EXHIBIT 99.B9(ii)
SHAREHOLDER SERVICING AGREEMENT
This Agreement is made as of __________, 1998 between Pacific Investment
Management Company ("PIMCO") and PIMCO Funds Distributors LLC ("PFD"), a
Delaware limited liability company and a broker-dealer registered under the
Securities Exchange Act of 1934, as amended (the "1934 Act").
RECITALS
WHEREAS, PIMCO Funds: Pacific Investment Management Series (the "Trust")
is a Massachusetts business trust registered as an open-end management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"), and offers shares of beneficial interest in separate series or
funds ("Funds"), each with its own investment objective or objectives and
investment policies;
WHEREAS, the Trust is authorized to issue shares of the Funds in separate
classes of shares, one of which is designated Class D shares;
WHEREAS, certain shareholders of Class D shares may require distribution
and related services that are in addition to services required by other
shareholders, and the provision of such services to shareholders requiring these
services may be useful to such shareholders and facilitate their ability to
invest in the Funds;
WHEREAS, pursuant to the terms of an Amended and Restated Administration
Agreement dated as of __________, 1998 (the "Administration Agreement"), PIMCO
has agreed to serve as the administrator of the Trust and to provide or procure
certain services for the Trust;
WHEREAS, the Administration Agreement provides that PIMCO will provide, or
arrange for the provision of, certain distribution-related and shareholder
services with respect to the Class D shares of the Funds;
WHEREAS, the Administration Agreement includes a defensive distribution
plan for Class D shares (the "Distribution Plan") because certain of those
services may be deemed to be "primarily intended to result in the sale" of Class
D shares (within the meaning of Rule 12b-1 under the 1940 Act);
WHEREAS, PIMCO desires that PFD provide, or arrange for the provision of,
certain distribution-related and/or shareholder services with respect to Class D
shares of the Funds in accordance with the terms and conditions of this
Agreement set forth below.
W I T N E S S E T H:
PIMCO and PFD agree as follows:
1. Appointment. PIMCO hereby authorizes PFD to provide certain
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distribution-related and shareholder services to shareholders of the Funds with
respect to whom PFD has a
servicing relationship, and further authorizes PFD to enter into agreements with
broker-dealers registered under the 1934 Act, banks exempt from registration
under that Act, registered investment advisers and other financial services
firms ("Service Organizations") with respect to the provision of distribution-
related and/or shareholder services to shareholders of the Funds with respect to
which such Service Organizations have a servicing relationship, on the same
general terms as provided herein ("Service Agreements"). The form of any such
agreement shall be subject to the approval of PIMCO. The appointment of PFD or
any Service Organization hereunder is non-exclusive, and PFD recognizes and
agrees that, from time to time, PIMCO may enter into other agreements with
financial intermediaries with respect to the provision of distribution-related,
administrative and/or shareholder services for the Funds.
2. Services to be Performed. For the duration of this Agreement, PFD
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agrees to use its best efforts, subject to applicable legal and contractual
restrictions and in compliance with the procedures described in the
prospectus(es) and statement(s) of additional information of the Funds as from
time to time in effect (collectively, the "Prospectus"), to provide in respect
of investors purchasing Class D shares some or all of the following services and
facilities in connection with direct purchases by shareholders or in connection
with products, programs or accounts offered by such Service Organizations: (i)
facilities for placing orders directly for the purchase of a Fund's shares and
tendering a Fund's Class D shares for redemption; (ii) advertising with respect
to a Fund's Class D shares; (iii) providing information about the Funds; (iv)
providing facilities to answer questions from prospective investors about the
Funds; (v) receiving and answering correspondence, including requests for
Prospectuses; (vi) preparing, printing and delivering Prospectuses and
shareholder reports to prospective shareholders; (vii) assisting investors in
applying to purchase Class D Shares and selecting dividend and other account
options; and (viii) shareholder services provided by a Service Organization 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 such as
check writing and wire transfer services; providing and maintaining pre-
authorized investment plans; communicating periodically with shareholders;
acting as the sole shareholder of record and nominee for shareholders;
maintaining accounting records for shareholders; answering questions and
handling correspondence from shareholders about their accounts; issuing
confirmations for transactions by shareholders; performing similar account
administrative services; providing such shareholder communications and
recordkeeping services as may be required for any program for which the Service
Organization is a sponsor that relies on Rule 3a-4 under the 1940 Act; and
providing such other similar services as PFD may reasonably request to the
extent the Service Organization is permitted to do so under applicable statutes,
rules, or regulations.
The Service Organization will provide such office space and equipment,
telephone facilities, and personnel (which may be any part of the space,
equipment, and facilities currently used in the Service Organization's business,
or any personnel employed by the Service Organization) as may be reasonably
necessary or beneficial in order to provide such support services with respect
to a Fund's Class D shares.
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3. Orders and Settlement. Orders submitted by PFD (including orders
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forwarded by Service Organizations on behalf of clients to PFD in its capacity
as principal underwriter for the Trust) on behalf of investors shall be accepted
or rejected by PFD as set forth in the Distribution Contract pursuant to which
PFD serves as principal underwriter to the Trust.
4. Representations and Warranties: Compliance with Laws. PFD represents
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that it is a broker-dealer registered under the 1934 Act and a member of the
National Association of Securities Dealers, Inc. ("NASD"). PFD agrees to abide
by the Conduct Rules of the NASD. This Agreement is in all respects subject to
Rule 2830 of the Conduct Rules of the NASD, which shall control any provisions
to the contrary.
5. Sales Materials. No person is authorized to make any representations
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concerning Class D shares of the Funds except those contained in the then
current Prospectus and printed information issued by each Fund or by the Trust
as explanatory materials and/or information supplemental to each Prospectus.
