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EXHIBIT NO. EXHIBIT NAME EXHIBIT NO.
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5(a)(ii) Form of Amended and Restated Investment 99.B5(a)(ii)
Advisory Agreement
AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
AGREEMENT, made the 15th day of November, 1994 and amended and
restated effective as of this ___ day of _________, 199_ between PIMCO Funds:
Multi-Manager Series ("Trust"), a Massachusetts business trust, and PIMCO
Advisors L.P. ("Adviser"), a limited partnership.
WHEREAS, the Trust is registered with the Securities and Exchange
Commission ("SEC") as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust is authorized to issue shares of beneficial
interest ("Shares") in separate series with each such series representing
interests in a separate portfolio of securities and other assets; and
WHEREAS, the Trust has established multiple series, including
operational series or series that are expected to be operational that are
designated as the PIMCO International Fund, PIMCO International Developed Fund,
PIMCO Emerging Markets Fund, PIMCO Capital Appreciation Fund, PIMCO Mid Cap
Growth Fund, PIMCO Small Cap Growth Fund, PIMCO Micro Cap Growth Fund, PIMCO
Renaissance Fund, PIMCO Core Equity Fund, PIMCO Growth Fund, PIMCO Mid Cap
Equity Fund, PIMCO Target Fund, PIMCO Opportunity Fund, PIMCO Innovation Fund,
PIMCO Tax Exempt Fund, PIMCO Equity Income Fund, PIMCO Value Fund, PIMCO Small
Cap Value Fund, PIMCO Enhanced Equity Fund, PIMCO Structured Emerging Markets
Fund, PIMCO Balanced Fund, and PIMCO Precious Metals Fund, such series together
with any other series subsequently established by the Trust, with respect to
which the Trust desires to retain the Adviser to render investment advisory
services hereunder, and with respect to which the Adviser is willing to do so,
being herein collectively referred to also as the "Funds"; and
WHEREAS, the Adviser is registered with the SEC as an investment
adviser under the Investment Advisers Act of 1940; and
WHEREAS, the Adviser is the parent company or an affiliate of other
companies that render investment advisory services and are registered as
investment advisers under the Investment Advisers Act of 1940; and
WHEREAS, the Trust desires to retain the Adviser so that it and its
subsidiaries and affiliates will render investment advisory services to the
Funds in the manner and on the terms hereinafter set forth; and
WHEREAS, the Adviser is willing to render such services and engage its
subsidiaries, affiliates, and others to render such services to the Trust;
NOW, THEREFORE, in consideration of the premises, the promises, and
mutual covenants herein contained, it is agreed between the parties as follows:
1. Appointment. The Trust hereby appoints the Adviser to provide
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investment advisor services to the Trust with respect to the Funds for the
period and on the terms set forth in this Agreement. The Adviser accepts such
appointment and agrees to render the services herein set forth for the
compensation herein provided.
In the event the Trust establishes and designates additional series
with respect to which it desires to retain the Adviser to render investment
advisory services hereunder, it shall notify the Adviser in writing. If the
Adviser is willing to render such services it shall notify the Trust in writing,
whereupon such additional series shall become a Fund hereunder.
2. Duties. Subject to the general supervision of the Board of
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Trustees, the Adviser shall provide general, overall advice and guidance with
respect to the Funds and provide advice and guidance to the Trust's Trustees. In
discharging these duties the Adviser shall, either directly or indirectly
through others ("Portfolio Managers") engaged by it pursuant to Section 3 of
this Agreement, provide a continuous investment program for each Fund and
determine the composition of the assets of each Fund, including determination of
the purchase, retention, or sale of the securities, cash, and other investments
for the Fund. The Adviser (or Portfolio Manager) will provide investment
research and analysis, which may consist of a computerized investment
methodology, and will conduct a continuous program of evaluation, investment,
sales, and reinvestment of the Fund assets by determining the securities and
other investments that shall be
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purchased, entered into, sold, closed, or exchanged for the Fund, when these
transactions should be executed, and what portion of the assets of the Fund
should be held in the various securities and other investments in which it may
invest, and the Adviser (or Portfolio Manager) is hereby authorized to execute
and perform such services on behalf of the Fund. To the extent permitted by the
investment policies of the Fund, the Adviser (or Portfolio Manager) shall make
decisions for the Fund as to foreign currency matters and make determinations as
to the retention or disposition of foreign currencies or securities or other
instruments denominated in foreign currencies or derivative instruments based
upon foreign currencies, including forward foreign currency contracts and
options and futures on foreign currencies, and shall execute and perform the
same. The Adviser (or Portfolio Manager) will provide the services under this
Agreement for each Fund in accordance with the Fund's investment objective or
objectives, investment policies, and investment restrictions as stated in the
Trust's Registration Statement filed on Form N-1A with the SEC as supplemented
or amended from time to time.
