Exhibit 99.B5(a)
Management Contracts
3007757.02
MANAGEMENT CONTRACT
[Equity Income Fund]
Management Contract executed as of November 16, 1994 between THOMSON
FUND GROUP, a Massachusetts business trust (the "Trust") on behalf of its
Thomson Equity Income Fund (the "Fund"), and PIMCO ADVISORS L.P., a Delaware
limited partnership (the "Manager").
WITNESSETH:
That in consideration of the mutual covenants herein contained, it is
agreed as follows:
1. SERVICES TO BE RENDERED BY MANAGER TO FUND.
(a) Subject always to the control of the Trustees of the Trust and to
such policies as the Trustees may determine, the Manager will, at its expense,
(i) furnish continuously an investment program for the Fund and will make
investment decisions on behalf of the Fund and place all orders for the purchase
and sale of portfolio securities and (ii) furnish office space and equipment,
provide bookkeeping and clerical services (excluding determination of net asset
value and shareholder accounting services) and pay all salaries, fees and
expenses of officers and Trustees of the Trust who are affiliated with the
Manager. In the performance of its duties, the Manager will comply with the
provisions of the Amended and Restated Agreement and Declaration of Trust and
By-laws of the Trust and its stated investment objectives, policies and
restrictions.
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(b) In the selection of brokers or dealers and the placing of orders
for the purchase and sale of portfolio investments for the Fund, the Manager
shall seek to obtain for the Fund the most favorable price and execution
available, except to the extent it may be permitted to pay higher brokerage
commissions for brokerage and research services as described below. In using its
best efforts to obtain for the Fund the most favorable price and execution
available, the Manager, bearing in mind the Fund's best interests at all times,
shall consider all factors it deems relevant, including by way of illustration,
price, the size of the transaction, the nature of the market for the security,
the amount of the commission, the timing of the transaction taking into account
market prices and trends, the reputation, experience and financial stability of
the broker or dealer involved and the quality of service rendered by the broker
or dealer in other transactions. Subject to such policies as the Trustees may
determine, the Manager shall not be deemed to have acted unlawfully or to have
breached any duty created by this Contract or otherwise solely by reason of its
having caused the Fund to pay a broker or dealer that provides brokerage and
research services to the Manager an amount of commission for effecting a
portfolio investment transaction in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction, if the
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
Manager's overall responsibilities with respect to the Trust and to other
clients of the Manager as to which the Manager exercises investment discretion.
The Trust hereby agrees with the Manager and with any Sub-Adviser selected by
the Manager as provided in Section 1(c) hereof that any entity or person
associated with the Manager which is a member of a national securities exchange
is authorized to effect any transaction on such exchange for the account of the
Trust and the Fund which is permitted by Section 11(a) of the Securities
Exchange Act of 1934 and Rule 11a2-2(T) thereunder, and the Trust hereby
consents to the retention of compensation for such transactions in accordance
with Rule 11a2-2(T)(2)(iv).
(c) Subject to the provisions of the Agreement and Declaration of Trust
of the Trust and the Investment Company Act of 1940 (the "1940 Act"), the
Manager, at its expense, may select and contract with investment advisers (the
"Sub-Advisers") for the Fund. So long as Columbus Circle Investors serves as
Sub-Adviser to the Fund pursuant to a Sub-Adviser Agreement in substantially the
form attached hereto as Exhibit A (the "Sub-Adviser Agreement"), the obligation
of the Manager under this Contract with respect to the Fund shall be subject in
any event to the control of the Trustees of the Trust, to determine and review
with Columbus Circle Investors investment policies of the Fund and Columbus
Circle Investors shall have the obligation of furnishing continuously an
investment program and making investment decisions for the Fund, adhering to
applicable investment objectives, policies and restrictions and placing all
orders for the purchase and sale of portfolio securities for the Fund. The
Manager will compensate any Sub-Adviser of the Fund for its services to the
Fund. The Manager may terminate the services of the Sub-Adviser at any time in
its sole discretion, and shall at such time assume the responsibilities of such
Sub-Adviser unless and until a successor Sub-Adviser is selected.
(d) The Manager shall not be obligated to pay any expenses of or for
the Trust not expressly assumed by the Manager pursuant to this Section 1 other
than as provided in Section 3.
2. OTHER AGREEMENTS, ETC.
It is understood that any of the shareholders, Trustees, officers and
employees of the Trust may be a shareholder, director, officer or employee of,
or be otherwise interested in, the Manager, and in any person controlled by or
under common control with the Manager, and that the Manager and any person
controlled by or under common control with the Manager may have an interest in
the Trust. It is also understood that the Manager and persons controlled by or
under common control with the Manager have and may have advisory, management
service, distribution or other contracts with other organizations and persons,
and may have other interests and businesses.
3. COMPENSATION TO BE PAID BY THE TRUST TO THE MANAGER.
The Trust will pay to the Manager as compensation for the Manager's
services rendered, for the facilities furnished and for the expenses borne by
the Manager pursuant to Section 1, a fee, computed and paid monthly at the
annual rate of 0.75% of the average daily net asset value of the Fund up to $200
million and 0.70% of such net asset value in excess of $200 million. The average
daily net asset value of the Fund shall be determined by taking an average of
all of the determinations of such net asset value during such month at the close
of business on each business day during such month while this Contract is in
effect. Such fee shall be payable for each month within five (5) business days
after the end of such month.
In the event that expenses of the Fund for any fiscal year should
exceed the expense limitation on investment company expenses imposed by any
statute or regulatory authority of any jurisdiction in which shares of the Trust
are qualified for offer and sale, the compensation due the Manager for such
fiscal year shall be reduced by the amount of such excess by a reduction or
refund thereof. In the event that the expenses with respect to the Fund could
exceed any expense limitation which the Manager may, by written notice to the
Trust, voluntarily declare to be effective subject to such terms and conditions
as the Manager may prescribe in such notice, the compensation due the Manager
shall be reduced, and, if necessary, the Manager shall bear expenses with
respect to the Fund, to the extent required by such expense limitation.
If the Manager shall serve for less than the whole of a month, the
foregoing compensation shall be prorated.
4. ASSIGNMENT TERMINATES THIS CONTRACT; AMENDMENTS OF THIS CONTRACT.
This Contract shall automatically terminate, without the payment of any
penalty, in the event of its assignment; and this Contract shall not be amended
as to the Fund unless such amendment is approved at a meeting by the affirmative
vote of a majority of the outstanding shares of the Fund, and by the vote, cast
in person at a meeting called for the purpose of voting on such approval, of a
majority of the Trustees of the Trust who are not interested persons of the
Trust or of the Manager or of any Sub-Adviser of the Fund.
5. EFFECTIVE PERIOD AND TERMINATION OF THIS CONTRACT.
This Contract shall become effective upon its execution, and shall
remain in full force and effect as to each Fund continuously thereafter (unless
terminated automatically as set forth in Section 4) until terminated as follows:
(a) Either party hereto may at any time terminate this
Contract by not more than sixty days' written notice delivered or
mailed by registered mail, postage prepaid, to the other party, or
(b) If (i) the Trustees of the Trust or the shareholders by
the affirmative vote of a majority of the outstanding shares of the
Fund, and (ii) a majority of the Trustees of the Trust who are not
interested persons of the Trust or of the Manager, by vote cast in
person at a meeting called for the purpose of voting on such approval,
do not specifically approve at least annually the continuance of this
Contract, then this Contract shall automatically terminate at the close
of business on the second anniversary of its execution, or upon the
expiration of one year from the effective date of the last such
continuance, whichever is later; provided, however, that if the
continuance of this Contract is submitted to the shareholders of the
Fund for their approval and such shareholders fail to approve such
continuance of this Contract as provided herein, the Manager may
continue to serve hereunder in a manner consistent with the Investment
Company Act of 1940 and the Rules and Regulations thereunder.
Action by the Trust under (a) above may be taken either (i) by vote of
a majority of its Trustees, or (ii) by the affirmative vote of a majority of the
outstanding shares of the Fund.
Termination of this Contract pursuant to this Section 5 shall be
without the payment of any penalty.
6. CERTAIN DEFINITIONS.
For the purposes of this Contract, the "affirmative vote of a majority
of the outstanding shares" means the affirmative vote, at a duly called and held
meeting of shareholders, (a) of the holders of 67% or more of the shares of the
Fund present (in person or by proxy) and entitled to vote at such meeting, if
the holders of more than 50% of the outstanding shares of the Fund entitled to
vote at such meeting are present in person or by proxy, or (b) of the holders of
more than 50% of the outstanding shares of the Fund entitled to vote at such
meeting, whichever is less.
For the purposes of this Contract, the terms "affiliated person",
"control", "interested person" and "assignment" shall have their respective
meanings defined in the Investment Company Act of 1940 and the Rules and
Regulations thereunder, subject, however, to such exemptions as may be granted
by the Securities and Exchange Commission under said Act; the term "specifically
approve at least annually" shall be construed in a manner consistent with the
Investment Company Act of 1940 and the Rules and Regulations thereunder; and the
term "brokerage and research services" shall have the meaning given in the
Securities Exchange Act of 1934 and the Rules and Regulations thereunder.
7. NONLIABILITY OF MANAGER.
In the absence of willful misfeasance, bad faith or gross negligence on
the part of the Manager, or reckless disregard of its obligations and duties
hereunder, the Manager shall not be subject to any liability to the Trust, or to
any shareholder of the Trust, for any act or omission in the course of, or
connected with, rendering services hereunder.
8. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS.
A copy of the Amended and Restated Agreement and Declaration of Trust
of the Trust is on file with the Secretary of The Commonwealth of Massachusetts,
and notice is hereby given that this instrument is executed on behalf of the
Trustees of the Trust as Trustees and not individually and that the obligations
of this instrument are not binding upon any of the Trustees or shareholders
individually but are binding only upon the assets and property of the Fund.
9. THE WORDS "CCI," "PACIFIC INVESTMENT MANAGEMENT COMPANY," "PFAMCO," "PIMCO"
OR "THOMSON".
The Manager owns the words "CCI," "Pacific Investment Management
Company," "PFAMCo," "PIMCO" and "Thomson" which may be used by the Trust only
with the consent of the Manager. The Manager consents to the use of the Trust of
the words "CCI," "Pacific Investment Management Company," "PFAMCo," "PIMCO" and
"Thomson," in such forms as the Manager shall in writing approve, but only on
condition and so long as (i) this Contract shall remain in full force and (ii)
the Trust shall fully perform, fulfill and comply with all provisions of this
Contract expressed herein to be performed, fulfilled or complied with by it. No
such name shall be used by the Trust at any time or in any place or for any
purposes or under any conditions except as in this section provided. The
foregoing authorization by the Manager to the Trust to use said name as part of
a business or name is not exclusive of the right of the Manager itself to use,
or to authorize others to use, the same; the Trust acknowledges and agrees that
as between the Manager and the Trust, the Manager has the exclusive right to so
authorize others to use the same; the Trust acknowledges and agrees that as
between the Manager and the Trust, the Manager has the exclusive right to so
use, or authorize others to use, said words and the Trust agrees to take such
action as may reasonably be requested by the Manager to give full effect to the
provisions of this section (including, without limitation, consenting to such
use of said words). Without limiting the generality of the foregoing, the Trust
agrees that, upon any termination of this Contract by either party or upon the
violation of any of its provisions by the Trust, the Trust will, at the request
of the Manager made within six months after the Manager has knowledge of such
termination or violation, use its best efforts to change the name of the Trust
so as to eliminate all reference, if any, to the words "CCI," "Pacific
Investment Management Company," "PFAMCo," "PIMCO" and "Thomson" and will not
thereafter transact any business in a name containing the words "CCI," "Pacific
Investment Management Company," "PFAMCo," "PIMCO" or "Thomson" in any form or
combination whatsoever, or designate itself as the same entity as or successor
to an entity of such name, or otherwise use the words "CCI," "Pacific Investment
Management Company," "PFAMCo," "PIMCO" or "Thomson" or any other reference to
the Manager. Such covenants on the part of the Trust shall be binding upon it,
its trustees, officers, stockholders, creditors and all other persons claiming
under or through it.
IN WITNESS WHEREOF, THOMSON FUND GROUP and PIMCO ADVISORS L.P. have
each caused this instrument to be signed in duplicate in its behalf by its duly
authorized representative, all as of the day and year first above written.
THOMSON FUND GROUP
By: Xxxxxx X. Xxxxxxxxxxx
PIMCO ADVISORS L.P.
By: PIMCO Partners, G.P., a California
general partnership, General Partner
By: PIMCO Partners, LLC, a California
limited liability company, General Partner
By: Xxxxxxx X. Xxxxxxxx
3033747.01
MANAGEMENT CONTRACT
[Value Fund]
Management Contract executed as of May 11, 1995 between PIMCO ADVISORS
FUNDS, a Massachusetts business trust (the "Trust") on behalf of its Value Fund
(the "Fund"), and PIMCO ADVISORS L.P., a Delaware limited partnership (the
"Manager").
WITNESSETH:
That in consideration of the mutual covenants herein contained, it is
agreed as follows:
1. SERVICES TO BE RENDERED BY MANAGER TO FUND.
(a) Subject always to the control of the Trustees of the Trust and to
such policies as the Trustees may determine, the Manager will, at its expense,
(i) furnish continuously an investment program for the Fund and will make
investment decisions on behalf of the Fund and place all orders for the purchase
and sale of portfolio securities and (ii) furnish office space and equipment,
provide bookkeeping and clerical services (excluding determination of net asset
value and shareholder accounting services) and pay all salaries, fees and
expenses of officers and Trustees of the Trust who are affiliated with the
Manager. In the performance of its duties, the Manager will comply with the
provisions of the Amended and Restated Agreement and Declaration of Trust and
By-laws of the Trust and its stated investment objectives, policies and
restrictions.
3033747.01
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(b) In the selection of brokers or dealers and the placing of orders
for the purchase and sale of portfolio investments for the Fund, the Manager
shall seek to obtain for the Fund the most favorable price and execution
available, except to the extent it may be permitted to pay higher brokerage
commissions for brokerage and research services as described below. In using its
best efforts to obtain for the Fund the most favorable price and execution
available, the Manager, bearing in mind the Fund's best interests at all times,
shall consider all factors it deems relevant, including by way of illustration,
price, the size of the transaction, the nature of the market for the security,
the amount of the commission, the timing of the transaction taking into account
market prices and trends, the reputation, experience and financial stability of
the broker or dealer involved and the quality of service rendered by the broker
or dealer in other transactions. Subject to such policies as the Trustees may
determine, the Manager shall not be deemed to have acted unlawfully or to have
breached any duty created by this Contract or otherwise solely by reason of its
having caused the Fund to pay a broker or dealer that provides brokerage and
research services to the Manager an amount of commission for effecting a
portfolio investment transaction in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction, if the
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
Manager's overall responsibilities with respect to the Trust and to other
clients of the Manager as to which the Manager exercises investment discretion.
The Trust hereby agrees with the Manager and with any Sub-Adviser selected by
the Manager as provided in Section 1(c) hereof that any entity or person
associated with the Manager which is a member of a national securities exchange
is authorized to effect any transaction on such exchange for the account of the
Trust and the Fund which is permitted by Section 11(a) of the Securities
Exchange Act of 1934 and Rule 11a2-2(T) thereunder, and the Trust hereby
consents to the retention of compensation for such transactions in accordance
with Rule 11a2-2(T)(2)(iv).
