EXHIBIT (E)(2)
PIMCO FUNDS
PIMCO TOTAL RETURN FUND
JAPAN DEALER SALES CONTRACT
July 14,1998
This Contract (this "Contract) is entered into:
Between: PIMCO Funds Distributors LLC ("PFD")
at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000
and THE NIKKO SECURITIES CO., LTD. ("NIKKO")
at 0-0, Xxxxxxxxxx 0-xxxxx, Xxxxxxx-xx, Xxxxx
1. Appointment of Distributor in Japan
As general distributor of PIMCO FUNDS (the "Trust") and PIMCO Total Return
Fund (the "Fund"), PFD hereby appoints NIKKO as Distributor in Japan of
Administrative Class Shares issued and to be issued by the Fund (the "Shared"),
and NIKKO hereby accepts such appointment, subject to the terms and conditions
set forth herein.
2. Distribution of Shares in Japan
PFD hereby agrees to sell and deliver to NIKKO the Shares, pursuant to
NIKKO's instruction therefor, which are required to fill the subscription orders
which may be placed by investors in Japan for the purpose of the public offering
of the Shares in Japan (the "Public Offering") as contemplated under the
Japanese Securities Registration Statement of the Fund, filed with the relevant
authority in Japan and from time to time up-dated ("Securities Registration
Statement").
NIKKO hereby agrees to distribute in Japan any Shares so delivered to it,
by itself or through any handling securities company/companies in Japan (the
"Handling Securities Companies") which shall act as such, in any manner as PFD
and NIKKO may agree and determine from time to time, which manner is not
inconsistent with the provisions of this Contract, applicable Japanese law, the
rules of the Japan Securities Dealers Association ("JSDA") and the information
contained in the most recent Securities Registration Statement and prospectus
prepared by and on behalf of the Fund (the "Japanese Prospectus"), both of which
are for the purpose of the Public Offering.
It is agreed and understood that the Shares shall be offered for
subscription by NIKKO to investors in Japan only but not outside Japan, unless
otherwise permitted by PFD.
No Shares shall be distributed by NIKKO in Japan pursuant to any of the
provisions hereunder and no orders for the purchase of such Shares hereunder
shall. be accepted in the U.S. by the Trust or PFD from the investors in Japan
(i) if and so long as the effectiveness of the Securities Registration Statement
or any, necessary amendments thereto shall be suspended
pursuant to any of the provisions of the Securities and Exchange Law of Japan
(Law No. 25, 1948, as amended) or (ii) if and so long as the Shares and/or the
Fund are determined not to meet the requirements of the Standards of Selection
of JSDA with respect to the qualification of foreign investment fund securities
for distribution in Japan; provided, however, that nothing contained in this
sub-paragraph shall. in any way restrict or be applied to or alter the
obligation of the Trust or PFD to repurchase Shares from any shareholder in
Japan through NIKKO or any Handling Securities Company in accordance with the
provisions of the most recent Securities Registration Statement.
PFD agrees to notify NIKKO immediately of the non-acceptance or delay,
together with the reasons therefor, if the Trust or PFD, as appropriate, cannot
(i) accept orders for the issue or repurchase of Shares after receipt of such
order, (ii) deliver Shares or the confirmation of acceptance by PFD of the order
in writing in accordance with the provisions of the most recent Securities
Registration Statement or (iii) make payment for repurchase of Shares in
accordance with the provisions of the most recent Securities Registration
Statement.
3. Public Offering
The Public Offering shall be made by NIKKO in Japan in accordance with the
most recent Securities Registration Statement and pursuant to the following
particulars:
(i) Number of Shares to be publicly offered:
To be agreed from lame to tame between PFD and NIKKO, consistent with
the most recent Securities Registration Statement.
(ii) Scheduled period of the Public Offering:
The Shares may be publicly offered for subscription in Japan so long
as the Securities Registration Statement is from time to time filed and
updated by or on behalf of the Fund in every 6 months or in such other
period to be agreed between PFD and NIKKO in accordance with applicable
Japanese law.
4. Offering Price and Fees
The issue price at which NIKKO may publicly offer and sell the Shares in
Japan is an amount equal to the net asset value per Share, as computed from time
to tune by the Fund in accordance with the provisions of the most recent
Securities Registration Statement, subject to any sales charge or account charge
imposed by NIKKO which will be borne by the investors in Japan in accordance
with the provisions of the most recent Securities Registration Statement.
PFD or the Trust will furnish NIKKO with information on a daily bade
regarding the not asset value per Share, and NIKKO agrees to quote such net
asset value in connection with any Shares offered for subscription by NIKKO and
to report it to (i) JSDA in accordance with the rules of JSDA and (ii) any
relevant press in accordance with the then applicable market practice in Japan.
NIKKO shall ensure that each sale is made subject to confirmation by PFD or the
Trust
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of the net a t value per Share computed upon receipt of such order in accordance
with the most recent Securities Registration Statement.