In performing these duties, the Adviser, either directly or indirectly
through others selected by the Adviser:
(a) Shall conform with the 1940 Act and all rules and regulations
thereunder, all other applicable federal and state laws and
regulations, with any applicable procedures adopted by the Trust's
Board of Trustees, and with the provisions of the Trust's Registration
Statement filed on Form N-1A as supplemented or amended from time to
time.
(b) Shall use reasonable efforts to manage each Fund so that it
qualifies as a regulated investment company under Subchapter M of the
Internal Revenue Code.
(c) Is responsible, in connection with its responsibilities
under this Section 2, for decisions to buy and sell securities and
other investments for the Funds, for broker-dealer and futures
commission merchant ("FCM") selection, and for negotiation of
commission rates. The Adviser's (or Portfolio Manager's) primary
consideration in effecting a
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security or other transaction will be to obtain the best execution for
the Fund, taking into account the factors specified in the Prospectus
and Statement of Additional Information for the Trust, as they may be
amended or supplemented from time to time. Subject to such policies as
the Board of Trustees may determine and consistent with Section 28(e)
of the Securities Exchange Act of 1934, the Adviser (or Portfolio
Manager) shall not be deemed to have acted unlawfully or to have
breached any duty created by this Agreement or otherwise solely by
reason of its having caused the Fund to pay a broker or dealer, acting
as agent, for effecting a portfolio transaction at a price in excess
of the amount of commission another broker or dealer would have
charged for effecting that transaction, if the Adviser (or Portfolio
Manager) determines in good faith that such amount of commission was
reasonable in relation to the value of the brokerage and research
services provided by such broker or dealer, viewed in terms of either
that particular transaction or the Adviser's (or Portfolio Manager's)
overall responsibilities with respect to the Fund and to their other
clients as to which they exercise investment discretion. To the extent
consistent with these standards, and in accordance with Section 11(a)
of the Securities Exchange Act of 1934 and Rule 11a2-(T) thereunder,
and subject to any other applicable laws and regulations, the Adviser
(or Portfolio Manager) is further authorized to allocate the orders
placed by it on behalf of the Fund to the Adviser (or Portfolio
Manager) if it is registered as a broker or dealer with the SEC, to
its affiliate that is registered as a broker or dealer with the SEC,
or to such brokers and dealers that also provide research or
statistical research and material, or other services to the Fund or
the Adviser (or Portfolio Manager). Such allocation shall be in such
amounts and proportions as the Adviser shall determine consistent with
the above standards, and, upon request, the Adviser will report on
said allocation regularly to the Board of Trustees of the Trust
indicating the broker-dealers to which such allocations have been made
and the basis therefor.
(d) May, on occasions when the purchase or sale of a security is
deemed to be in the best interest of a Fund as well as any other
investment advisory clients,
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to the extent permitted by applicable laws and regulations, but shall
not be obligated to, aggregate the securities to be so sold or
purchased with those of its other clients where such aggregation is
not inconsistent with the policies set forth in the Registration
Statement. In such event, allocation of the securities so purchased or
sold, as well as the expenses incurred in the transaction, will be
made by the Adviser (or Portfolio Manager) in a manner that is fair
and equitable in the judgment of the Adviser (or Portfolio Manager) in
the exercise of its fiduciary obligations to the Trust and to such
other clients.
(e) Will, in connection with the purchase and sale of securities
for each Fund, arrange for the transmission to the custodian for the
Trust on a daily basis, such confirmation, trade tickets, and other
documents and information, including, but not limited to, Cusip,
Sedol, or other numbers that identify securities to be purchased or
sold on behalf of the Fund, as may be reasonably necessary to enable
the custodian to perform its administrative and recordkeeping
responsibilities with respect to the Fund, and, with respect to
portfolio securities to be purchased or sold through the Depository
Trust Company, will arrange for the automatic transmission of the
confirmation of such trades to the Trust's custodian.