(c) Subject to the provisions of the Agreement and Declaration of Trust
of the Trust and the Investment Company Act of 1940 (the "1940 Act"), the
Manager, at its expense, may select and contract with investment advisers (the
"Sub-Advisers") for the Fund. So long as NFJ Investment Group serves as
Sub-Adviser to the Fund pursuant to a Sub-Adviser Agreement in substantially the
form attached hereto as Exhibit A (the "Sub-Adviser Agreement"), the obligation
of the Manager under this Contract with respect to the Fund shall be subject in
any event to the control of the Trustees of the Trust, to determine and review
with NFJ Investment Group investment policies of the Fund and NFJ Investment
Group shall have the obligation of furnishing continuously an investment program
and making investment decisions for the Fund, adhering to applicable investment
objectives, policies and restrictions and placing all orders for the purchase
and sale of portfolio securities for the Fund. The Manager will compensate any
Sub-Adviser of the Fund for its services to the Fund. The Manager may terminate
the services of the Sub-Adviser at any time in its sole discretion, and shall at
such time assume the responsibilities of such Sub-Adviser unless and until a
successor Sub-Adviser is selected.
(d) The Manager shall not be obligated to pay any expenses of or for
the Trust not expressly assumed by the Manager pursuant to this Section 1 other
than as provided in Section 3.
2. OTHER AGREEMENTS, ETC.
It is understood that any of the shareholders, Trustees, officers and
employees of the Trust may be a shareholder, director, officer or employee of,
or be otherwise interested in, the Manager, and in any person controlled by or
under common control with the Manager, and that the Manager and any person
controlled by or under common control with the Manager may have an interest in
the Trust. It is also understood that the Manager and persons controlled by or
under common control with the Manager have and may have advisory, management
service, distribution or other contracts with other organizations and persons,
and may have other interests and businesses.
3. COMPENSATION TO BE PAID BY THE TRUST TO THE MANAGER.
The Trust will pay to the Manager as compensation for the Manager's
services rendered, for the facilities furnished and for the expenses borne by
the Manager pursuant to Section 1, a fee, computed and paid monthly at the
annual rate of 0.70% of the average daily net asset value of the Fund. The
average daily net asset value of the Fund shall be determined by taking an
average of all of the determinations of such net asset value during such month
at the close of business on each business day during such month while this
Contract is in effect. Such fee shall be payable for each month within five (5)
business days after the end of such month.
In the event that expenses of the Fund for any fiscal year should
exceed the expense limitation on investment company expenses imposed by any
statute or regulatory authority of any jurisdiction in which shares of the Trust
are qualified for offer and sale, the compensation due the Manager for such
fiscal year shall be reduced by the amount of such excess by a reduction or
refund thereof. In the event that the expenses with respect to the Fund could
exceed any expense limitation which the Manager may, by written notice to the
Trust, voluntarily declare to be effective subject to such terms and conditions
as the Manager may prescribe in such notice, the compensation due the Manager
shall be reduced, and, if necessary, the Manager shall bear expenses with
respect to the Fund, to the extent required by such expense limitation.
If the Manager shall serve for less than the whole of a month, the
foregoing compensation shall be prorated.
4. ASSIGNMENT TERMINATES THIS CONTRACT; AMENDMENTS OF THIS CONTRACT.
This Contract shall automatically terminate, without the payment of any
penalty, in the event of its assignment; and this Contract shall not be amended
as to the Fund unless such amendment is approved at a meeting by the affirmative
vote of a majority of the outstanding shares of the Fund, and by the vote, cast
in person at a meeting called for the purpose of voting on such approval, of a
majority of the Trustees of the Trust who are not interested persons of the
Trust or of the Manager or of any Sub-Adviser of the Fund.
5. EFFECTIVE PERIOD AND TERMINATION OF THIS CONTRACT.
This Contract shall become effective upon its execution, and shall
remain in full force and effect as to each Fund continuously thereafter (unless
terminated automatically as set forth in Section 4) until terminated as follows:
(a) Either party hereto may at any time terminate this
Contract by not more than sixty days' written notice delivered or
mailed by registered mail, postage prepaid, to the other party, or
(b) If (i) the Trustees of the Trust or the shareholders by
the affirmative vote of a majority of the outstanding shares of the
Fund, and (ii) a majority of the Trustees of the Trust who are not
interested persons of the Trust or of the Manager, by vote cast in
person at a meeting called for the purpose of voting on such approval,
do not specifically approve at least annually the continuance of this
Contract, then this Contract shall automatically terminate at the close
of business on the second anniversary of its execution, or upon the
expiration of one year from the effective date of the last such
continuance, whichever is later; provided, however, that if the
continuance of this Contract is submitted to the shareholders of the
Fund for their approval and such shareholders fail to approve such
continuance of this Contract as provided herein, the Manager may
continue to serve hereunder in a manner consistent with the Investment
Company Act of 1940 and the Rules and Regulations thereunder.
Action by the Trust under (a) above may be taken either (i) by vote of
a majority of its Trustees, or (ii) by the affirmative vote of a majority of the
outstanding shares of the Fund.
Termination of this Contract pursuant to this Section 5 shall be
without the payment of any penalty.
6. CERTAIN DEFINITIONS.
For the purposes of this Contract, the "affirmative vote of a majority
of the outstanding shares" means the affirmative vote, at a duly called and held
meeting of shareholders, (a) of the holders of 67% or more of the shares of the
Fund present (in person or by proxy) and entitled to vote at such meeting, if
the holders of more than 50% of the outstanding shares of the Fund entitled to
vote at such meeting are present in person or by proxy, or (b) of the holders of
more than 50% of the outstanding shares of the Fund entitled to vote at such
meeting, whichever is less.
For the purposes of this Contract, the terms "affiliated person",
"control", "interested person" and "assignment" shall have their respective
meanings defined in the Investment Company Act of 1940 and the Rules and
Regulations thereunder, subject, however, to such exemptions as may be granted
by the Securities and Exchange Commission under said Act; the term "specifically
approve at least annually" shall be construed in a manner consistent with the
Investment Company Act of 1940 and the Rules and Regulations thereunder; and the
term "brokerage and research services" shall have the meaning given in the
Securities Exchange Act of 1934 and the Rules and Regulations thereunder.
7. NONLIABILITY OF MANAGER.
In the absence of willful misfeasance, bad faith or gross negligence on
the part of the Manager, or reckless disregard of its obligations and duties
hereunder, the Manager shall not be subject to any liability to the Trust, or to
any shareholder of the Trust, for any act or omission in the course of, or
connected with, rendering services hereunder.
8. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS.
A copy of the Amended and Restated Agreement and Declaration of Trust
of the Trust is on file with the Secretary of The Commonwealth of Massachusetts,
and notice is hereby given that this instrument is executed on behalf of the
Trustees of the Trust as Trustees and not individually and that the obligations
of this instrument are not binding upon any of the Trustees or shareholders
individually but are binding only upon the assets and property of the Fund.
9. THE WORDS "CCI," "PACIFIC INVESTMENT MANAGEMENT COMPANY," "PFAMCO," "PIMCO,"
"NFJ," "CADENCE" OR "THOMSON".
The Manager owns the words "CCI," "Pacific Investment Management
Company," "PFAMCo," "PIMCO," "PIMCO Advisors," "NFJ," "Cadence" and "Thomson"
which may be used by the Trust only with the consent of the Manager. The Manager
consents to the use of the Trust of the words "CCI," "Pacific Investment
Management Company," "PFAMCo, "PIMCO," "NFJ," "Cadence" and "Thomson," in such
forms as the Manager shall in writing approve, but only on condition and so long
as (i) this Contract shall remain in full force and (ii) the Trust shall fully
perform, fulfill and comply with all provisions of this Contract expressed
herein to be performed, fulfilled or complied with by it. No such name shall be
used by the Trust at any time or in any place or for any purposes or under any
conditions except as in this section provided. The foregoing authorization by
the Manager to the Trust to use said name as part of a business or name is not
exclusive of the right of the Manager itself to use, or to authorize others to
use, the same; the Trust acknowledges and agrees that as between the Manager and
the Trust, the Manager has the exclusive right to so authorize others to use the
same; the Trust acknowledges and agrees that as between the Manager and the
Trust, the Manager has the exclusive right to so use, or authorize others to
use, said words and the Trust agrees to take such action as may reasonably be
requested by the Manager to give full effect to the provisions of this section
(including, without limitation, consenting to such use of said words). Without
limiting the generality of the foregoing, the Trust agrees that, upon any
termination of this Contract by either party or upon the violation of any of its
provisions by the Trust, the Trust will, at the request of the Manager made
within six months after the Manager has knowledge of such termination or
violation, use its best efforts to change the name of the Trust so as to
eliminate all reference, if any, to the words "CCI," "Pacific Investment
Management Company, " "PFAMCo," "PIMCO," "PIMCO Advisors," "NFJ," "Cadence" and
"Thomson" and will not thereafter transact any business in a name containing the
words "CCI," "Pacific Investment Management Company," "PFAMCo," "PIMCO," "NFJ,"
"Cadence" or "Thomson" in any form or combination whatsoever, or designate
itself as the same entity as or successor to an entity of such name, or
otherwise use the words "CCI," "Pacific Investment Management Company,"
"PFAMCo," "PIMCO," "PIMCO Advisors," "NFJ," "Cadence" or "Thomson" or any other
reference to the Manager. Such covenants on the part of the Trust shall be
binding upon it, its trustees, officers, stockholders, creditors and all other
persons claiming under or through it.
IN WITNESS WHEREOF, PIMCO ADVISORS FUNDS and PIMCO ADVISORS L.P. have
each caused this instrument to be signed in duplicate in its behalf by its duly
authorized representative, all as of the day and year first above written.
PIMCO ADVISORS FUNDS
By: Xxxxxx X. Xxxxxxxxxxx
Title: President
PIMCO ADVISORS L.P.
By: Xxxxxx X. Xxxxxxxxxxx
Title: Executive Vice President
3007740.01
MANAGEMENT CONTRACT
[Growth Fund]
Management Contract executed as of November 16, 1994 between THOMSON
FUND GROUP, a Massachusetts business trust (the "Trust") on behalf of its
Thomson Growth Fund (the "Fund"), and PIMCO ADVISORS L.P., a Delaware limited
partnership (the "Manager").
WITNESSETH:
That in consideration of the mutual covenants herein contained, it is
agreed as follows:
1. SERVICES TO BE RENDERED BY MANAGER TO FUND.
(a) Subject always to the control of the Trustees of the Trust and to
such policies as the Trustees may determine, the Manager will, at its expense,
(i) furnish continuously an investment program for the Fund and will make
investment decisions on behalf of the Fund and place all orders for the purchase
and sale of portfolio securities and (ii) furnish office space and equipment,
provide bookkeeping and clerical services (excluding determination of net asset
value and shareholder accounting services) and pay all salaries, fees and
expenses of officers and Trustees of the Trust who are affiliated with the
Manager. In the performance of its duties, the Manager will comply with the
provisions of the Amended and Restated Agreement and Declaration of Trust and
By-laws of the Trust and its stated investment objectives, policies and
restrictions.
-7-
(b) In the selection of brokers or dealers and the placing of orders
for the purchase and sale of portfolio investments for the Fund, the Manager
shall seek to obtain for the Fund the most favorable price and execution
available, except to the extent it may be permitted to pay higher brokerage
commissions for brokerage and research services as described below. In using its
best efforts to obtain for the Fund the most favorable price and execution
available, the Manager, bearing in mind the Fund's best interests at all times,
shall consider all factors it deems relevant, including by way of illustration,
price, the size of the transaction, the nature of the market for the security,
the amount of the commission, the timing of the transaction taking into account
market prices and trends, the reputation, experience and financial stability of
the broker or dealer involved and the quality of service rendered by the broker
or dealer in other transactions. Subject to such policies as the Trustees may
determine, the Manager shall not be deemed to have acted unlawfully or to have
breached any duty created by this Contract or otherwise solely by reason of its
having caused the Fund to pay a broker or dealer that provides brokerage and
research services to the Manager an amount of commission for effecting a
portfolio investment transaction in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction, if the
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
Manager's overall responsibilities with respect to the Trust and to other
clients of the Manager as to which the Manager exercises investment discretion.
The Trust hereby agrees with the Manager and with any Sub-Adviser selected by
the Manager as provided in Section 1(c) hereof that any entity or person
associated with the Manager which is a member of a national securities exchange
is authorized to effect any transaction on such exchange for the account of the
Trust and the Fund which is permitted by Section 11(a) of the Securities
Exchange Act of 1934 and Rule 11a2-2(T) thereunder, and the Trust hereby
consents to the retention of compensation for such transactions in accordance
with Rule 11a2-2(T)(2)(iv).
(c) Subject to the provisions of the Agreement and Declaration of Trust
of the Trust and the Investment Company Act of 1940 (the "1940 Act"), the
Manager, at its expense, may select and contract with investment advisers (the
"Sub-Advisers") for the Fund. So long as Columbus Circle Investors serves as
Sub-Adviser to the Fund pursuant to a Sub-Adviser Agreement in substantially the
form attached hereto as Exhibit A (the "Sub-Adviser Agreement"), the obligation
of the Manager under this Contract with respect to the Fund shall be subject in
any event to the control of the Trustees of the Trust, to determine and review
with Columbus Circle Investors investment policies of the Fund and Columbus
Circle Investors shall have the obligation of furnishing continuously an
investment program and making investment decisions for the Fund, adhering to
applicable investment objectives, policies and restrictions and placing all
orders for the purchase and sale of portfolio securities for the Fund. The
Manager will compensate any Sub-Adviser of the Fund for its services to the
Fund. The Manager may terminate the services of the Sub-Adviser at any time in
its sole discretion, and shall at such time assume the responsibilities of such
Sub-Adviser unless and until a successor Sub-Adviser is selected.
(d) The Manager shall not be obligated to pay any expenses of or for
the Trust not expressly assumed by the Manager pursuant to this Section 1 other
than as provided in Section 3.
2. OTHER AGREEMENTS, ETC.
It is understood that any of the shareholders, Trustees, officers and
employees of the Trust may be a shareholder, director, officer or employee of,
or be otherwise interested in, the Manager, and in any person controlled by or
under common control with the Manager, and that the Manager and any person
controlled by or under common control with the Manager may have an interest in
the Trust. It is also understood that the Manager and persons controlled by or
under common control with the Manager have and may have advisory, management
service, distribution or other contracts with other organizations and persons,
and may have other interests and businesses.
3. COMPENSATION TO BE PAID BY THE TRUST TO THE MANAGER.
The Trust will pay to the Manager as compensation for the Manager's
services rendered, for the facilities furnished and for the expenses borne by
the Manager pursuant to Section 1, a fee, computed and paid monthly at the
annual rate of 0.70% of the average daily net asset value of the Fund up to $200
million and 0.65% of such net asset value in excess of $200 million. The average
daily net asset value of the Fund shall be determined by taking an average of
all of the determinations of such net asset value during such month at the close
of business on each business day during such month while this Contract is in
effect. Such fee shall be payable for each month within five (5) business days
after the end of such month.
In the event that expenses of the Fund for any fiscal year should
exceed the expense limitation on investment company expenses imposed by any
statute or regulatory authority of any jurisdiction in which shares of the Trust
are qualified for offer and sale, the compensation due the Manager for such
fiscal year shall be reduced by the amount of such excess by a reduction or
refund thereof. In the event that the expenses with respect to the Fund could
exceed any expense limitation which the Manager may, by written notice to the
Trust, voluntarily declare to be effective subject to such terms and conditions
as the Manager may prescribe in such notice, the compensation due the Manager
shall be reduced, and, if necessary, the Manager shall bear expenses with
respect to the Fund, to the extent required by such expense limitation.
If the Manager shall serve for less than the whole of a month, the
foregoing compensation shall be prorated.
4. ASSIGNMENT TERMINATES THIS CONTRACT; AMENDMENTS OF THIS CONTRACT.
This Contract shall automatically terminate, without the payment of any
penalty, in the event of its assignment; and this Contract shall not be amended
as to the Fund unless such amendment is approved at a meeting by the affirmative
vote of a majority of the outstanding shares of the Fund, and by the vote, cast
in person at a meeting called for the purpose of voting on such approval, of a
majority of the Trustees of the Trust who are not interested persons of the
Trust or of the Manager or of any Sub-Adviser of the Fund.