There is no sales charge or dealer discount to NIKKO or any other person on
the reinvestment of dividends and distributions.
PFD may not provide additional promotional incentives or payments to NIKKO
or the Handling Securities Company, unless otherwise agreed between any of them.
5. Manner of Offering, Selling, Purchasing and Redeeming Shares
NIKKO shall be furnished with the Fund's latest Securities Registration
Statement, Japanese Securities Report, Japanese Semi-Annual Securities Report,
Japanese Extraordinary Report and Japanese Prospectus, from time to time updated
or filed pursuant to applicable Japanese laws, and such other supplementary
sales materials prepared in compliance with Japanese laws and regulations, as
NIKKO may reasonably request. NIKKO will offer and distribute as well as accept
an order of redemption from the investor in Japan with respect of the Shares
only in accordance with the terms and conditions of the latest Securities
Registration Statement and Japanese Prospectus of the Fund, from time to time
up-dated pursuant to applicable Japanese laws. Neither NIKKO nor any other
person is authorized to give any information or to make any representations
other than those contained in such Securities Registration Statement and
Japanese Prospectus or in such supplementary ages materials. NIKKO agrees that
it will neither (i) use any other offering materials for the Fund without PFD's
prior written consent nor (ii) distribute Shares of the Fund in Japan with
special services such as life insurance and pension and for commodities.
NIKKO hereby agrees:
(i) to exercise its beat efforts to find purchasers for the Shares of the
Fund,
(ii) to furnish to each person to whom any sale is made a copy of the
latest Japanese Prospectus of the Fund at the time of such sale pursuant to
applicable Japanese laws,
(iii) to transmit to the Trust promptly upon receipt any and all orders
received by NIKKO, and
(iv) to pay to the Trust the issue price or to receive from the Trust the
redemption price, as the case may be, by telegraphic transfer in accordance with
the provisions of the most recent Securities Registration Statement,
If such payment of issue price is not received on such date, the Trust
reserves the right, without prior notice, to cancel the sales. In such case,
the Trust shall have the right to hold NIKKO responsible for any loss incurred
by the Trust or the Fund. If such payment of the redemption price is not
received on such date, NIKKO shall have the right to hold PFD responsible for
any loss incurred by NIKKO. NIKKO agrees to make an appropriate report to
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shareholders in Japan with respect to any purchase orders and redemption orders
received by NIKKO
NIKKO shall make all distributions in Japan when the distribution of
dividend is made by PFD.
All orders are subject to acceptance or rejection by PFD in its sole
discretion, or by the Fund in its sole discretion. PFD agrees to notify NIKKO
of any failure to comply with agreed procedures or delay of orders for
distribution of Shares, The procedure stated herein relating to the pricing and
handling of orders shall be subject to instructions which PFD may forward to
NIKKO from time to time.
6. Preparation of Documents To Be Used in Japan
PFD and NIKKO shall from time to time separately agree to the matters of
the preparation of documents to be used in Japan in accordance with the
applicable laws and regulations.
7. Costs and Expenses
PFD and NIKKO shall from time to time separately agree as to the allocation
of costs and expenses incurred under this Contract.
8. Compliance With Law
NIKKO hereby represents that it with offer and sell the Shares in Japan and
that it is licensed and qualified as a securities company authorized to offer
and sell the Shares under the laws of Japan and the rules of JSDA.
NIKKO agrees that in selling Shares it will comply with all applicable
laws, rules and -regulations, including those of the United States, and the
applicable rules and regulations of any jurisdiction in which NIKKO sells,
directly or indirectly, any Shares. NIKKO agrees not to offer for sale or sell
the Shares in any jurisdiction other than Japan.
9. Relationship with Dealers
In offering and selling Shares under this Contract, NIKKO shall be acting
as principal and nothing herein shall be construed to constitute NIKKO or any of
its agents, employees or representatives as PFD's agent or employee, or as an
agent or employee of the Fund. As general distributor of the Fund, PFD shall
have full authority to take such action as PFD may deem advisable in respect of
all matters pertaining to the distribution of the Shares. PFD shall not be
under any obligation to NIKKO except for obligations expressly assumed by PFD in
this Contract.
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10. Termination
Either party hereto may terminate this Contract, without cause, upon 60
days `written notice to the other party and, either party may terminate this
Contract for cause upon the violation by the other party of any material
provision hereof, such termination to become effective on the date such notice
of termination is mailed to the other party.
Unless sooner terminated, this Contract; will continue in effect until one
year from the date hereof and thereafter for successive annual periods, provided
that such continuance is specifically approved at least annual by votes of a
majority of both (i) the Board. of Trustees of the Trust and (ii) those
Trustees of the Trust who are not "interested person" of the Trust (as defined
in the U.S. Investment Company Act of 1940) and have no direct or indirect
financial interest in the operation of the distribution plan or administrative
services plan (each a "Plan") with respect to the Shares or any agreements
related to either Plan ("Independent Trustees"), cast in person at a meeting
called for the purpose of voting on a Plan and such related agreements.