(f) Will make available to the Trust, promptly upon request, any
of the Funds' investment records and ledgers as are necessary to
assist the Trust to comply with requirements of the 1940 Act and the
Investment Advisers Act of 1940, as well as other applicable laws, and
will furnish to regulatory authorities having the requisite authority
any information or reports in connection with such services which may
be requested in order to ascertain whether the operations of the Trust
are being conducted in a manner consistent with applicable laws and
regulations.
(g) Will regularly report to the Trust's Board of Trustees on the
investment program for each Fund and the issuers and securities
represented in each Fund's portfolio, and will furnish the Trust's
Board of
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Trustees with respect to the Funds such periodic and special reports
as the Trustees may reasonably request.
3. Appointment of Portfolio Managers. The Adviser may, at its
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expense and subject to its supervision, engage one or more persons, including,
but not limited to, subsidiaries and affiliated persons of the Adviser, to
render any or all of the investment advisory services that the Adviser is
obligated to render under this Agreement including, for one or more of the Funds
and, to the extent required by applicable law, subject to the approval of the
Trust's Board of Trustees and/or the shareholders of one or more of the Funds, a
person to render investment advisory services including the provision of a
continuous investment program and the determination of the composition of the
securities and other assets of such Fund or Funds.
4. Documentation. The Trust has delivered copies of each of the
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following documents to the Adviser and will deliver to it all future amendments
and supplements thereto, if any:
(a) the Trust's Registration Statement as filed with the SEC and
any amendments thereto; and
(b) exhibits, powers of attorneys, certificates and any and all
other documents relating to or filed in connection with the
Registration Statement described above.
The Adviser has delivered to the Trust copies of the Adviser's and the
Portfolio Managers' Uniform Application for Investment Adviser Registration on
Form ADV, as filed with the SEC. The Adviser agrees to provide the Trust with
current copies of the Adviser's and the Portfolio Managers' Forms ADV, and any
supplements or amendments thereto, as filed with the SEC.
5. Records. The Adviser agrees to maintain and to preserve for the
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periods prescribed under the 1940 Act any such records as are required to be
maintained by the Adviser with respect to the Funds by the 1940 Act. The Adviser
further agrees that all records which it maintains for the Funds are the
property of the Trust and it will promptly surrender any of such
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records upon request.
6. Expenses. During the term of this Agreement, the Adviser will
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pay all expenses incurred by it in connection with its obligations under this
Agreement, except such expenses as are assumed by the Funds under this Agreement
and any expenses that are paid by a party other than the Trust under the terms
of any other agreement to which the Trust is a party or a third-party
beneficiary. The Adviser further agrees to pay or cause its subsidiaries or
affiliates to pay all salaries, fees, and expenses of any officer or Trustee of
the Trust who is an officer, director, or employee of the Adviser or a
subsidiary or affiliate of the Adviser. The Adviser assumes and shall pay for
maintaining its staff and personnel and shall, at its own expense provide the
equipment, office space, and facilities necessary to perform its obligations
under this Agreement. The Adviser shall not, under the terms of this Agreement,
bear the following expenses (although the Adviser or an affiliate may bear
certain of these expenses under one or more other agreements):
(a) Expenses of all audits by Trust's independent public
accountants;
(b) Expenses of the Trust's transfer agent(s), registrar,
dividend disbursing agent(s), and shareholder recordkeeping services;
(c) Expenses of the Trust's custodial services, including
recordkeeping services provided by the custodian;
(d) Expenses of obtaining quotations for calculating the value of
each Fund's net assets;
(e) Expenses of obtaining Portfolio Activity Reports for each
Fund;
(f) Expenses of maintaining the Trust's tax records;
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(g) Salaries and other compensation of any of the Trust's
executive officers and employees, if any, who are not officers,
directors, stockholders, or employees of the Adviser, its subsidiaries
or affiliates, or any Portfolio Manager of the Trust;
(h) Taxes, if any, levied against the Trust or any of its Funds;
(i) Brokerage fees and commissions in connection with the
purchase and sale of portfolio securities for any of the Funds;
(j) Costs, including the interest expenses, of borrowing money;
(k) Costs and/or fees incident to meetings of the Trust's
shareholders, the preparation and mailings of prospectuses and reports
of the Trust to its shareholders, the filing of reports with
regulatory bodies, the maintenance of the Trust's existence and
qualification to do business, and the registration of shares with
federal and state securities authorities;
(l) The Trust's legal fees, including the legal fees related to
the registration and continued qualification of the Trust's shares for
sale;
(m) Costs of printing certificates representing shares of the
Trust;
(n) Trustees' fees and expenses to trustees who are not officers,
employees, or stockholders of the Adviser, its subsidiaries or
affiliates, or any Portfolio Manager of the Trust;
(o) The Trust's pro rata portion of the fidelity bond required by
Section 17(g) of the 1940 Act, or other insurance premiums;
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(p) Association membership dues;
(q) Extraordinary expenses as may arise, including expenses
incurred in connection with litigation, proceedings, other claims and
the legal obligations of the Trust to indemnify its trustees,
officers, employees, shareholders, distributors, and agents with
respect thereto; and
(r) Organizational and offering expenses and, if applicable,
reimbursement (with interest) of underwriting discounts and
commissions.