5. EFFECTIVE PERIOD AND TERMINATION OF THIS CONTRACT.
This Contract shall become effective upon its execution, and shall
remain in full force and effect as to each Fund continuously thereafter (unless
terminated automatically as set forth in Section 4) until terminated as follows:
(a) Either party hereto may at any time terminate this
Contract by not more than sixty days' written notice delivered or
mailed by registered mail, postage prepaid, to the other party, or
(b) If (i) the Trustees of the Trust or the shareholders by
the affirmative vote of a majority of the outstanding shares of the
Fund, and (ii) a majority of the Trustees of the Trust who are not
interested persons of the Trust or of the Manager, by vote cast in
person at a meeting called for the purpose of voting on such approval,
do not specifically approve at least annually the continuance of this
Contract, then this Contract shall automatically terminate at the close
of business on the second anniversary of its execution, or upon the
expiration of one year from the effective date of the last such
continuance, whichever is later; provided, however, that if the
continuance of this Contract is submitted to the shareholders of the
Fund for their approval and such shareholders fail to approve such
continuance of this Contract as provided herein, the Manager may
continue to serve hereunder in a manner consistent with the Investment
Company Act of 1940 and the Rules and Regulations thereunder.
Action by the Trust under (a) above may be taken either (i) by vote of
a majority of its Trustees, or (ii) by the affirmative vote of a majority of the
outstanding shares of the Fund.
Termination of this Contract pursuant to this Section 5 shall be
without the payment of any penalty.
6. CERTAIN DEFINITIONS.
For the purposes of this Contract, the "affirmative vote of a majority
of the outstanding shares" means the affirmative vote, at a duly called and held
meeting of shareholders, (a) of the holders of 67% or more of the shares of the
Fund present (in person or by proxy) and entitled to vote at such meeting, if
the holders of more than 50% of the outstanding shares of the Fund entitled to
vote at such meeting are present in person or by proxy, or (b) of the holders of
more than 50% of the outstanding shares of the Fund entitled to vote at such
meeting, whichever is less.
For the purposes of this Contract, the terms "affiliated person",
"control", "interested person" and "assignment" shall have their respective
meanings defined in the Investment Company Act of 1940 and the Rules and
Regulations thereunder, subject, however, to such exemptions as may be granted
by the Securities and Exchange Commission under said Act; the term "specifically
approve at least annually" shall be construed in a manner consistent with the
Investment Company Act of 1940 and the Rules and Regulations thereunder; and the
term "brokerage and research services" shall have the meaning given in the
Securities Exchange Act of 1934 and the Rules and Regulations thereunder.
7. NONLIABILITY OF MANAGER.
In the absence of willful misfeasance, bad faith or gross negligence on
the part of the Manager, or reckless disregard of its obligations and duties
hereunder, the Manager shall not be subject to any liability to the Trust, or to
any shareholder of the Trust, for any act or omission in the course of, or
connected with, rendering services hereunder.
8. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS.
A copy of the Amended and Restated Agreement and Declaration of Trust
of the Trust is on file with the Secretary of The Commonwealth of Massachusetts,
and notice is hereby given that this instrument is executed on behalf of the
Trustees of the Trust as Trustees and not individually and that the obligations
of this instrument are not binding upon any of the Trustees or shareholders
individually but are binding only upon the assets and property of the Fund.
9. THE WORDS "CCI," "PACIFIC INVESTMENT MANAGEMENT COMPANY," "PFAMCO," "PIMCO"
OR "THOMSON".
The Manager owns the words "CCI," "Pacific Investment Management
Company," "PFAMCo," "PIMCO" and "Thomson" which may be used by the Trust only
with the consent of the Manager. The Manager consents to the use of the Trust of
the words "CCI," "Pacific Investment Management Company," "PFAMCo," "PIMCO" and
"Thomson," in such forms as the Manager shall in writing approve, but only on
condition and so long as (i) this Contract shall remain in full force and (ii)
the Trust shall fully perform, fulfill and comply with all provisions of this
Contract expressed herein to be performed, fulfilled or complied with by it. No
such name shall be used by the Trust at any time or in any place or for any
purposes or under any conditions except as in this section provided. The
foregoing authorization by the Manager to the Trust to use said name as part of
a business or name is not exclusive of the right of the Manager itself to use,
or to authorize others to use, the same; the Trust acknowledges and agrees that
as between the Manager and the Trust, the Manager has the exclusive right to so
authorize others to use the same; the Trust acknowledges and agrees that as
between the Manager and the Trust, the Manager has the exclusive right to so
use, or authorize others to use, said words and the Trust agrees to take such
action as may reasonably be requested by the Manager to give full effect to the
provisions of this section (including, without limitation, consenting to such
use of said words). Without limiting the generality of the foregoing, the Trust
agrees that, upon any termination of this Contract by either party or upon the
violation of any of its provisions by the Trust, the Trust will, at the request
of the Manager made within six months after the Manager has knowledge of such
termination or violation, use its best efforts to change the name of the Trust
so as to eliminate all reference, if any, to the words "CCI," "Pacific
Investment Management Company, " "PFAMCo," "PIMCO" and "Thomson" and will not
thereafter transact any business in a name containing the words "CCI," "Pacific
Investment Management Company," "PFAMCo," "PIMCO" or "Thomson" in any form or
combination whatsoever, or designate itself as the same entity as or successor
to an entity of such name, or otherwise use the words "CCI," "Pacific Investment
Management Company," "PFAMCo," "PIMCO" or "Thomson" or any other reference to
the Manager. Such covenants on the part of the Trust shall be binding upon it,
its trustees, officers, stockholders, creditors and all other persons claiming
under or through it.
IN WITNESS WHEREOF, THOMSON FUND GROUP and PIMCO ADVISORS L.P. have
each caused this instrument to be signed in duplicate in its behalf by its duly
authorized representative, all as of the day and year first above written.
THOMSON FUND GROUP
By: Xxxxxx X. Xxxxxxxxxxx
PIMCO ADVISORS L.P.
By: PIMCO Partners, G.P., a California
general partnership, General Partner
By: PIMCO Partners, LLC, a California
limited liability company, General Partner
By: Xxxxxxx X. Xxxxxxxx
3007762.02
MANAGEMENT CONTRACT
[Target Fund]
Management Contract executed as of November 16, 1994 between THOMSON
FUND GROUP, a Massachusetts business trust (the "Trust"), on behalf of its
THOMSON TARGET FUND (the "Fund"), and PIMCO ADVISORS L.P., a Delaware limited
partnership (the "Manager").
Witnesseth:
That in consideration of the mutual covenants herein contained, it is
agreed as follows:
1. SERVICES TO BE RENDERED BY MANAGER TO FUND.
(a) Subject always to the control of the Trustees of the Trust and to
such policies as the Trustees may determine, the Manager will, at its expense,
(i) furnish continuously an investment program for the Fund and will make
investment decisions on behalf of the Fund and place all orders for the purchase
and sale of portfolio securities and (ii) furnish office space and equipment,
provide bookkeeping and clerical services (excluding determination of net asset
value and shareholder accounting services) and pay all salaries, fees and
expenses of officers and Trustees of the Trust who are affiliated with the
Manager. In the performance of its duties, the Manager will comply with the
provisions of the Amended and Restated Agreement and Declaration of Trust and
By-laws of the Trust and its stated investment objectives, policies and
restrictions.
-7-
(b) In the selection of brokers or dealers and the placing of orders
for the purchase and sale of portfolio investments for the Fund, the Manager
shall seek to obtain for the Fund the most favorable price and execution
available, except to the extent it may be permitted to pay higher brokerage
commissions for brokerage and research services as described below. In using its
best efforts to obtain for the Fund the most favorable price and execution
available, the Manager, bearing in mind the Fund's best interests at all times,
shall consider all factors it deems relevant, including by way of illustration,
price, the size of the transaction, the nature of the market for the security,
the amount of the commission, the timing of the transaction taking into account
market prices and trends, the reputation, experience and financial stability of
the broker or dealer involved and the quality of service rendered by the broker
or dealer in other transactions. Subject to such policies as the Trustees may
determine, the Manager shall not be deemed to have acted unlawfully or to have
breached any duty created by this Contract or otherwise solely by reason of its
having caused the Fund to pay a broker or dealer that provides brokerage and
research services to the Manager an amount of commission for effecting a
portfolio investment transaction in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction, if the
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
Manager's overall responsibilities with respect to the Trust and to other
clients of the Manager as to which the Manager exercises investment discretion.
The Trust hereby agrees with the Manager and with any Sub-Adviser selected by
the Manager as provided in Section 1(c) hereof that any entity or person
associated with the Manager which is a member of a national securities exchange
is authorized to effect any transaction on such exchange for the account of the
Trust and the Fund which is permitted by Section 11(a) of the Securities
Exchange Act of 1934 and Rule 11a2-2(T) thereunder, and the Trust hereby
consents to the retention of compensation for such transactions in accordance
with Rule 11a2-2(T)(2)(iv).
(c) Subject to the provisions of the Agreement and Declaration of Trust
of the Trust and the Investment Company Act of 1940 (the "1940 Act"), the
Manager, at its expense, may select and contract with investment advisers (the
"Sub-Advisers") for the Fund. So long as Columbus Circle Investors serves as
Sub-Adviser to the Fund pursuant to a Sub-Adviser Agreement in substantially the
form attached hereto as Exhibit A (the "Sub-Adviser Agreement"), the obligation
of the Manager under this Contract with respect to the Fund shall be subject in
any event to the control of the Trustees of the Trust, to determine and review
with Columbus Circle Investors investment policies of the Fund and Columbus
Circle Investors shall have the obligation of furnishing continuously an
investment program and making investment decisions for the Fund, adhering to
applicable investment objectives, policies and restrictions and placing all
orders for the purchase and sale of portfolio securities for the Fund. The
Manager will compensate any Sub-Adviser of the Fund for its services to the
Fund. The Manager may terminate the services of the Sub-Adviser at any time in
its sole discretion, and shall at such time assume the responsibilities of such
Sub-Adviser unless and until a successor Sub-Adviser is selected.
(d) The Manager shall not be obligated to pay any expenses of or for
the Trust not expressly assumed by the Manager pursuant to this Section 1 other
than as provided in Section 3.
2. OTHER AGREEMENTS, ETC.
It is understood that any of the shareholders, Trustees, officers and
employees of the Trust may be a shareholder, director, officer or employee of,
or be otherwise interested in, the Manager, and in any person controlled by or
under common control with the Manager, and that the Manager and any person
controlled by or under common control with the Manager may have an interest in
the Trust. It is also understood that the Manager and persons controlled by or
under common control with the Manager have and may have advisory, management
service, distribution or other contracts with other organizations and persons,
and may have other interests and businesses.
3. COMPENSATION TO BE PAID BY THE TRUST TO THE MANAGER.
The Trust will pay to the Manager as compensation for the Manager's
services rendered, for the facilities furnished and for the expenses borne by
the Manager pursuant to Section 1, a fee, computed and paid monthly at the
annual rate of 0.75% of the average daily net asset value of the Fund up to $200
million and 0.70% of such net asset value in excess of $200 million. The average
daily net asset value of the Fund shall be determined by taking an average of
all of the determinations of such net asset value during such month at the close
of business on each business day during such month while this Contract is in
effect. Such fee shall be payable for each month within five (5) business days
after the end of such month.
In the event that expenses of the Fund for any fiscal year should
exceed the expense limitation on investment company expenses imposed by any
statute or regulatory authority of any jurisdiction in which shares of the Trust
are qualified for offer and sale, the compensation due the Manager for such
fiscal year shall be reduced by the amount of such excess by a reduction or
refund thereof. In the event that the expenses with respect to the Fund could
exceed any expense limitation which the Manager may, by written notice to the
Trust, voluntarily declare to be effective subject to such terms and conditions
as the Manager may prescribe in such notice, the compensation due the Manager
shall be reduced, and, if necessary, the Manager shall bear expenses with
respect to the Fund, to the extent required by such expense limitation.
If the Manager shall serve for less than the whole of a month, the
foregoing compensation shall be prorated.
4. ASSIGNMENT TERMINATES THIS CONTRACT; AMENDMENTS OF THIS CONTRACT.
This Contract shall automatically terminate, without the payment of any
penalty, in the event of its assignment; and this Contract shall not be amended
as to the Fund unless such amendment is approved at a meeting by the affirmative
vote of a majority of the outstanding shares of the Fund, and by the vote, cast
in person at a meeting called for the purpose of voting on such approval, of a
majority of the Trustees of the Trust who are not interested persons of the
Trust or of the Manager or of any Sub-Adviser of the Fund.
5. EFFECTIVE PERIOD AND TERMINATION OF THIS CONTRACT.
This Contract shall become effective upon its execution, and shall
remain in full force and effect as to each Fund continuously thereafter (unless
terminated automatically as set forth in Section 4) until terminated as follows:
(a) Either party hereto may at any time terminate this
Contract by not more than sixty days' written notice delivered or
mailed by registered mail, postage prepaid, to the other party, or
(b) If (i) the Trustees of the Trust or the shareholders by
the affirmative vote of a majority of the outstanding shares of the
Fund, and (ii) a majority of the Trustees of the Trust who are not
interested persons of the Trust or of the Manager, by vote cast in
person at a meeting called for the purpose of voting on such approval,
do not specifically approve at least annually the continuance of this
Contract, then this Contract shall automatically terminate at the close
of business on the second anniversary of its execution, or upon the
expiration of one year from the effective date of the last such
continuance, whichever is later; provided, however, that if the
continuance of this Contract is submitted to the shareholders of the
Fund for their approval and such shareholders fail to approve such
continuance of this Contract as provided herein, the Manager may
continue to serve hereunder in a manner consistent with the Investment
Company Act of 1940 and the Rules and Regulations thereunder.
Action by the Trust under (a) above may be taken either (i) by vote of
a majority of its Trustees, or (ii) by the affirmative vote of a majority of the
outstanding shares of the Fund.
Termination of this Contract pursuant to this Section 5 shall be
without the payment of any penalty.
6. CERTAIN DEFINITIONS.
For the purposes of this Contract, the "affirmative vote of a majority
of the outstanding shares" means the affirmative vote, at a duly called and held
meeting of shareholders, (a) of the holders of 67% or more of the shares of the
Fund present (in person or by proxy) and entitled to vote at such meeting, if
the holders of more than 50% of the outstanding shares of the Fund entitled to
vote at such meeting are present in person or by proxy, or (b) of the holders of
more than 50% of the outstanding shares of the Fund entitled to vote at such
meeting, whichever is less.
For the purposes of this Contract, the terms "affiliated person",
"control", "interested person" and "assignment" shall have their respective
meanings defined in the Investment Company Act of 1940 and the Rules and
Regulations thereunder, subject, however, to such exemptions as may be granted
by the Securities and Exchange Commission under said Act; the term "specifically
approve at least annually" shall be construed in a manner consistent with the
Investment Company Act of 1940 and the Rules and Regulations thereunder; and the
term "brokerage and research services" shall have the meaning given in the
Securities Exchange Act of 1934 and the Rules and Regulations thereunder.
7. NONLIABILITY OF MANAGER.
In the absence of willful misfeasance, bad faith or gross negligence on
the part of the Manager, or reckless disregard of its obligations and duties
hereunder, the Manager shall not be subject to any liability to the Trust, or to
any shareholder of the Trust, for any act or omission in the course of, or
connected with, rendering services hereunder.
8. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS.
A copy of the Amended and Restated Agreement and Declaration of Trust
of the Trust is on file with the Secretary of The Commonwealth of Massachusetts,
and notice is hereby given that this instrument is executed on behalf of the
Trustees of the Trust as Trustees and not individually and that the obligations
of this instrument are not binding upon any of the Trustees or shareholders
individually but are binding only upon the assets and property of the Fund.