PIMCO shall supply or cause to be supplied Prospectuses, reasonable quantities
of supplemental sales literature, explanatory materials and additional
information as issued. PFD agrees not to use other advertising or sales
material relating to the Funds unless approved in writing by PIMCO in advance of
such use. PFD agrees to indemnify the Funds and the Trust for any loss, injury,
damage, expense or liability arising from or based upon any alleged or untrue
statement or representations made by PFD other than statements contained in the
Prospectus or sales literature authorized by the Trust.
6. Compensation. In consideration of PFD's provision of the services as
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described in this Agreement, PIMCO agrees, subject to the limitations of
applicable law and regulations, including rules of the NASD, to pay PFD fees
("Service Fees") at an annual rate of 0.25% of the average of the aggregate net
asset value of outstanding Class D shares serviced by PFD (or by Service
Organizations pursuant to contracts with PFD), measured on each business day
during each month. PFD may, in turn, pay any or all of these fees to Service
Organizations with whom it has entered into service agreements, with no recourse
to or liability on the part of PIMCO. The applicable portion of the Service
Fees will be paid by PIMCO within 20 days following the end of each month. The
parties acknowledge and agree that the Service Fees will be paid by PIMCO in
respect of each Fund and shall be paid in respect of each Fund only so long as
the Administration Agreement is in effect with respect to that Fund's Class D
shares.
The fee rate with respect to any Fund may be prospectively increased or
decreased by PIMCO, in its sole discretion, at any time upon notice to PFD.
In addition, PFD will furnish to PIMCO, the Trust or their designees such
information as PIMCO, the Trust or their designees may reasonably request
(including, without limitation, periodic certifications confirming the rendering
of support services with respect to Class D shares as described herein), and
will otherwise cooperate with PIMCO, the Trust and their designees (including,
without limitation, any auditors designated by the Trust), in the preparation of
reports to the Trust's Board of Trustees concerning this Agreement and the
monies paid or payable by PIMCO pursuant hereto, as well as any other reports or
filings that may be required by law.
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7. Term and Termination.
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(a) This Agreement is entered into by PIMCO in accordance with the
terms of the Class D Distribution Plan, which the Trust has adopted pursuant to
Rule 12b-1 under the 1940 Act, that forms a part of the Administration
Agreement. Accordingly, unless sooner terminated, this Agreement 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
annually 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 persons" (as
defined in the 0000 Xxx) and have no direct or indirect financial interest in
the operation of the Distribution Plan or any agreements related to it
("Independent Trustees"), cast in person at a meeting called for the purpose of
voting on the Distribution Plan and such related agreements.
(b) This Agreement may be terminated, with respect to a Fund, at any
time without the payment of any penalty, by vote of a majority of the Class D
shares (within the meaning of the 0000 Xxx) of a Fund, on 30 days' written
notice. Notice of termination (or non-renewal) of the Distribution Plan by the
Trustees shall constitute a notice of termination of this Agreement.
(c) This Agreement shall terminate automatically in the event of its
assignment, as defined in the 1940 Act, or upon termination of the Distribution
Plan.
8. Governing Law. This Agreement shall be construed and the provisions
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thereof interpreted under and in accordance with the laws of the State of
California applicable to agreements fully executed and to be performed therein,
without regard to its conflicts of law rules.
9. Exculpation: Indemnification
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(a) PIMCO shall not be liable to PFD and the PFD shall not be liable
to PIMCO except for acts or failures to act which constitute lack of good faith
or gross negligence and for obligations expressly assumed by either party
hereunder. Nothing contained in this Agreement is intended to operate as a
waiver by PIMCO or by PFD of compliance with any applicable federal or state
law, rule, or regulation and the rules and regulations promulgated by the NASD.
(b) PFD will indemnify PIMCO and hold it harmless from any claims or
assertions relating to the lawfulness of the PFD's participation in this
Agreement and the transactions contemplated hereby or relating to any activities
of any persons serving as officers or employees of PFD and performed in
connection with the discharge of its responsibilities under this Agreement. If
any such claims are asserted, PIMCO shall have the right to manage its own
defense, including the selection and engagement of legal counsel of its
choosing, and all costs of such defense shall be borne by PFD.
10. Notices. Each notice required by this Agreement shall be given in
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writing and delivered personally or mailed by certified mail or courier service
or sent by facsimile to the
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party's address identified on the signature page to this Agreement or such other
address as each party may by written notice provide to the other. A notice
given pursuant to this section shall be deemed to have been given immediately
when delivered personally or by facsimile, three (3) days after the date of
certified mailing, and one (1) day after delivery by overnight courier service.
11. Complete Agreement. This Agreement contains the full and complete
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understanding of the parties and supersedes all prior representations, promises,
statements, arrangements, agreements, warranties and understandings between the
parties with respect to the subject matter hereof, whether oral or written,
express or implied.
12. Amendment. This Agreement may be modified or amended, and the terms of
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this Agreement may be waived, only by a writing signed by each of the parties.
13. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement by their
duly authorized officers as of the date and year first written above.
PACIFIC INVESTMENT MANAGEMENT COMPANY
By:_______________________________ Address for Notices:
Name:_____________________________ 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Title:____________________________ Xxxxxxx Xxxxx, XX 00000
Fax: (714) __________
PIMCO FUNDS DISTRIBUTORS LLC
By:_______________________________ Address for Notices:
Name:_____________________________ 0000 Xxxxxxxx Xxxxxx
Xxxxx:____________________________ Xxxxxxxx, XX 00000
Fax: (000) 000-0000
46787183.doc
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