secretary President
MUTUAL OF AMERICA SECURITIES
CORPORATION
By: /s/ Amir Lear
-------------------------
Attest: /s/ Stephanie J. Kopp President
------------------------
Secretary
7
Exhibit 8(c)
AGREEMENT TO PAY OPERATING EXPENSES
This Agreement to Pay Operating Expenses is made as of January 1, 1999 between
Mutual of America Capital Management Corporation, a Delaware corporation (the
Adviser), and Mutual of America Institutional Funds, Inc., a Maryland
corporation (the Investment Company).
WHEREAS, the Adviser serves as investment adviser for the portfolios (the Funds)
of the Investment Company; and
WHEREAS, the Adviser has voluntarily reimbursed or otherwise limited the
operating expenses of each of the Funds since its inception date; and
WHEREAS, the Investment Company desires that the Adviser's voluntary payment of
expenses be formalized in this Agreement, and the Adviser is willing to do so on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises herein contained, the
Investment Company and the Adviser, intending to be legally bound, mutually
covenant and agree as follows:
Section 1. Payment of Expenses. The Adviser agrees to reimburse or otherwise
limit the expenses of the Funds, other than for advisory fees, extraordinary
expenses and portfolio transaction costs, so that such expenses will not exceed
the following annual rates of net assets, accrued on a daily basis:
Equity Index Fund -- .20%, All America Fund -- .35%, Bond Fund -- .25%,
and Money Market Fund -- .20%.
As a result of such payment by the Adviser of operating expenses, the Funds will
have maximum total annual expenses, excluding extraordinary expenses and
portfolio transaction costs, at the following annual rates of net assets:
Equity Index Fund -- .325%, All America Fund -- .85%, Bond Fund -- .70%,
and Money Market Fund -- .40%.
Section 2. Determination of Expense Accruals. At least quarterly, the Investment
Company will determine the appropriate daily expense accrual to be assessed
against the net assets of each of the Funds and will inform the Adviser of the
then current rates of expense accruals for the Funds.
<PAGE>
Section 3. Payment of Expenses by the Adviser. The Adviser, on behalf of the
Funds and the Investment Company, will pay all bills and expenses of the Funds
and the Investment Company as they become due and payable, other than for
advisory fees, extraordinary expenses and portfolio transaction costs.
Section 4. Payment of Accrued Amounts to the Adviser. At the end of each
calendar month, the Investment Company will pay, or cause to be paid, to the
Adviser all amounts then held by the Investment Company's custodian as a result
of daily accruals of expenses against the net assets of the Funds during that
calendar month, other than accruals for advisory fees or extraordinary expenses.
For any calendar year, the Adviser shall not receive or retain from any of the
Funds an amount of accrued expenses that exceeds the actual amount of the Fund's
operating expenses for the year.
Section 5. Term of Agreement. This Agreement will continue in effect until
December 31, 1999 and will continue in effect from year to year thereafter
unless cancelled by (i) the Investment Company upon not less than 30 days'
written notice to the Adviser, or (ii) the Adviser upon written notice to the
Investment Company delivered within the two week period between December 16 and
December 30, in which case this Agreement will terminate as of January 1 of the
upcoming year.
IN WITNESS WHEREOF, authorized officers of the Adviser and the Investment
Company have signed this Agreement as of the date first written above.
MUTUAL OF AMERICA CAPITAL MUTUAL OF AMERICA
MANAGEMENT CORPORATION INSTITUTIONAL FUNDS, INC.
By: /s/ Richard J. Ciecka By: /s/ Dolores J. Morrissey
---------------------- ------------------------
Name: Richard J. Ciecka Name: Dolores J. Morrissey
Title: President and CEO Title: President
Attest: Attest:
/s/ Stanley M. Lenkowicz /s/ Stanley M. Lenkowicz
- --------------------------------- ---------------------------------
Stanley M. Lenkowicz Stanley M. Lenkowicz
Senior Vice President, Deputy Senior Vice President, Deputy
General Counsel and Secretary General Counsel and Secretary
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