9. THE WORDS "CCI," "PACIFIC INVESTMENT MANAGEMENT COMPANY," "PFAMCO," "PIMCO"
OR "THOMSON".
The Manager owns the words "CCI," "Pacific Investment Management
Company," "PFAMCo," "PIMCO" and "Thomson" which may be used by the Trust only
with the consent of the Manager. The Manager consents to the use of the Trust of
the words "CCI," "Pacific Investment Management Company," "PFAMCo," "PIMCO" and
"Thomson," in such forms as the Manager shall in writing approve, but only on
condition and so long as (i) this Contract shall remain in full force and (ii)
the Trust shall fully perform, fulfill and comply with all provisions of this
Contract expressed herein to be performed, fulfilled or complied with by it. No
such name shall be used by the Trust at any time or in any place or for any
purposes or under any conditions except as in this section provided. The
foregoing authorization by the Manager to the Trust to use said name as part of
a business or name is not exclusive of the right of the Manager itself to use,
or to authorize others to use, the same; the Trust acknowledges and agrees that
as between the Manager and the Trust, the Manager has the exclusive right to so
authorize others to use the same; the Trust acknowledges and agrees that as
between the Manager and the Trust, the Manager has the exclusive right to so
use, or authorize others to use, said words and the Trust agrees to take such
action as may reasonably be requested by the Manager to give full effect to the
provisions of this section (including, without limitation, consenting to such
use of said words). Without limiting the generality of the foregoing, the Trust
agrees that, upon any termination of this Contract by either party or upon the
violation of any of its provisions by the Trust, the Trust will, at the request
of the Manager made within six months after the Manager has knowledge of such
termination or violation, use its best efforts to change the name of the Trust
so as to eliminate all reference, if any, to the words "CCI," "Pacific
Investment Management Company, " "PFAMCo," "PIMCO" and "Thomson" and will not
thereafter transact any business in a name containing the words "CCI," "Pacific
Investment Management Company," "PFAMCo," "PIMCO" or "Thomson" in any form or
combination whatsoever, or designate itself as the same entity as or successor
to an entity of such name, or otherwise use the words "CCI," "Pacific Investment
Management Company," "PFAMCo," "PIMCO" or "Thomson" or any other reference to
the Manager. Such covenants on the part of the Trust shall be binding upon it,
its trustees, officers, stockholders, creditors and all other persons claiming
under or through it.
IN WITNESS WHEREOF, THOMSON FUND GROUP and PIMCO ADVISORS L.P. have
each caused this instrument to be signed in duplicate in its behalf by its duly
authorized representative, all as of the day and year first above written.
THOMSON FUND GROUP
By: Xxxxxx X. Xxxxxxxxxxx
PIMCO ADVISORS L.P.
By: PIMCO Partners, G.P., a California
general partnership, General Partner
By: PIMCO Partners, LLC, a California
limited liability company, General Partner
By: Xxxxxxx X. Xxxxxxxx
3033748.01
MANAGEMENT CONTRACT
Discovery Fund
Management Contract executed as of May 11, 1995 between PIMCO ADVISORS
FUNDS, a Massachusetts business trust (the "Trust") on behalf of its Discovery
Fund (the "Fund"), and PIMCO ADVISORS L.P., a Delaware limited partnership (the
"Manager").
WITNESSETH:
That in consideration of the mutual covenants herein contained, it is
agreed as follows:
1. SERVICES TO BE RENDERED BY MANAGER TO FUND.
(a) Subject always to the control of the Trustees of the Trust and to
such policies as the Trustees may determine, the Manager will, at its expense,
(i) furnish continuously an investment program for the Fund and will make
investment decisions on behalf of the Fund and place all orders for the purchase
and sale of portfolio securities and (ii) furnish office space and equipment,
provide bookkeeping and clerical services (excluding determination of net asset
value and shareholder accounting services) and pay all salaries, fees and
expenses of officers and Trustees of the Trust who are affiliated with the
Manager. In the performance of its duties, the Manager will comply with the
provisions of the Amended and Restated Agreement and Declaration of Trust and
By-laws of the Trust and its stated investment objectives, policies and
restrictions.
-7-
(b) In the selection of brokers or dealers and the placing of orders
for the purchase and sale of portfolio investments for the Fund, the Manager
shall seek to obtain for the Fund the most favorable price and execution
available, except to the extent it may be permitted to pay higher brokerage
commissions for brokerage and research services as described below. In using its
best efforts to obtain for the Fund the most favorable price and execution
available, the Manager, bearing in mind the Fund's best interests at all times,
shall consider all factors it deems relevant, including by way of illustration,
price, the size of the transaction, the nature of the market for the security,
the amount of the commission, the timing of the transaction taking into account
market prices and trends, the reputation, experience and financial stability of
the broker or dealer involved and the quality of service rendered by the broker
or dealer in other transactions. Subject to such policies as the Trustees may
determine, the Manager shall not be deemed to have acted unlawfully or to have
breached any duty created by this Contract or otherwise solely by reason of its
having caused the Fund to pay a broker or dealer that provides brokerage and
research services to the Manager an amount of commission for effecting a
portfolio investment transaction in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction, if the
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
Manager's overall responsibilities with respect to the Trust and to other
clients of the Manager as to which the Manager exercises investment discretion.
The Trust hereby agrees with the Manager and with any Sub-Adviser selected by
the Manager as provided in Section 1(c) hereof that any entity or person
associated with the Manager which is a member of a national securities exchange
is authorized to effect any transaction on such exchange for the account of the
Trust and the Fund which is permitted by Section 11(a) of the Securities
Exchange Act of 1934 and Rule 11a2-2(T) thereunder, and the Trust hereby
consents to the retention of compensation for such transactions in accordance
with Rule 11a2-2(T)(2)(iv).
(c) Subject to the provisions of the Agreement and Declaration of Trust
of the Trust and the Investment Company Act of 1940 (the "1940 Act"), the
Manager, at its expense, may select and contract with investment advisers (the
"Sub-Advisers") for the Fund. So long as Cadence Capital Managment serves as
Sub-Adviser to the Fund pursuant to a Sub-Adviser Agreement in substantially the
form attached hereto as Exhibit A (the "Sub-Adviser Agreement"), the obligation
of the Manager under this Contract with respect to the Fund shall be subject in
any event to the control of the Trustees of the Trust, to determine and review
with Cadence Capital Managment investment policies of the Fund and Cadence
Capital Managment shall have the obligation of furnishing continuously an
investment program and making investment decisions for the Fund, adhering to
applicable investment objectives, policies and restrictions and placing all
orders for the purchase and sale of portfolio securities for the Fund. The
Manager will compensate any Sub-Adviser of the Fund for its services to the
Fund. The Manager may terminate the services of the Sub-Adviser at any time in
its sole discretion, and shall at such time assume the responsibilities of such
Sub-Adviser unless and until a successor Sub-Adviser is selected.
(d) The Manager shall not be obligated to pay any expenses of or for
the Trust not expressly assumed by the Manager pursuant to this Section 1 other
than as provided in Section 3.
2. OTHER AGREEMENTS, ETC.
It is understood that any of the shareholders, Trustees, officers and
employees of the Trust may be a shareholder, director, officer or employee of,
or be otherwise interested in, the Manager, and in any person controlled by or
under common control with the Manager, and that the Manager and any person
controlled by or under common control with the Manager may have an interest in
the Trust. It is also understood that the Manager and persons controlled by or
under common control with the Manager have and may have advisory, management
service, distribution or other contracts with other organizations and persons,
and may have other interests and businesses.
3. COMPENSATION TO BE PAID BY THE TRUST TO THE MANAGER.
The Trust will pay to the Manager as compensation for the Manager's
services rendered, for the facilities furnished and for the expenses borne by
the Manager pursuant to Section 1, a fee, computed and paid monthly at the
annual rate of 0.75% of the average daily net asset value of the Fund up to $200
million and 0.70% of such net asset value in excess of $200 million. The average
daily net asset value of the Fund shall be determined by taking an average of
all of the determinations of such net asset value during such month at the close
of business on each business day during such month while this Contract is in
effect. Such fee shall be payable for each month within five (5) business days
after the end of such month.
In the event that expenses of the Fund for any fiscal year should
exceed the expense limitation on investment company expenses imposed by any
statute or regulatory authority of any jurisdiction in which shares of the Trust
are qualified for offer and sale, the compensation due the Manager for such
fiscal year shall be reduced by the amount of such excess by a reduction or
refund thereof. In the event that the expenses with respect to the Fund could
exceed any expense limitation which the Manager may, by written notice to the
Trust, voluntarily declare to be effective subject to such terms and conditions
as the Manager may prescribe in such notice, the compensation due the Manager
shall be reduced, and, if necessary, the Manager shall bear expenses with
respect to the Fund, to the extent required by such expense limitation.
If the Manager shall serve for less than the whole of a month, the
foregoing compensation shall be prorated.
4. ASSIGNMENT TERMINATES THIS CONTRACT; AMENDMENTS OF THIS CONTRACT.
This Contract shall automatically terminate, without the payment of any
penalty, in the event of its assignment; and this Contract shall not be amended
as to the Fund unless such amendment is approved at a meeting by the affirmative
vote of a majority of the outstanding shares of the Fund, and by the vote, cast
in person at a meeting called for the purpose of voting on such approval, of a
majority of the Trustees of the Trust who are not interested persons of the
Trust or of the Manager or of any Sub-Adviser of the Fund.
5. EFFECTIVE PERIOD AND TERMINATION OF THIS CONTRACT.
This Contract shall become effective upon its execution, and shall
remain in full force and effect as to each Fund continuously thereafter (unless
terminated automatically as set forth in Section 4) until terminated as follows:
(a) Either party hereto may at any time terminate this
Contract by not more than sixty days' written notice delivered or
mailed by registered mail, postage prepaid, to the other party, or
(b) If (i) the Trustees of the Trust or the shareholders by
the affirmative vote of a majority of the outstanding shares of the
Fund, and (ii) a majority of the Trustees of the Trust who are not
interested persons of the Trust or of the Manager, by vote cast in
person at a meeting called for the purpose of voting on such approval,
do not specifically approve at least annually the continuance of this
Contract, then this Contract shall automatically terminate at the close
of business on the second anniversary of its execution, or upon the
expiration of one year from the effective date of the last such
continuance, whichever is later; provided, however, that if the
continuance of this Contract is submitted to the shareholders of the
Fund for their approval and such shareholders fail to approve such
continuance of this Contract as provided herein, the Manager may
continue to serve hereunder in a manner consistent with the Investment
Company Act of 1940 and the Rules and Regulations thereunder.
Action by the Trust under (a) above may be taken either (i) by vote of
a majority of its Trustees, or (ii) by the affirmative vote of a majority of the
outstanding shares of the Fund.
Termination of this Contract pursuant to this Section 5 shall be
without the payment of any penalty.
6. CERTAIN DEFINITIONS.
For the purposes of this Contract, the "affirmative vote of a majority
of the outstanding shares" means the affirmative vote, at a duly called and held
meeting of shareholders, (a) of the holders of 67% or more of the shares of the
Fund present (in person or by proxy) and entitled to vote at such meeting, if
the holders of more than 50% of the outstanding shares of the Fund entitled to
vote at such meeting are present in person or by proxy, or (b) of the holders of
more than 50% of the outstanding shares of the Fund entitled to vote at such
meeting, whichever is less.
For the purposes of this Contract, the terms "affiliated person",
"control", "interested person" and "assignment" shall have their respective
meanings defined in the Investment Company Act of 1940 and the Rules and
Regulations thereunder, subject, however, to such exemptions as may be granted
by the Securities and Exchange Commission under said Act; the term "specifically
approve at least annually" shall be construed in a manner consistent with the
Investment Company Act of 1940 and the Rules and Regulations thereunder; and the
term "brokerage and research services" shall have the meaning given in the
Securities Exchange Act of 1934 and the Rules and Regulations thereunder.
7. NONLIABILITY OF MANAGER.
In the absence of willful misfeasance, bad faith or gross negligence on
the part of the Manager, or reckless disregard of its obligations and duties
hereunder, the Manager shall not be subject to any liability to the Trust, or to
any shareholder of the Trust, for any act or omission in the course of, or
connected with, rendering services hereunder.
8. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS.
A copy of the Amended and Restated Agreement and Declaration of Trust
of the Trust is on file with the Secretary of The Commonwealth of Massachusetts,
and notice is hereby given that this instrument is executed on behalf of the
Trustees of the Trust as Trustees and not individually and that the obligations
of this instrument are not binding upon any of the Trustees or shareholders
individually but are binding only upon the assets and property of the Fund.
9. THE WORDS "CCI," "PACIFIC INVESTMENT MANAGEMENT COMPANY," "PFAMCO,"
"PIMCO," "NFJ," "CADENCE" OR "THOMSON".
The Manager owns the words "CCI," "Pacific Investment Management
Company," "PFAMCo," "PIMCO," "PIMCO Advisors," "NFJ," "Cadence" and "Thomson"
which may be used by the Trust only with the consent of the Manager. The Manager
consents to the use of the Trust of the words "CCI," "Pacific Investment
Management Company," "PFAMCo, "PIMCO," "NFJ," "Cadence" and "Thomson," in such
forms as the Manager shall in writing approve, but only on condition and so long
as (i) this Contract shall remain in full force and (ii) the Trust shall fully
perform, fulfill and comply with all provisions of this Contract expressed
herein to be performed, fulfilled or complied with by it. No such name shall be
used by the Trust at any time or in any place or for any purposes or under any
conditions except as in this section provided. The foregoing authorization by
the Manager to the Trust to use said name as part of a business or name is not
exclusive of the right of the Manager itself to use, or to authorize others to
use, the same; the Trust acknowledges and agrees that as between the Manager and
the Trust, the Manager has the exclusive right to so authorize others to use the
same; the Trust acknowledges and agrees that as between the Manager and the
Trust, the Manager has the exclusive right to so use, or authorize others to
use, said words and the Trust agrees to take such action as may reasonably be
requested by the Manager to give full effect to the provisions of this section
(including, without limitation, consenting to such use of said words). Without
limiting the generality of the foregoing, the Trust agrees that, upon any
termination of this Contract by either party or upon the violation of any of its
provisions by the Trust, the Trust will, at the request of the Manager made
within six months after the Manager has knowledge of such termination or
violation, use its best efforts to change the name of the Trust so as to
eliminate all reference, if any, to the words "CCI," "Pacific Investment
Management Company, " "PFAMCo," "PIMCO," "NFJ," "Cadence" and "Thomson" and will
not thereafter transact any business in a name containing the words "CCI,"
"Pacific Investment Management Company," "PFAMCo," "PIMCO," "PIMCO Advisors,"
"NFJ," "Cadence" or "Thomson" in any form or combination whatsoever, or
designate itself as the same entity as or successor to an entity of such name,
or otherwise use the words "CCI," "Pacific Investment Management Company,"
"PFAMCo," "PIMCO," "PIMCO Advisors," "NFJ," "Cadence" or "Thomson" or any other
reference to the Manager. Such covenants on the part of the Trust shall be
binding upon it, its trustees, officers, stockholders, creditors and all other
persons claiming under or through it.
IN WITNESS WHEREOF, PIMCO ADVISORS FUNDS and PIMCO ADVISORS L.P. have
each caused this instrument to be signed in duplicate in its behalf by its duly
authorized representative, all as of the day and year first above written.
PIMCO ADVISORS FUNDS
By: Xxxxxx X. Xxxxxxxxxxx
Title: President
PIMCO ADVISORS L.P.