This Contract may be terminated and/or sales of Shares of the Fund may be
suspended at any time without the payment of any Penalty, by vote Of a majority
of the Independent Trustees or by vote of a majority of the voting securities
(within the meaning of the U.S. Investment Company Act of 1940) of the
Administrative Class shares of the Fund, on 60 days' written notice. Notice of
termination (or non-renewal of a Plan by the Trustees shall constitute a notice
of termination of this Contract with respect to services provided under such
Plan.
11. Distribution and Shareholder Services
NIKKO is hereby authorized and may from time to time undertake to perform
services for its customers in connection with investments in the Shares of the
Fund, which services may include, but are not limited to: (i) providing
facilities to answer questions from prospective investors about the Fund; (ii)
receiving and answering correspondence, including requests for Japanese
Prospectus; (iii) preparing, printing and delivering Japanese Prospectus and
shareholder reports to prospective shareholders; (iv) assisting investors in
applying to purchase Shares and selecting account options; and (v) shareholder
services that may include, but are not limited to, the following functions:
receiving, aggregating and processing shareholder orders; furnishing shareholder
sub-accounting, providing and maintaining elective shareholder services;
providing and maintaining pre-authorized investment plants; periodically with
shareholders; acting as the sole shareholder of record and nominee for
shareholders,- maintaining accounting records for shareholders; answering
questions and handling correspondence from shareholders about their accounts;
performing similar account administrative services; and providing such other as
PFD may reasonably request to the extent NIKKO is permitted to do so under
applicable statutes, rules, or regulations.
NIKKO and its employees will, upon request, be available to consult with PFD or
its designees concerning the performance of NMO's responsibilities under this
Contract Any person authorized to direct the disposition of monies paid or
payable by PFD pursuant to this Contract will provide to PFD and the Trust's
Board of Trustees, and the Trustees will, review at least quarterly, a
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written report of the amounts so expended and. the purposes for which such
expenditures were made.
In addition, NIKKO will furnish to PFD, the Fund and their designees such
information as PFD, the Fund or their designees may reasonably request
(including without limitation, periodic certifications confirming the rendering
of services with respect to Shares described herein), and' will otherwise
cooperate with PFD, the Fund and their designees (including, without limitation,
any auditors designated by the Fund), in the preparation of reports to the
Trusts Board of Trustees concerning this Contract and the monies paid or payable
by PFD pursuant hereto, as well as any other reports or filings that may be
required by law.
In consideration of the costs and expenses of furnishing the services and
facilities provided by NIKKO hereunder, and subject to the limitations of
applicable law and regulations, NIKKO will be paid monthly for such costs,
expenses or payments at an annual rate of 0-25%, of the average daily net assets
of the Fund attributable to the Shares which are owned of record by NIKKO as
nominee for its customers.
Under no circumstances shall PFD or the Trust be liable to NIKKO or any other
person under this Contract as a result of any action by the 11S. Securities and
Exchange Commission or National Association of Securities Dealers, Inc. (the
"NASD") affecting the operation or of a Plan.
The fee rate with respect to the Fund may be prospectively decreased by PFD, in
its sole discretion, at any time upon notice to NIKKO.
12. Indemnification
NIKKO agrees to indemnify and hold harmless PFD, the Trust and the Fund for any
lose, liability, claim, damage. or expense arising out of or resulting from any
failure an the part of NIKKO to comply with any provision or representation in
this Contract, or from any sale of the Shares or use of the Securities
Registration Statement, the Japanese Prospectus, the Japanese Securities Report,
the Japanese Semi-Annual Securities Report, the Japanese Extraordinary Report or
supplementary sales materials except as otherwise provided herein.
PFD agrees to indemnify and hold harmless NIKKO for any loss, liability claim,
damage, or expense arising out of or resulting from any failure on the part of
PFD to comply with any provision or representation in this Contract, or from any
materially misleading information or omission of information in the Securities
Registration Statement, the Japanese Prospectus, the Japanese Securities Report,
the Japanese Semi-Annual Securities Report, the Japanese Extraordinary Report or
supplementary sales materials (except information for which NBRO is responsible,
if any) or other information furnished in written form by or on behalf of PFD or
the Fund.
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13. Assignment
This Contract will automatically terminate in the event of its assignment (as
such term is defined in the U.S. Investment Company Act of 1940).
14. Governing Law
This Contract and the rights and obligations of the parties hereunder shall be
governed by and construed under the laws of Japan.
If the foregoing correctly sets forth our understanding, please indicate your
acceptance thereof in the space provided below for that purpose, whereupon this
letter shall constitute a binding agreement between us.
IN WITNESS WHEREOF, PFD AND NIKKO have caused their duly authorized
representatives to execute this Agreement on the date stated at the beginning
hereof.
PIMCO Funds Distributors LLC
By:__________________________
Name:
Title:
THE NIKKO SECURITIES CO., LTD.
By:__________________________
Name:
Title:
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