7. Liability. The Adviser shall give the Trust the benefit of the
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Adviser's best judgment and efforts in rendering services under this Agreement.
The Adviser may rely on information reasonably believed by it to be accurate and
reliable. As an inducement for the Adviser's undertaking to render services
unless this Agreement, the Trust agrees that neither the Adviser nor its
stockholders, partners, limited partners, officers, directors, employees, or
agents shall be subject to any liability for, or any damages, expenses or losses
incurred in connection with, any act or omission or mistake in judgment
connected with or arising out of any services rendered under this Agreement,
except by reason of willful misfeasance, bad faith, or gross negligence in
performance of the Adviser's duties, or by reason of reckless disregard of the
Adviser's investment advisory obligations and duties under this Agreement.
8. Independent Contractor. The Adviser shall for all purposes
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herein be deemed to be an independent contractor and shall, unless otherwise
expressly provided herein or authorized by the Board of Trustees of the Trust
from time to time, have no authority to act for or represent the Trust in any
way or otherwise be deemed its agent.
9. Compensation. As compensation for the services rendered under
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this Agreement, the Trust shall pay to the Adviser a fee at an annual rate of
the average daily net assets of each of the Funds as set forth on the Schedule
attached hereto. The
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fees payable to the Adviser for all of the Funds shall be computed and accrued
daily and paid monthly. If the Adviser shall serve for less than any whole
month, the foregoing compensation shall be prorated.
10. Non-Exclusivity. It is understood that the services of the
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Adviser hereunder are not exclusive, and the Adviser shall be free to render
similar services to other investment companies and other clients whether or not
their investment objectives are similar to those of any of the Funds.
11. Term and Continuation. This Agreement shall take effect as of
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the date hereof, and shall remain in effect, unless sooner terminated as
provided herein, with respect to a Fund for a period of two years following the
date set forth on the attached Schedule. This Agreement shall continue
thereafter on an annual basis with respect to a Fund provided that such
continuance is specifically approved at least annually (a) by the vote of a
majority of the Board of Trustees of the Trust, or (b) by vote of a majority of
the outstanding voting shares of the Fund, and provided continuance is also
approved by the vote of a majority of the Board of Trustees of the Trust who are
not parties to this Agreement or "interested persons" (as defined in the 0000
Xxx) of the Trust, or the Adviser, cast in person at a meeting called for the
purpose of voting on such approval. This Agreement may not be materially amended
without a majority vote of the outstanding voting shares (as defined in the 0000
Xxx) of the pertinent Fund or Funds.
However, any approval of this Agreement by the holders of a majority
of the outstanding shares (as defined in the 0000 Xxx) of a particular Fund
shall be effective to continue this Agreement with respect to such Fund
notwithstanding (a) that this Agreement has not been approved by the holders of
a majority of the outstanding shares of any other Fund or (b) that this
Agreement has not been approved by the vote of a majority of the outstanding
shares of the Trust, unless such approval shall be required by any other
applicable law or otherwise. This Agreement will terminate automatically with
respect to the services provided by the Adviser in event of its assignment, as
that term is defined in the 1940 Act, by the Adviser.