By: Xxxxxx X. Xxxxxxxxxxx
Title: Executive Vice President
MANAGEMENT CONTRACT
[Opportunity Fund]
Management Contract executed as of November 16, 1994 between THOMSON
FUND GROUP, a Massachusetts business trust (the "Trust") on behalf of its
Thomson Opportunity Fund (the "Fund"), and PIMCO ADVISORS L.P., a Delaware
limited partnership (the "Manager").
WITNESSETH:
That in consideration of the mutual covenants herein contained, it is
agreed as follows:
1. SERVICES TO BE RENDERED BY MANAGER TO FUND.
(a) Subject always to the control of the Trustees of the Trust and to
such policies as the Trustees may determine, the Manager will, at its expense,
(i) furnish continuously an investment program for the Fund and will make
investment decisions on behalf of the Fund and place all orders for the purchase
and sale of portfolio securities and (ii) furnish office space and equipment,
provide bookkeeping and clerical services (excluding determination of net asset
value and shareholder accounting services) and pay all salaries, fees and
expenses of officers and Trustees of the Trust who are affiliated with the
Manager. In the performance of its duties, the Manager will comply with the
provisions of the Amended and Restated Agreement and Declaration of Trust and
By-laws of the Trust and its stated investment objectives, policies and
restrictions.
-5-
(b) In the selection of brokers or dealers and the placing of orders
for the purchase and sale of portfolio investments for the Fund, the Manager
shall seek to obtain for the Fund the most favorable price and execution
available, except to the extent it may be permitted to pay higher brokerage
commissions for brokerage and research services as described below. In using its
best efforts to obtain for the Fund the most favorable price and execution
available, the Manager, bearing in mind the Fund's best interests at all times,
shall consider all factors it deems relevant, including by way of illustration,
price, the size of the transaction, the nature of the market for the security,
the amount of the commission, the timing of the transaction taking into account
market prices and trends, the reputation, experience and financial stability of
the broker or dealer involved and the quality of service rendered by the broker
or dealer in other transactions. Subject to such policies as the Trustees may
determine, the Manager shall not be deemed to have acted unlawfully or to have
breached any duty created by this Contract or otherwise solely by reason of its
having caused the Fund to pay a broker or dealer that provides brokerage and
research services to the Manager an amount of commission for effecting a
portfolio investment transaction in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction, if the
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
Manager's overall responsibilities with respect to the Trust and to other
clients of the Manager as to which the Manager exercises investment discretion.
The Trust hereby agrees with the Manager and with any Sub-Adviser selected by
the Manager as provided in Section 1(c) hereof that any entity or person
associated with the Manager which is a member of a national securities exchange
is authorized to effect any transaction on such exchange for the account of the
Trust and the Fund which is permitted by Section 11(a) of the Securities
Exchange Act of 1934 and Rule 11a2-2(T) thereunder, and the Trust hereby
consents to the retention of compensation for such transactions in accordance
with Rule 11a2-2(T)(2)(iv).
(c) Subject to the provisions of the Agreement and Declaration of Trust
of the Trust and the Investment Company Act of 1940 (the "1940 Act"), the
Manager, at its expense, may select and contract with investment advisers (the
"Sub-Advisers") for the Fund. So long as Columbus Circle Investors serves as
Sub-Adviser to the Fund pursuant to a Sub-Adviser Agreement in substantially the
form attached hereto as Exhibit A (the "Sub-Adviser Agreement"), the obligation
of the Manager under this Contract with respect to the Fund shall be subject in
any event to the control of the Trustees of the Trust, to determine and review
with Columbus Circle Investors investment policies of the Fund and Columbus
Circle Investors shall have the obligation of furnishing continuously an
investment program and making investment decisions for the Fund, adhering to
applicable investment objectives, policies and restrictions and placing all
orders for the purchase and sale of portfolio securities for the Fund. The
Manager will compensate any Sub-Adviser of the Fund for its services to the
Fund. The Manager may terminate the services of the Sub-Adviser at any time in
its sole discretion, and shall at such time assume the responsibilities of such
Sub-Adviser unless and until a successor Sub-Adviser is selected.
(d) The Manager shall not be obligated to pay any expenses of or for
the Trust not expressly assumed by the Manager pursuant to this Section 1 other
than as provided in Section 3.
2. OTHER AGREEMENTS, ETC.
It is understood that any of the shareholders, Trustees, officers and
employees of the Trust may be a shareholder, director, officer or employee of,
or be otherwise interested in, the Manager, and in any person controlled by or
under common control with the Manager, and that the Manager and any person
controlled by or under common control with the Manager may have an interest in
the Trust. It is also understood that the Manager and persons controlled by or
under common control with the Manager have and may have advisory, management
service, distribution or other contracts with other organizations and persons,
and may have other interests and businesses.
3. COMPENSATION TO BE PAID BY THE TRUST TO THE MANAGER.
The Trust will pay to the Manager as compensation for the Manager's
services rendered, for the facilities furnished and for the expenses borne by
the Manager pursuant to Section 1, a fee, computed and paid monthly at the
annual rate of 0.75% of the average daily net asset value of the Fund up to $200
million and 0.70% of such net asset value in excess of $200 million. The average
daily net asset value of the Fund shall be determined by taking an average of
all of the determinations of such net asset value during such month at the close
of business on each business day during such month while this Contract is in
effect. Such fee shall be payable for each month within five (5) business days
after the end of such month.
In the event that expenses of the Fund for any fiscal year should
exceed the expense limitation on investment company expenses imposed by any
statute or regulatory authority of any jurisdiction in which shares of the Trust
are qualified for offer and sale, the compensation due the Manager for such
fiscal year shall be reduced by the amount of such excess by a reduction or
refund thereof. In the event that the expenses with respect to the Fund could
exceed any expense limitation which the Manager may, by written notice to the
Trust, voluntarily declare to be effective subject to such terms and conditions
as the Manager may prescribe in such notice, the compensation due the Manager
shall be reduced, and, if necessary, the Manager shall bear expenses with
respect to the Fund, to the extent required by such expense limitation.
If the Manager shall serve for less than the whole of a month, the
foregoing compensation shall be prorated.
4. ASSIGNMENT TERMINATES THIS CONTRACT; AMENDMENTS OF THIS CONTRACT.
This Contract shall automatically terminate, without the payment of any
penalty, in the event of its assignment; and this Contract shall not be amended
as to the Fund unless such amendment is approved at a meeting by the affirmative
vote of a majority of the outstanding shares of the Fund, and by the vote, cast
in person at a meeting called for the purpose of voting on such approval, of a
majority of the Trustees of the Trust who are not interested persons of the
Trust or of the Manager or of any Sub-Adviser of the Fund.
5. EFFECTIVE PERIOD AND TERMINATION OF THIS CONTRACT.
This Contract shall become effective upon its execution, and shall
remain in full force and effect as to each Fund continuously thereafter (unless
terminated automatically as set forth in Section 4) until terminated as follows:
(a) Either party hereto may at any time terminate this
Contract by not more than sixty days' written notice delivered or
mailed by registered mail, postage prepaid, to the other party, or
(b) If (i) the Trustees of the Trust or the shareholders by
the affirmative vote of a majority of the outstanding shares of the
Fund, and (ii) a majority of the Trustees of the Trust who are not
interested persons of the Trust or of the Manager, by vote cast in
person at a meeting called for the purpose of voting on such approval,
do not specifically approve at least annually the continuance of this
Contract, then this Contract shall automatically terminate at the close
of business on the second anniversary of its execution, or upon the
expiration of one year from the effective date of the last such
continuance, whichever is later; provided, however, that if the
continuance of this Contract is submitted to the shareholders of the
Fund for their approval and such shareholders fail to approve such
continuance of this Contract as provided herein, the Manager may
continue to serve hereunder in a manner consistent with the Investment
Company Act of 1940 and the Rules and Regulations thereunder.
Action by the Trust under (a) above may be taken either (i) by vote of
a majority of its Trustees, or (ii) by the affirmative vote of a majority of the
outstanding shares of the Fund.
Termination of this Contract pursuant to this Section 5 shall be
without the payment of any penalty.
6. CERTAIN DEFINITIONS.
For the purposes of this Contract, the "affirmative vote of a majority
of the outstanding shares" means the affirmative vote, at a duly called and held
meeting of shareholders, (a) of the holders of 67% or more of the shares of the
Fund present (in person or by proxy) and entitled to vote at such meeting, if
the holders of more than 50% of the outstanding shares of the Fund entitled to
vote at such meeting are present in person or by proxy, or (b) of the holders of
more than 50% of the outstanding shares of the Fund entitled to vote at such
meeting, whichever is less.
For the purposes of this Contract, the terms "affiliated person",
"control", "interested person" and "assignment" shall have their respective
meanings defined in the Investment Company Act of 1940 and the Rules and
Regulations thereunder, subject, however, to such exemptions as may be granted
by the Securities and Exchange Commission under said Act; the term "specifically
approve at least annually" shall be construed in a manner consistent with the
Investment Company Act of 1940 and the Rules and Regulations thereunder; and the
term "brokerage and research services" shall have the meaning given in the
Securities Exchange Act of 1934 and the Rules and Regulations thereunder.
7. NONLIABILITY OF MANAGER.
In the absence of willful misfeasance, bad faith or gross negligence on
the part of the Manager, or reckless disregard of its obligations and duties
hereunder, the Manager shall not be subject to any liability to the Trust, or to
any shareholder of the Trust, for any act or omission in the course of, or
connected with, rendering services hereunder.
8. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS.
A copy of the Amended and Restated Agreement and Declaration of Trust
of the Trust is on file with the Secretary of The Commonwealth of Massachusetts,
and notice is hereby given that this instrument is executed on behalf of the
Trustees of the Trust as Trustees and not individually and that the obligations
of this instrument are not binding upon any of the Trustees or shareholders
individually but are binding only upon the assets and property of the Fund.
9. THE WORDS "CCI," "PACIFIC INVESTMENT MANAGEMENT COMPANY," "PFAMCO,"
"PIMCO" OR "THOMSON".
The Manager owns the words "CCI," "Pacific Investment Management
Company," "PFAMCo," "PIMCO" and "Thomson" which may be used by the Trust only
with the consent of the Manager. The Manager consents to the use of the Trust of
the words "CCI," "Pacific Investment Management Company," "PFAMCo," "PIMCO" and
"Thomson," in such forms as the Manager shall in writing approve, but only on
condition and so long as (i) this Contract shall remain in full force and (ii)
the Trust shall fully perform, fulfill and comply with all provisions of this
Contract expressed herein to be performed, fulfilled or complied with by it. No
such name shall be used by the Trust at any time or in any place or for any
purposes or under any conditions except as in this section provided. The
foregoing authorization by the Manager to the Trust to use said name as part of
a business or name is not exclusive of the right of the Manager itself to use,
or to authorize others to use, the same; the Trust acknowledges and agrees that
as between the Manager and the Trust, the Manager has the exclusive right to so
authorize others to use the same; the Trust acknowledges and agrees that as
between the Manager and the Trust, the Manager has the exclusive right to so
use, or authorize others to use, said words and the Trust agrees to take such
action as may reasonably be requested by the Manager to give full effect to the
provisions of this section (including, without limitation, consenting to such
use of said words). Without limiting the generality of the foregoing, the Trust
agrees that, upon any termination of this Contract by either party or upon the
violation of any of its provisions by the Trust, the Trust will, at the request
of the Manager made within six months after the Manager has knowledge of such
termination or violation, use its best efforts to change the name of the Trust
so as to eliminate all reference, if any, to the words "CCI," "Pacific
Investment Management Company, " "PFAMCo," "PIMCO" and "Thomson" and will not
thereafter transact any business in a name containing the words "CCI," "Pacific
Investment Management Company," "PFAMCo," "PIMCO" or "Thomson" in any form or
combination whatsoever, or designate itself as the same entity as or successor
to an entity of such name, or otherwise use the words "CCI," "Pacific Investment
Management Company," "PFAMCo," "PIMCO" or "Thomson" or any other reference to
the Manager. Such covenants on the part of the Trust shall be binding upon it,
its trustees, officers, stockholders, creditors and all other persons claiming
under or through it.
IN WITNESS WHEREOF, THOMSON FUND GROUP and PIMCO ADVISORS L.P. have
each caused this instrument to be signed in duplicate in its behalf by its duly
authorized representative, all as of the day and year first above written.
THOMSON FUND GROUP
By: Xxxxxx X. Xxxxxxxxxxx
PIMCO ADVISORS L.P.
By: PIMCO Partners, G.P., a California
general partnership, General Partner
By: PIMCO Partners, LLC, a California
limited liability company, General Partner
By: Xxxxxxx X. Xxxxxxxx
3008032.01
MANAGEMENT CONTRACT
[Innovation Fund]
Management Contract executed as of November 15, 1994 between PIMCO
ADVISORS FUNDS, a Massachusetts business trust (the "Trust") on behalf of its
PIMCO Advisors Innovation Fund (the "Fund"), and PIMCO ADVISORS L.P., a Delaware
limited partnership (the "Manager").
WITNESSETH:
That in consideration of the mutual covenants herein contained, it is
agreed as follows:
1. SERVICES TO BE RENDERED BY MANAGER TO FUND.
(a) Subject always to the control of the Trustees of the Trust and to
such policies as the Trustees may determine, the Manager will, at its expense,
(i) furnish continuously an investment program for the Fund and will make
investment decisions on behalf of the Fund and place all orders for the purchase
and sale of portfolio securities and (ii) furnish office space and equipment,
provide bookkeeping and clerical services (excluding determination of net asset
value and shareholder accounting services) and pay all salaries, fees and
expenses of officers and Trustees of the Trust who are affiliated with the
Manager. In the performance of its duties, the Manager will comply with the
provisions of the Amended and Restated Agreement and Declaration of Trust and
By-laws of the Trust and its stated investment objectives, policies and
restrictions.
-7-
(b) In the selection of brokers or dealers and the placing of orders
for the purchase and sale of portfolio investments for the Fund, the Manager
shall seek to obtain for the Fund the most favorable price and execution
available, except to the extent it may be permitted to pay higher brokerage
commissions for brokerage and research services as described below. In using its
best efforts to obtain for the Fund the most favorable price and execution
available, the Manager, bearing in mind the Fund's best interests at all times,
shall consider all factors it deems relevant, including by way of illustration,
price, the size of the transaction, the nature of the market for the security,
the amount of the commission, the timing of the transaction taking into account
market prices and trends, the reputation, experience and financial stability of
the broker or dealer involved and the quality of service rendered by the broker
or dealer in other transactions. Subject to such policies as the Trustees may
determine, the Manager shall not be deemed to have acted unlawfully or to have
breached any duty created by this Contract or otherwise solely by reason of its
having caused the Fund to pay a broker or dealer that provides brokerage and
research services to the Manager an amount of commission for effecting a
portfolio investment transaction in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction, if the
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
Manager's overall responsibilities with respect to the Trust and to other
clients of the Manager as to which the Manager exercises investment discretion.
The Trust hereby agrees with the Manager and with any Sub-Adviser selected by
the Manager as provided in Section 1(c) hereof that any entity or person
associated with the Manager which is a member of a national securities exchange
is authorized to effect any transaction on such exchange for the account of the
Trust and the Fund which is permitted by Section 11(a) of the Securities
Exchange Act of 1934 and Rule 11a2-2(T) thereunder, and the Trust hereby
consents to the retention of compensation for such transactions in accordance
with Rule 11a2-2(T)(2)(iv).
(c) Subject to the provisions of the Agreement and Declaration of Trust
of the Trust and the Investment Company Act of 1940 (the "1940 Act"), the
Manager, at its expense, may select and contract with investment advisers (the
"Sub-Advisers") for the Fund. So long as Columbus Circle Investors serves as
Sub-Adviser to the Fund pursuant to a Sub-Adviser Agreement in substantially the
form attached hereto as Exhibit A (the "Sub-Adviser Agreement"), the obligation
of the Manager under this Contract with respect to the Fund shall be subject in
any event to the control of the Trustees of the Trust, to determine and review
with Columbus Circle Investors investment policies of the Fund and Columbus
Circle Investors shall have the obligation of furnishing continuously an
investment program and making investment decisions for the Fund, adhering to
applicable investment objectives, policies and restrictions and placing all
orders for the purchase and sale of portfolio securities for the Fund. The
Manager will compensate any Sub-Adviser of the Fund for its services to the
Fund. The Manager may terminate the services of the Sub-Adviser at any time in
its sole discretion, and shall at such time assume the responsibilities of such
Sub-Adviser unless and until a successor Sub-Adviser is selected.
(d) The Manager shall not be obligated to pay any expenses of or for
the Trust not expressly assumed by the Manager pursuant to this Section 1 other
than as provided in Section 3.
2. OTHER AGREEMENTS, ETC.
It is understood that any of the shareholders, Trustees, officers and
employees of the Trust may be a shareholder, director, officer or employee of,
or be otherwise interested in, the Manager, and in any person controlled by or
under common control with the Manager, and that the Manager and any person
controlled by or under common control with the Manager may have an interest in
the Trust. It is also understood that the Manager and persons controlled by or
under common control with the Manager have and may have advisory, management
service, distribution or other contracts with other organizations and persons,
and may have other interests and businesses.
3. COMPENSATION TO BE PAID BY THE TRUST TO THE MANAGER.
The Trust will pay to the Manager as compensation for the Manager's
services rendered, for the facilities furnished and for the expenses borne by
the Manager pursuant to Section 1, a fee, computed and paid monthly at the
annual rate of 0.75% of the average daily net asset value of the Fund up to $200
million and 0.70% of such net asset value in excess of $200 million. The average
daily net asset value of the Fund shall be determined by taking an average of
all of the determinations of such net asset value during such month at the close
of business on each business day during such month while this Contract is in
effect. Such fee shall be payable for each month within five (5) business days
after the end of such month.
In the event that expenses of the Fund for any fiscal year should
exceed the expense limitation on investment company expenses imposed by any
statute or regulatory authority of any jurisdiction in which shares of the Trust
are qualified for offer and sale, the compensation due the Manager for such
fiscal year shall be reduced by the amount of such excess by a reduction or
refund thereof. In the event that the expenses with respect to the Fund could
exceed any expense limitation which the Manager may, by written notice to the
Trust, voluntarily declare to be effective subject to such terms and conditions
as the Manager may prescribe in such notice, the compensation due the Manager
shall be reduced, and, if necessary, the Manager shall bear expenses with
respect to the Fund, to the extent required by such expense limitation.
If the Manager shall serve for less than the whole of a month, the
foregoing compensation shall be prorated.
4. ASSIGNMENT TERMINATES THIS CONTRACT; AMENDMENTS OF THIS CONTRACT.
This Contract shall automatically terminate, without the payment of any
penalty, in the event of its assignment; and this Contract shall not be amended
as to the Fund unless such amendment is approved at a meeting by the affirmative
vote of a majority of the outstanding shares of the Fund, and by the vote, cast
in person at a meeting called for the purpose of voting on such approval, of a
majority of the Trustees of the Trust who are not interested persons of the
Trust or of the Manager or of any Sub-Adviser of the Fund.
5. EFFECTIVE PERIOD AND TERMINATION OF THIS CONTRACT.
This Contract shall become effective upon its execution, and shall
remain in full force and effect as to each Fund continuously thereafter (unless
terminated automatically as set forth in Section 4) until terminated as follows:
(a) Either party hereto may at any time terminate this
Contract by not more than sixty days' written notice delivered or
mailed by registered mail, postage prepaid, to the other party, or
(b) If (i) the Trustees of the Trust or the shareholders by
the affirmative vote of a majority of the outstanding shares of the
Fund, and (ii) a majority of the Trustees of the Trust who are not
interested persons of the Trust or of the Manager, by vote cast in
person at a meeting called for the purpose of voting on such approval,
do not specifically approve at least annually the continuance of this
Contract, then this Contract shall automatically terminate at the close
of business on the second anniversary of its execution, or upon the
expiration of one year from the effective date of the last such
continuance, whichever is later; provided, however, that if the
continuance of this Contract is submitted to the shareholders of the
Fund for their approval and such shareholders fail to approve such
continuance of this Contract as provided herein, the Manager may
continue to serve hereunder in a manner consistent with the Investment
Company Act of 1940 and the Rules and Regulations thereunder.
Action by the Trust under (a) above may be taken either (i) by vote of
a majority of its Trustees, or (ii) by the affirmative vote of a majority of the
outstanding shares of the Fund.
Termination of this Contract pursuant to this Section 5 shall be
without the payment of any penalty.
6. CERTAIN DEFINITIONS.
For the purposes of this Contract, the "affirmative vote of a majority
of the outstanding shares" means the affirmative vote, at a duly called and held
meeting of shareholders, (a) of the holders of 67% or more of the shares of the
Fund present (in person or by proxy) and entitled to vote at such meeting, if
the holders of more than 50% of the outstanding shares of the Fund entitled to
vote at such meeting are present in person or by proxy, or (b) of the holders of
more than 50% of the outstanding shares of the Fund entitled to vote at such
meeting, whichever is less.
For the purposes of this Contract, the terms "affiliated person",
"control", "interested person" and "assignment" shall have their respective
meanings defined in the Investment Company Act of 1940 and the Rules and
Regulations thereunder, subject, however, to such exemptions as may be granted
by the Securities and Exchange Commission under said Act; the term "specifically
approve at least annually" shall be construed in a manner consistent with the
Investment Company Act of 1940 and the Rules and Regulations thereunder; and the
term "brokerage and research services" shall have the meaning given in the
Securities Exchange Act of 1934 and the Rules and Regulations thereunder.
7. NONLIABILITY OF MANAGER.
In the absence of willful misfeasance, bad faith or gross negligence on
the part of the Manager, or reckless disregard of its obligations and duties
hereunder, the Manager shall not be subject to any liability to the Trust, or to
any shareholder of the Trust, for any act or omission in the course of, or
connected with, rendering services hereunder.
8. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS.
A copy of the Amended and Restated Agreement and Declaration of Trust
of the Trust is on file with the Secretary of The Commonwealth of Massachusetts,
and notice is hereby given that this instrument is executed on behalf of the
Trustees of the Trust as Trustees and not individually and that the obligations
of this instrument are not binding upon any of the Trustees or shareholders
individually but are binding only upon the assets and property of the Fund.
9. THE WORDS "CCI," "PACIFIC INVESTMENT MANAGEMENT COMPANY," "PFAMCO,"
"PIMCO" OR "THOMSON".
The Manager owns the words "CCI," "Pacific Investment Management
Company," "PFAMCo," "PIMCO" and "Thomson" which may be used by the Trust only
with the consent of the Manager. The Manager consents to the use of the Trust of
the words "CCI," "Pacific Investment Management Company," "PFAMCo," "PIMCO" and
"Thomson," in such forms as the Manager shall in writing approve, but only on
condition and so long as (i) this Contract shall remain in full force and (ii)
the Trust shall fully perform, fulfill and comply with all provisions of this
Contract expressed herein to be performed, fulfilled or complied with by it. No
such name shall be used by the Trust at any time or in any place or for any
purposes or under any conditions except as in this section provided. The
foregoing authorization by the Manager to the Trust to use said name as part of
a business or name is not exclusive of the right of the Manager itself to use,
or to authorize others to use, the same; the Trust acknowledges and agrees that
as between the Manager and the Trust, the Manager has the exclusive right to so
authorize others to use the same; the Trust acknowledges and agrees that as
between the Manager and the Trust, the Manager has the exclusive right to so
use, or authorize others to use, said words and the Trust agrees to take such
action as may reasonably be requested by the Manager to give full effect to the
provisions of this section (including, without limitation, consenting to such
use of said words). Without limiting the generality of the foregoing, the Trust
agrees that, upon any termination of this Contract by either party or upon the
violation of any of its provisions by the Trust, the Trust will, at the request
of the Manager made within six months after the Manager has knowledge of such
termination or violation, use its best efforts to change the name of the Trust
so as to eliminate all reference, if any, to the words "CCI," "Pacific
Investment Management Company, " "PFAMCo," "PIMCO" and "Thomson" and will not
thereafter transact any business in a name containing the words "CCI," "Pacific
Investment Management Company," "PFAMCo," "PIMCO" or "Thomson" in any form or
combination whatsoever, or designate itself as the same entity as or successor
to an entity of such name, or otherwise use the words "CCI," "Pacific Investment
Management Company," "PFAMCo," "PIMCO" or "Thomson" or any other reference to
the Manager. Such covenants on the part of the Trust shall be binding upon it,
its trustees, officers, stockholders, creditors and all other persons claiming
under or through it.
IN WITNESS WHEREOF, PIMCO ADVISORS FUNDS and PIMCO ADVISORS L.P. have
each caused this instrument to be signed in duplicate in its behalf by its duly
authorized representative, all as of the day and year first above written.
PIMCO ADVISORS FUNDS
By: Xxxxxx X. Xxxxxxxxxxx
PIMCO ADVISORS L.P.
By: PIMCO Partners, G.P., a California
general partnership, General Partner
By: PIMCO Partners, LLC, a California
limited liability company, General Partner
By: Xxxxxxx Xxxxxxxx
Title: Chief Executive Officer
3007769.02
MANAGEMENT CONTRACT
[International Fund]
Management Contract executed as of November 16, 1994, between THOMSON
FUND GROUP, a Massachusetts business trust (the "Trust") on behalf of its
International Fund (the "Fund"), and PIMCO ADVISORS L.P., a Delaware limited
partnership (the "Manager").
WITNESSETH:
That in consideration of the mutual covenants herein contained, it is
agreed as follows:
1. SERVICES TO BE RENDERED BY MANAGER TO FUND.
(a) Subject always to the control of the Trustees of the Trust and to
such policies as the Trustees may determine, the Manager will, at its expense,
(i) furnish continuously an investment program for the Fund and will make
investment decisions on behalf of the Fund and place all orders for the purchase
and sale of portfolio securities and (ii) furnish office space and equipment,
provide bookkeeping and clerical services, including determination of net asset
value (but excluding shareholder accounting services) and pay all salaries, fees
and expenses of officers and Trustees of the Trust who are affiliated with the
Manager. In the performance of its duties, the Manager will comply with the
provisions of the Trust's Amended and Restated Agreement and Declaration of
Trust and By-laws, as in effect from time to time, and its stated investment
objectives, policies and restrictions.
-5-
(b) In the selection of brokers or dealers and the placing of orders
for the purchase and sale of portfolio investments for the Fund, the Manager
shall seek to obtain for the Fund the most favorable price and execution
available, except to the extent it may be permitted to pay higher brokerage
commissions for brokerage and research services as described below. In using its
best efforts to obtain for the Fund the most favorable price and execution
available, the Manager, bearing in mind the Fund's best interests at all times,
shall consider all factors it deems relevant, including by way of illustration,
price, the size of the transaction, the nature of the market for the security,
the amount of the commission, the timing of the transaction taking into account
market prices and trends, the reputation, experience and financial stability of
the broker and dealer involved and the quality of service rendered by the broker
or dealer in other transactions. Subject to such policies as the Trustees may
determine, the Manager shall not be deemed to have acted unlawfully or to have
breached any duty created by this Contract or otherwise solely by reason of its
having caused the Fund to pay a broker or dealer that provides brokerage and
research services to the Manager an amount of commission for effecting a
portfolio investment transaction in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction, if the
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
Manager's overall responsibilities with respect to the Trust and to other
clients of the Manager as to which the Manager exercises investment discretion.
The Trust hereby agrees with the Manager and with any Sub-Adviser selected by
the Manager as provided in Section 1(c) hereof that any entity or person
associated with the Manager which is a member of a national securities exchange
is authorized to effect any transaction on such exchange for the account of the
Trust and any Fund thereof which is permitted by Section 11(a) of the Securities
Exchange Act of 1934 and Rule 11a2-2(T) thereunder, and the Trust hereby
consents to the retention of compensation for such transactions in accordance
with Rule 11a2-2(T)(2)(iv).
(c) Subject to the provisions of the Amended and Restated Agreement and
Declaration of Trust of the Trust and the Investment Company Act of 1940 (the
"1940 Act"), the Manager, at its expense, may select and contract with
investment advisers (the "Sub-Advisers") for the Fund. So long as Blairlogie
Capital Management Partnership ("Blairlogie") serves as Sub-Adviser to the Fund
pursuant to the Sub-Adviser Agreement in substantially the form attached hereto
as Exhibit A (the "Sub-Adviser Agreement"), the obligation of the Manager under
this Contract with respect to the Fund shall be, subject in any event to the
control of the Trustees of the Trust, to determine and review with Blairlogie
investment policies of the Fund and Blairlogie shall have the obligation of
furnishing continuously an investment program and making investment decisions
for the Fund, adhering to applicable investment objectives, policies and
restrictions and placing all orders for the purchase and sale of portfolio
securities for the Fund. The Manager will compensate any Sub-Adviser of the Fund
for its services to the Fund. The Manager may terminate the services of the
Sub-Adviser at any time in its sole discretion, and shall at such time assume
the responsibilities of such Sub-Adviser unless and until a successor
Sub-Adviser is selected.
(d) The Manager shall not be obligated to pay any expenses of or for
the Trust not expressly assumed by the Manager pursuant to this Section 1.
2. OTHER AGREEMENTS, ETC.
It is understood that any of the shareholders, Trustees, officers and
employees of the Trust may be a shareholder, director, officer or employee of,
or be otherwise interested in, the Manager, and in any person controlled by or
under common control with the Manager, and that the Manager and any person
controlled by or under common control with the Manager may have an interest in
the Trust. It is also understood that the Manager and persons controlled by or
under common control with the Manager have and may have advisory, management
service, distribution or other contracts with other organizations and persons,
and may have other interests and businesses.
3. COMPENSATION TO BE PAID BY THE TRUST TO THE MANAGER.
The Trust will pay to the Manager as compensation for the Manager's
services rendered, for the facilities furnished and for the expenses borne by
the Manager pursuant to Section 1, a fee, computed and paid monthly at the rate
of 0.8% of the average daily net asset value of the Fund. The fee shall be paid
from the assets of the Fund. The average daily net asset value of the Fund shall
be determined by taking an average of all of the determinations of such net
asset value during such month at the close of business on each business day
during such month while this Contract is in effect. Such fee shall be payable
for each month within five (5) business days after the end of such month.
In the event that expenses of the Fund for any fiscal year should
exceed the expense limitation on investment company expenses imposed by any
statute or regulatory authority of any jurisdiction in which shares of the Trust
are qualified for offer and sale, the compensation due the Manager for such
fiscal year shall be reduced by the amount of such excess by a reduction or
refund thereof. In the event that the expenses with respect to the Fund could
exceed any expense limitation which the Manager may, by written notice to the
Trust, voluntarily declare to be effective subject to such terms and conditions
as the Manager may prescribe in such notice, the compensation due the Manager
shall be reduced, and, if necessary, the Manager shall bear expenses with
respect to the Fund, to the extent required by such expense limitation.
If the Manager shall serve for less than the whole of a month, the
foregoing compensation shall be prorated.
4. ASSIGNMENT TERMINATES THIS CONTRACT; AMENDMENTS OF THIS CONTRACT.
This Contract shall automatically terminate, without the payment of any
penalty, in the event of its assignment; and this Contract shall not be amended
unless such amendment is approved at a meeting by the affirmative vote of a
majority of the outstanding shares of the Fund, and by the vote, cast in person
at a meeting called for the purpose of voting on such approval, of a majority of
the Trustees of the Trust who are not interested persons of the Trust or of the
Manager or of any Sub-Adviser of the Fund.