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This Agreement may be terminated:
(a) by the Trust at any time with respect to the services provided
by the Adviser, without the payment of any penalty, by vote of a
majority of the Board of Trustees of the Trust or by a vote of a
majority of the outstanding voting shares of the Trust or, with
respect to a particular Fund, by vote of a majority of the outstanding
voting shares of such Fund, on 60 days' written notice to the Adviser
or, in the case of the PIMCO Growth Fund, PIMCO Target Fund, PIMCO
Opportunity Fund, PIMCO Innovation Fund, PIMCO Tax Exempt Fund, PIMCO
Renaissance Fund, PIMCO Precious Metals Fund, and PIMCO International
Fund, by a vote of a majority of the Trustees of the Trust who are not
"interested persons" (as such term is defined in the 1940 Act) of the
Trust;
(b) by the Adviser at any time, without the payment of any
penalty, upon 60 days' written notice to the Trust.
12. Use of Name. It is understood that the name "PIMCO Advisors
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L.P." or "PIMCO" or any derivative thereof or logo associated with those names
are the valuable property of the Adviser and its affiliates, and that the Trust
and/or the Funds have the right to use such names (or derivatives or logos) only
so long as this Agreement shall continue with respect to such Trust and/or
Funds. Upon termination of this Agreement, the Trust (or Fund) shall forthwith
cease to use such names (or derivatives or logos) and, in the case of the Trust,
shall promptly amend its Declaration of Trust to change its name.
13. Notices. Notices of any kind to be given to the Adviser by the
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Trust shall be in writing and shall be duly given if mailed or delivered to the
Adviser at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, or to such
other address or to such individual as shall be specified by the Adviser.
Notices of any kind to be given to the Trust by the Adviser shall be in writing
and shall be duly given if mailed or delivered to 000 Xxxxxxx Xxxxxx Xxxxx,
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, or to such other address or to such individual
as shall be specified by the Trust.
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14. Fund Obligation. A copy of the Trust's Second Amended and
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Restated Agreement and Declaration of Trust is on file with the Secretary of the
Commonwealth of Massachusetts and notice is hereby given that the Agreement has
been executed on behalf of the Trust by a trustee of the Trust in his or her
capacity as trustee and not individually. The obligations of this Agreement
shall only be binding upon the assets and property of the Trust and shall not be
binding upon any trustee, officer, or shareholder of the Trust individually.
15. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original.
16. Miscellaneous. (a) This Agreement shall be governed by the laws
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of California, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act, the Investment Advisers Act of 1940, or any rule
or order of the SEC thereunder.
(b) If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder
of this Agreement shall not be affected thereby and, to this extent,
the provisions of this Agreement shall be deemed to be severable. To
the extent that any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise with regard to
any party hereunder, such provisions with respect to other parties
hereto shall not be affected thereby.
(c) The captions in this Agreement are included for convenience
only and in no way define any of the provisions hereof or otherwise
affect their construction or effect.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below on the day and year first above
written.
PIMCO FUNDS: MULTI-MANAGER
SERIES
Attest: By:
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Title: Title:
PIMCO ADVISORS L.P.
Attest: By:
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Title: Title:
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Schedule to Amended and Restated
Investment Advisory Agreement
Effective
Fund Fee Rate Date
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PIMCO Tax Exempt Fund .30% 01/14/1997
PIMCO Capital Appreciation .45% 11/15/1994
PIMCO Mid Cap Growth .45% 11/15/1994
PIMCO Equity Income .45% 11/15/1994
PIMCO Value .45% 11/15/1994
PIMCO Enhanced Equity .45% 11/15/1994
PIMCO Balanced .45% 11/15/1994
PIMCO Structured Emerging Markets .45% 09/15/1996
PIMCO Growth .50% 01/14/1997
PIMCO International .55% 01/14/1997
PIMCO Target .55% 01/14/1997
PIMCO Core Equity .57% 12/28/1994
PIMCO International Developed .60% 11/15/1994
PIMCO Renaissance .60% 01/14/1997
PIMCO Small Cap Value .60% 11/15/1994
PIMCO Precious Metals .60% 01/14/1997
PIMCO Mid Cap Equity .63% 12/28/1994
PIMCO Opportunity .65% 01/14/1997
PIMCO Innovation .65% 01/14/1997
PIMCO Emerging Markets .85% 11/15/1996
PIMCO Small Cap Growth 1.00% 11/15/1996
PIMCO Micro Cap Growth 1.25% 11/15/1996