5. EFFECTIVE PERIOD AND TERMINATION OF THIS CONTRACT.
This Contract shall become effective upon its execution, and shall
remain in full force and effect continuously thereafter (unless terminated
automatically as set forth in Section 4) until terminated as follows:
(a) Either party hereto may at any time terminate this
Contract by not more than sixty days' written notice delivered or
mailed by registered mail, postage prepaid, to the other party, or
(b) If (i) the Trustees of the Trust or the shareholders of
the affirmative vote of a majority of the outstanding shares of the
Fund, and (ii) a majority of the Trustees of the Trust who are not
interested persons of the Trust or of the Manager, by vote cast in
person at a meeting called for the purpose of voting on such approval,
do not specifically approve at least annually the continuance of this
Contract, then this Contract shall automatically terminate at the close
of business on the second anniversary of its execution, or upon the
expiration of one year from the effective date of the last such
continuance, whichever is later; provided, however, that if the
continuance of this Contract is submitted to the shareholders of the
Fund for their approval and such shareholders fail to approve such
continuance of this Contract as provided herein, the Manager may
continue to serve hereunder in a manner consistent with the 1940 Act
and the rules and regulations thereunder.
Action by the Trust under (a) above may be taken either (i) by vote of
a majority of its Trustees, or (ii) by the affirmative vote of a majority of the
outstanding shares of the Fund.
Termination of this Contract pursuant to this Section 5 shall be
without the payment of any penalty.
6. CERTAIN DEFINITIONS.
For the purposes of this Contract, the "affirmative vote of a majority
of the outstanding shares" means the affirmative vote, at a duly called and held
meeting of shareholders, (a) of the holders of 67% or more of the shares of the
Fund present (in person or by proxy) and entitled to vote at such meeting, if
the holders of more than 50% of the outstanding shares of the Fund entitled to
vote at such meeting are present in person or by proxy, or (b) of the holders of
more than 50% of the outstanding shares of the Fund entitled to vote at such
meeting, whichever is less.
For the purposes of this Contract, the terms "affiliated person",
"control", "interested person" and "assignment" shall have their respective
meanings defined in the 1940 Act and the rules and regulations thereunder,
subject, however to such exemptions as may be granted by the Securities and
Exchange Commission under said Act; the term "specifically approve at least
annually" shall be construed in a manner consistent with the 1940 Act and the
rules and regulations thereunder; and the term "brokerage and research services"
shall have the meaning given in the Securities Exchange Act of 1934 and the
rules and regulations thereunder.
7. NONLIABILITY OF MANAGER.
In the absence of willful misfeasance, bad faith or gross negligence on
the part of the Manager, or reckless disregard of its obligations and duties
hereunder, the Manager shall not be subject to any liability to the Trust, or to
any shareholder of the Trust, for any act or omission in the course of, or
connected with, rendering services hereunder.
8. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS.
A copy of the Amended and Restated Agreement and Declaration of Trust
of the Trust is on file with the Secretary of The Commonwealth of Massachusetts,
and notice is hereby given that this instrument is executed on behalf of the
Trustees of the Trust as Trustees and not individually and that the obligations
of this instrument are not binding upon any of the Trustees or shareholders
individually but are binding only upon the assets and property of the Fund.
9. THE WORDS "CCI," "PACIFIC INVESTMENT MANAGEMENT COMPANY," "PFAMCO,"
"PIMCO" OR "THOMSON".
The Manager owns the words "CCI," "Pacific Investment Management
Company," "PFAMCo," "PIMCO" and "Thomson" which may be used by the Trust only
with the consent of the Manager. The Manager consents to the use of the Trust of
the words "CCI," "Pacific Investment Management Company," "PFAMCo," "PIMCO" and
"Thomson," in such forms as the Manager shall in writing approve, but only on
condition and so long as (i) this Contract shall remain in full force and (ii)
the Trust shall fully perform, fulfill and comply with all provisions of this
Contract expressed herein to be performed, fulfilled or complied with by it. No
such name shall be used by the Trust at any time or in any place or for any
purposes or under any conditions except as in this section provided. The
foregoing authorization by the Manager to the Trust to use said name as part of
a business or name is not exclusive of the right of the Manager itself to use,
or to authorize others to use, the same; the Trust acknowledges and agrees that
as between the Manager and the Trust, the Manager has the exclusive right to so
authorize others to use the same; the Trust acknowledges and agrees that as
between the Manager and the Trust, the Manager has the exclusive right to so
use, or authorize others to use, said words and the Trust agrees to take such
action as may reasonably be requested by the Manager to give full effect to the
provisions of this section (including, without limitation, consenting to such
use of said words). Without limiting the generality of the foregoing, the Trust
agrees that, upon any termination of this Contract by either party or upon the
violation of any of its provisions by the Trust, the Trust will, at the request
of the Manager made within six months after the Manager has knowledge of such
termination or violation, use its best efforts to change the name of the Trust
so as to eliminate all reference, if any, to the words "CCI," "Pacific
Investment Management Company, " "PFAMCo," "PIMCO" and "Thomson" and will not
thereafter transact any business in a name containing the words "CCI," "Pacific
Investment Management Company," "PFAMCo," "PIMCO" or "Thomson" in any form or
combination whatsoever, or designate itself as the same entity as or successor
to an entity of such name, or otherwise use the words "CCI," "Pacific Investment
Management Company," "PFAMCo," "PIMCO" or "Thomson" or any other reference to
the Manager. Such covenants on the part of the Trust shall be binding upon it,
its trustees, officers, stockholders, creditors and all other persons claiming
under or through it.
IN WITNESS WHEREOF, THOMSON FUND GROUP and PIMCO ADVISORS L.P. have
each caused this instrument to be signed on duplicate in its behalf by its duly
authorized representative, all as of the day and year first above written.
THOMSON FUND GROUP
By: Xxxxxx X. Xxxxxxxxxxx
PIMCO ADVISORS L.P.
By: PIMCO Partners, G.P., a California
general partnership, General Partner
By: PIMCO Partners, LLC, a California
limited liability company, General Partner
By: Xxxxxxx X. Xxxxxxxx
MANAG-PR
MANAGEMENT CONTRACT
[Precious Metals and
Natural Resources Fund]
Management Contract executed as of November 16, 1994, between THOMSON
FUND GROUP, a Massachusetts business trust (the "Trust") on behalf of its
Precious Metals and Natural Resources Fund (the "Fund"), and PIMCO ADVISORS
L.P., a Delaware limited partnership (the "Manager").
WITNESSETH:
That in consideration of the mutual covenants herein contained, it is
agreed as follows:
1. SERVICES TO BE RENDERED BY MANAGER TO FUND.
(a) Subject always to the control of the Trustees of the Trust and to
such policies as the Trustees may determine, the Manager will, at its expense,
(i) furnish continuously an investment program for the Fund and will make
investment decisions on behalf of the Fund and place all orders for the purchase
and sale of portfolio securities and (ii) furnish office space and equipment,
provide bookkeeping and clerical services, including determination of net asset
value (but excluding shareholder accounting services) and pay all salaries, fees
and expenses of officers and Trustees of the Trust who are affiliated with the
Manager. In the performance of its duties, the Manager will comply with the
provisions of the Trust's Amended and Restated Agreement and Declaration of
Trust and By-laws, as in effect from time to time, and its stated investment
objectives, policies and restrictions.
MANAG-PR
-8-
(b) In the selection of brokers or dealers and the placing of orders
for the purchase and sale of portfolio investments for the Fund, the Manager
shall seek to obtain for the Fund the most favorable price and execution
available, except to the extent it may be permitted to pay higher brokerage
commissions for brokerage and research services as described below. In using its
best efforts to obtain for the Fund the most favorable price and execution
available, the Manager, bearing in mind the Fund's best interests at all times,
shall consider all factors it deems relevant, including by way of illustration,
price, the size of the transaction, the nature of the market for the security,
the amount of the commission, the timing of the transaction taking into account
market prices and trends, the reputation, experience and financial stability of
the broker or dealer involved and the quality of service rendered by the broker
or dealer in other transactions. Subject to such policies as the Trustees may
determine, the Manager shall not be deemed to have acted unlawfully or to have
breached any duty created by this Contract or otherwise solely by reason of its
having caused the Fund to pay a broker or dealer that provides brokerage and
research services to the Manager an amount of commission for effecting a
portfolio investment transaction in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction, if the
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
Manager's overall responsibilities with respect to the Trust and to other
clients of the Manager as to which the Manager exercises investment discretion.
The Trust hereby agrees with the Manager and with any Sub-Adviser selected by
the Manager as provided in Section 1(c) hereof that any entity or person
associated with the Manager which is a member of a national securities exchange
is authorized to effect any transaction on such exchange for the account of the
Trust and any Fund thereof which is permitted by Section 11(a) of the Securities
Exchange Act of 1934 and Rule 11a2-2(T) thereunder, and the Trust hereby
consents to the retention of compensation for such transactions in accordance
with Rule 11a2-2(T)(2)(iv).
(c) Subject to the provisions of the Amended and Restated Agreement and
Declaration of Trust of the Trust and the Investment Company Act of 1940 (the
"1940 Act"), the Manager, at its expense, may select and contract with
investment advisers (the "Sub-Advisers") for the Fund. So long as Xxx Xxx
Associates Corporation ("Xxx Xxx") serves as Sub-Adviser to the Fund pursuant to
a Sub-Adviser Agreement in substantially the form attached hereto as Exhibit A
(the "Sub-Adviser Agreement"), the obligation of the Manager under this Contract
with respect to the Fund shall be, subject in any event to the control of the
Trustees of the Trust, to determine and review with Xxx Xxx investment policies
of the Fund and Xxx Xxx shall have the obligation of furnishing continuously an
investment program and making investment decisions for the Fund, adhering to
applicable investment objectives, policies and restrictions and placing all
orders for the purchase and sale of portfolio securities for the Fund. The
Manager will compensate any Sub-Adviser of the Fund for its services to the
Fund. The Manager may terminate the services of the Sub-Adviser at any time in
its sole discretion, and shall at such time assume the responsibilities of such
Sub-Adviser unless and until a successor Sub-Adviser is selected.
(d) The Manager shall not be obligated to pay any expenses of or for
the Trust not expressly assumed by the Manager pursuant to this Section 1.
2. OTHER AGREEMENTS, ETC.
It is understood that any of the shareholders, Trustees, officers and
employees of the Trust may be a shareholder, director, officer or employee of,
or be otherwise interested in, the Manager, and in any person controlled by or
under common control with the Manager, and that the Manager and any person
controlled by or under common control with the Manager may have an interest in
the Trust. It is also understood that the Manager and persons controlled by or
under common control with the Manager have and may have advisory, management
service, distribution or other contracts with other organizations and persons,
and may have other interests and businesses.
3. COMPENSATION TO BE PAID BY THE TRUST TO THE MANAGER.
The Trust will pay to the Manager as compensation for the Manager's
services rendered, for the facilities furnished and for the expenses borne by
the Manager pursuant to Section 1, a fee, computed and paid monthly at the rate
of 0.75% of the average daily net asset value of the Fund up to $200 million and
0.70% of such net asset value in excess of $200 million. The fee shall be paid
from the assets of the Fund. The average daily net asset value of the Fund shall
be determined by taking an average of all of the determinations of such net
asset value during such month at the close of business on each business day
during such month while this Contract is in effect. Such fee shall be payable
for each month within five (5) business days after the end of such month.
In the event that expenses of the Fund for any fiscal year should
exceed the expense limitation on investment company expenses imposed by any
statute or regulatory authority of any jurisdiction in which shares of the Trust
are qualified for offer and sale, the compensation due the Manager for such
fiscal year shall be reduced by, or the Manager shall refund to the Fund, an
amount equal to the excess of expenses over the relevant limitation. In the
event that the expenses with respect to the Fund could exceed any expense
limitation which the Manager may, by written notice to the Trust, voluntarily
declare to be effective subject to such terms and conditions as the Manager may
prescribe in such notice, the compensation due the Manager shall be reduced,
and, if necessary, the Manager shall bear expenses with respect to the Fund, to
the extent required by such expense limitation.
If the Manager shall serve for less than the whole of a month, the
foregoing compensation shall be prorated.
4. ASSIGNMENT TERMINATES THIS CONTRACT; AMENDMENTS OF THIS CONTRACT.
This Contract shall automatically terminate, without the payment of any
penalty, in the event of its assignment; and this Contract shall not be amended
unless such amendment is approved at a meeting by the affirmative vote of a
majority of the outstanding shares of the Fund, and by the vote, cast in person
at a meeting called for the purpose of voting on such approval, of a majority of
the Trustees of the Trust who are not interested persons of the Trust or of the
Manager or of any Sub-Adviser of the Fund.
5. EFFECTIVE PERIOD AND TERMINATION OF THIS CONTRACT.
This Contract shall become effective upon its execution, and shall
remain in full force and effect continuously thereafter (unless terminated
automatically as set forth in Section 4) until terminated as follows:
(a) Either party hereto may at any time terminate this
Contract by not more than sixty days' written notice delivered or
mailed by registered mail, postage prepaid, to the other party, or
(b) If (i) the Trustees of the Trust or the shareholders by
the affirmative vote of a majority of the outstanding shares of the
Fund, and (ii) a majority of the Trustees of the Trust who are not
interested persons of the Trust or of the Manager, by vote cast in
person at a meeting called for the purpose of voting on such approval,
do not specifically approve at least annually the continuance of this
Contract, then this Contract shall automatically terminate at the close
of business on the second anniversary of its execution, or upon the
expiration of one year from the effective date of the last such
continuance, whichever is later; provided, however, that if the
continuance of this Contract is submitted to the shareholders of the
Fund for their approval and such shareholders fail to approve such
continuance of this Contract as provided herein, the Manager may
continue to serve hereunder in a manner consistent with the 1940 Act
and the rules and regulations thereunder.
Action by the Trust under (a) above may be taken either (i) by vote of
a majority of its Trustees, or (ii) by the affirmative vote of a majority of the
outstanding shares of the Fund.
Termination of this Contract pursuant to this Section 5 shall be
without the payment of any penalty.
6. CERTAIN DEFINITIONS.
For the purposes of this Contract, the "affirmative vote of a majority
of the outstanding shares" means the affirmative vote, at a duly called and held
meeting of shareholders, (a) of the holders of 67% or more of the shares of the
Fund present (in person or by proxy) and entitled to vote at such meeting, if
the holders of more than 50% of the outstanding shares of the Fund entitled to
vote at such meeting are present in person or by proxy, or (b) of the holders of
more than 50% of the outstanding shares of the Fund entitled to vote at such
meeting, whichever is less.
For the purposes of this Contract, the terms "affiliated person",
"control", "interested person" and "assignment" shall have their respective
meanings defined in the 1940 Act and the rules and regulations thereunder,
subject, however, to such exemptions as may be granted by the Securities and
Exchange Commission under said Act; the term "specifically approve at least
annually" shall be construed in a manner consistent with the 1940 Act and the
rules and regulations thereunder; and the term "brokerage and research services"
shall have the meaning given in the Securities Exchange Act of 1934 and the
rules and regulations thereunder.
7. NONLIABILITY OF MANAGER.
In the absence of willful misfeasance, bad faith or gross negligence on
the part of the Manager, or reckless disregard of its obligations and duties
hereunder, the Manager shall not be subject to any liability to the Trust, or to
any shareholder of the Trust, for any act or omission in the course of, or
connected with, rendering services hereunder.
8. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS.
A copy of the Amended and Restated Agreement and Declaration of Trust
of the Trust is on file with the Secretary of The Commonwealth of Massachusetts,
and notice is hereby given that this instrument is executed on behalf of the
Trustees of the Trust as Trustees and not individually and that the obligations
of this instrument are not binding upon any of the Trustees or shareholders
individually but are binding only upon the assets and property of the Fund.
9. THE WORDS "CCI," "PACIFIC INVESTMENT MANAGEMENT COMPANY," "PFAMCO,"
"PIMCO" OR "THOMSON".
The Manager owns the words "CCI," "Pacific Investment Management
Company," "PFAMCo," "PIMCO" and "Thomson" which may be used by the Trust only
with the consent of the Manager. The Manager consents to the use of the Trust of
the words "CCI," "Pacific Investment Management Company," "PFAMCo," "PIMCO" and
"Thomson," in such forms as the Manager shall in writing approve, but only on
condition and so long as (i) this Contract shall remain in full force and (ii)
the Trust shall fully perform, fulfill and comply with all provisions of this
Contract expressed herein to be performed, fulfilled or complied with by it. No
such name shall be used by the Trust at any time or in any place or for any
purposes or under any conditions except as in this section provided. The
foregoing authorization by the Manager to the Trust to use said name as part of
a business or name is not exclusive of the right of the Manager itself to use,
or to authorize others to use, the same; the Trust acknowledges and agrees that
as between the Manager and the Trust, the Manager has the exclusive right to so
authorize others to use the same; the Trust acknowledges and agrees that as
between the Manager and the Trust, the Manager has the exclusive right to so
use, or authorize others to use, said words and the Trust agrees to take such
action as may reasonably be requested by the Manager to give full effect to the
provisions of this section (including, without limitation, consenting to such
use of said words). Without limiting the generality of the foregoing, the Trust
agrees that, upon any termination of this Contract by either party or upon the
violation of any of its provisions by the Trust, the Trust will, at the request
of the Manager made within six months after the Manager has knowledge of such
termination or violation, use its best efforts to change the name of the Trust
so as to eliminate all reference, if any, to the words "CCI," "Pacific
Investment Management Company, " "PFAMCo," "PIMCO" and "Thomson" and will not
thereafter transact any business in a name containing the words "CCI," "Pacific
Investment Management Company," "PFAMCo," "PIMCO" or "Thomson" in any form or
combination whatsoever, or designate itself as the same entity as or successor
to an entity of such name, or otherwise use the words "CCI," "Pacific Investment
Management Company," "PFAMCo," "PIMCO" or "Thomson" or any other reference to
the Manager. Such covenants on the part of the Trust shall be binding upon it,
its trustees, officers, stockholders, creditors and all other persons claiming
under or through it.
IN WITNESS WHEREOF, THOMSON FUND GROUP and PIMCO ADVISORS L.P. have
each caused this instrument to be signed in duplicate in its behalf by its duly
authorized representative, all as of the day and year first above written.
THOMSON FUND GROUP
By: Xxxxxx X. Xxxxxxxxxxx
PIMCO ADVISORS L.P.
By: PIMCO Partners, G.P., a California
general partnership, General Partner
By: PIMCO Partners, LLC, a California
limited liability company, General Partner
By: Xxxxxxx X. Xxxxxxxx
MANAGEMENT CONTRACT
Global Income Fund
Management Contract executed as of September 28, 1995 between PIMCO
ADVISORS FUNDS, a Massachusetts business trust (the "Trust") on behalf of its
Global Income Fund (the "Fund"), and PIMCO ADVISORS L.P., a Delaware limited
partnership (the "Manager").
WITNESSETH:
That in consideration of the mutual covenants herein contained, it is
agreed as follows:
1. SERVICES TO BE RENDERED BY MANAGER TO FUND.
(a) Subject always to the control of the Trustees of the Trust
and to such policies as the Trustees may determine, the
Manager will, at its expense, (i) furnish continuously an
investment program for the Fund and will make investment
decisions on behalf of the Fund and place all orders for the
purchase and sale of portfolio securities and (ii) furnish
office space and equipment, provide bookkeeping and clerical
services (excluding determination of net asset value and
shareholder accounting services) and pay all salaries, fees
and expenses of officers and Trustees of the Trust who are
affiliated with the Manager. In the performance of its
duties, the Manager will comply with the provisions of the
Amended and Restated Agreement and Declaration of Trust and
By-laws of the Trust and its stated investment objectives,
policies and restrictions.
(b) In the selection of brokers or dealers and the placing of
orders for the purchase and sale of portfolio investments for
the Fund, the Manager shall seek to obtain for the Fund the
most favorable price and execution available, except to the
extent it may be permitted to pay higher brokerage
commissions for brokerage and research services as described
below. In using its best efforts to obtain for the Fund the
most favorable price and execution available, the Manager,
bearing in mind the Fund's best interests at all times, shall
consider all factors it deems relevant, including by way of
illustration, price, the size of the transaction, the nature
of the market for the security, the amount of the commission,
the timing of the transaction taking into account market
prices and trends, the reputation, experience and financial
stability of the broker or dealer involved and the quality of
service rendered by the broker or dealer in other
transactions. Subject to such policies as the Trustees may
determine, the Manager shall not be deemed to have acted
-1-
unlawfully or to have breached any duty created by this
Contract or otherwise solely by reason of its having caused
the Fund to pay a broker or dealer that provides brokerage
and research services to the Manager an amount of commission
for effecting a portfolio investment transaction in excess of
the amount of commission another broker or dealer would have
charged for effecting that transaction, if the 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
Manager's overall responsibilities with respect to the Trust
and to other clients of the Manager as to which the Manager
exercises investment discretion. The Trust hereby agrees with
the Manager and with any Sub-Adviser selected by the Manager
as provided in Section 1(c) hereof that any entity or person
associated with the Manager which is a member of a national
securities exchange is authorized to effect any transaction
on such exchange for the account of the Trust and the Fund
which is permitted by Section 11(a) of the Securities
Exchange Act of 1934.
(c) Subject to the provisions of the Agreement and Declaration of
Trust of the Trust and the Investment Company Act of 1940
(the "1940 Act"), the Manager, at its expense, may select and
contract with investment advisers (the "Sub-Advisers") for
the Fund. So long as Pacific Investment Management Company
serves as Sub-Adviser to the Fund pursuant to a Sub-Adviser
Agreement in substantially the form attached hereto as
Exhibit A (the "Sub-Adviser Agreement"), the obligation of
the Manager under this Contract with respect to the Fund
shall be subject in any event to the control of the Trustees
of the Trust, to determine and review with investment
policies of the Fund and Pacific Investment Management
Company shall have the obligation of furnishing continuously
an investment program and making investment decisions for the
Fund, adhering to applicable investment objectives, policies
and restrictions and placing all orders for the purchase and
sale of portfolio securities for the Fund. The Manager will
compensate any Sub-Adviser of the Fund for its services to
the Fund. The Manager may terminate the services of the
Sub-Adviser at any time in its sole discretion, and shall at
such time assume the responsibilities of such Sub-Adviser
unless and until a successor Sub-Adviser is selected.
(d) The Manager shall not be obligated to pay any expenses of or
for the Trust not expressly assumed by the Manager pursuant
to this Section 1 other than as provided in Section 3.
-2-
2. OTHER AGREEMENTS, ETC.
It is understood that any of the shareholders, Trustees, officers and
employees of the Trust may be a shareholder, director, officer or
employee of, or be otherwise interested in, the Manager, and in any
person controlled by or under common control with the Manager, and that
the Manager and any person controlled by or under common control with
the Manager may have an interest in the Trust. It is also understood
that the Manager and persons controlled by or under common control with
the Manager have and may have advisory, management service,
distribution or other contracts with other organizations and persons,
and may have other interests and businesses.
3. COMPENSATION TO BE PAID BY THE TRUST TO THE MANAGER.
The Trust will pay to the Manager as compensation for the Manager's
services rendered, for the facilities furnished and for the expenses
borne by the Manager pursuant to Section 1, a fee, computed and paid
monthly at the annual rate of 0.70% of the average daily net asset
value of the Fund up to $250 million and 0.60% of such net asset value
in excess of $250 million. The average daily net asset value of the
Fund shall be determined by taking an average of all of the
determinations of such net asset value during such month at the close
of business on each business day during such month while this Contract
is in effect. Such fee shall be payable for each month within five (5)
business days after the end of such month.
In the event that expenses of the Fund for any fiscal year should
exceed the expense limitation on investment company expenses imposed by
any statute or regulatory authority of any jurisdiction in which shares
of the Trust are qualified for offer and sale, the compensation due the
Manager for such fiscal year shall be reduced by the amount of such
excess by a reduction or refund thereof. In the event that the expenses
with respect to the Fund could exceed any expense limitation which the
Manager may, by written notice to the Trust, voluntarily declare to be
effective subject to such terms and conditions as the Manager may
prescribe in such notice, the compensation due the Manager shall be
reduced, and, if necessary, the Manager shall bear expenses with
respect to the Fund, to the extent required by such expense limitation.
If the Manager shall serve for less than the whole of a month, the
foregoing compensation shall be prorated.
-3-
4. ASSIGNMENT TERMINATES THIS CONTRACT; AMENDMENTS OF THIS
CONTRACT.
This Contract shall automatically terminate, without the payment of any
penalty, in the event of its assignment; and this Contract shall not be
amended as to the Fund unless such amendment is approved at a meeting
by the affirmative vote of a majority of the outstanding shares of the
Fund, and by the vote, cast in person at a meeting called for the
purpose of voting on such approval, of a majority of the Trustees of
the Trust who are not interested persons of the Trust or of the Manager
or of any Sub-Adviser of the Fund.
5. EFFECTIVE PERIOD AND TERMINATION OF THIS CONTRACT.
This Contract shall become effective upon its execution, and shall
remain in full force and effect as to each Fund continuously thereafter
(unless terminated automatically as set forth in Section 4) until
terminated as follows:
(a) Either party hereto may at any time terminate this Contract
by not more than sixty days' written notice delivered or
mailed by registered mail, postage prepaid, to the other
party, or
(b) If (i) the Trustees of the Trust or the shareholders by the
affirmative vote of a majority of the outstanding shares of
the Fund, and (ii) a majority of the Trustees of the Trust
who are not interested persons of the Trust or of the
Manager, by vote cast in person at a meeting called for the
purpose of voting on such approval, do not specifically
approve at least annually the continuance of this Contract,
then this Contract shall automatically terminate at the close
of business on the second anniversary of its execution, or
upon the expiration of one year from the effective date of
the last such continuance, whichever is later; provided,
however, that if the continuance of this Contract is
submitted to the shareholders of the Fund for their approval
and such shareholders fail to approve such continuance of
this Contract as provided herein, the Manager may continue to
serve hereunder in a manner consistent with the Investment
Company Act of 1940 and the Rules and Regulations thereunder.
Action by the Trust under (a) above may be taken either (i)
by vote of a majority of its Trustees, or (ii) by the
affirmative vote of a majority of the outstanding shares of
the Fund.
-4-
Termination of this Contract pursuant to this Section 5 shall
be without the payment of any penalty.
6. CERTAIN DEFINITIONS.
For the purposes of this Contract, the "affirmative vote of a majority
of the outstanding shares" means the affirmative vote, at a duly called
and held meeting of shareholders, (a) of the holders of 67% or more of
the shares of the Fund present (in person or by proxy) and entitled to
vote at such meeting, if the holders of more than 50% of the
outstanding shares of the Fund entitled to vote at such meeting are
present in person or by proxy, or (b) of the holders of more than 50%
of the outstanding shares of the Fund entitled to vote at such meeting,
whichever is less.
For the purposes of this Contract, the terms "affiliated person",
"control", "interested person" and "assignment" shall have their
respective meanings defined in the Investment Company Act of 1940 and
the Rules and Regulations thereunder, subject, however, to such
exemptions as may be granted by the Securities and Exchange Commission
under said Act; the term "specifically approve at least annually" shall
be construed in a manner consistent with the Investment Company Act of
1940 and the Rules and Regulations thereunder; and the term "brokerage
and research services" shall have the meaning given in the Securities
Exchange Act of 1934 and the Rules and Regulations thereunder.
7. NONLIABILITY OF MANAGER.
In the absence of willful misfeasance, bad faith or gross negligence on
the part of the Manager, or reckless disregard of its obligations and
duties hereunder, the Manager shall not be subject to any liability to
the Trust, or to any shareholder of the Trust, for any act or omission
in the course of, or connected with, rendering services hereunder.
8. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS.
A copy of the Amended and Restated Agreement and Declaration of Trust
of the Trust is on file with the Secretary of The Commonwealth of
Massachusetts, and notice is hereby given that this instrument is
executed on behalf of the Trustees of the Trust as Trustees and not
-5-
individually and that the obligations of this instrument are not
binding upon any of the Trustees or shareholders individually but are
binding only upon the assets and property of the Fund.
9. THE WORDS "CCI," "PACIFIC INVESTMENT MANAGEMENT COMPANY,"
"PFAMCO," "PIMCO," "NFJ," "CADENCE" OR "THOMSON".
The Manager owns the words "CCI," "Pacific Investment Management
Company," "PFAMCo," "PIMCO," "PIMCO Advisors," "NFJ," "Cadence" and
"Thomson" which may be used by the Trust only with the consent of the
Manager. The Manager consents to the use of the Trust of the words
"CCI," "Pacific Investment Management Company," "PFAMCo, "PIMCO,"
"NFJ," "Cadence" and "Thomson," in such forms as the Manager shall in
writing approve, but only on condition and so long as (i) this Contract
shall remain in full force and (ii) the Trust shall fully perform,
fulfill and comply with all provisions of this Contract expressed
herein to be performed, fulfilled or complied with by it. No such name
shall be used by the Trust at any time or in any place or for any
purposes or under any conditions except as in this section provided.
The foregoing authorization by the Manager to the Trust to use said
name as part of a business or name is not exclusive of the right of the
Manager itself to use, or to authorize others to use, the same; the
Trust acknowledges and agrees that as between the Manager and the
Trust, the Manager has the exclusive right to so authorize others to
use the same; the Trust acknowledges and agrees that as between the
Manager and the Trust, the Manager has the exclusive right to so use,
or authorize others to use, said words and the Trust agrees to take
such action as may reasonably be requested by the Manager to give full
effect to the provisions of this section (including, without
limitation, consenting to such use of said words). Without limiting the
generality of the foregoing, the Trust agrees that, upon any
termination of this Contract by either party or upon the violation of
any of its provisions by the Trust, the Trust will, at the request of
the Manager made within six months after the Manager has knowledge of
such termination or violation, use its best efforts to change the name
of the Trust so as to eliminate all reference, if any, to the words
"CCI," "Pacific Investment Management Company, " "PFAMCo," "PIMCO,"
"NFJ," "Cadence" and "Thomson" and will not thereafter transact any
business in a name containing the words "CCI," "Pacific Investment
Management Company," "PFAMCo," "PIMCO," "PIMCO Advisors," "NFJ,"
"Cadence" or "Thomson" in any form or combination whatsoever, or
designate itself as the same entity as or successor to an entity of
such name, or otherwise use the words "CCI," "Pacific Investment
Management Company," "PFAMCo," "PIMCO," "PIMCO Advisors," "NFJ,"
"Cadence" or "Thomson" or any other reference to the
-6-
Manager. Such covenants on the part of the Trust shall be binding upon
it, its trustees, officers, stockholders, creditors and all other
persons claiming under or through it.
IN WITNESS WHEREOF, PIMCO ADVISORS FUNDS and PIMCO ADVISORS L.P. have
each caused this instrument to be signed in duplicate in its behalf by its duly
authorized representative, all as of the day and year first above written.
PIMCO ADVISORS FUNDS
By: Xxxxxx X. Xxxxxxxxxxx
Title: President
PIMCO ADVISORS L.P.
By: Xxxxxxx Xxxxxxxx
Title: Chairman
-7-
3007647.02
MANAGEMENT CONTRACT
[Income Fund]
Management Contract executed as of November 16, 1994 between THOMSON
FUND GROUP, a Massachusetts business trust (the "Trust") on behalf of its
Thomson Income Fund (the "Fund"), and PIMCO ADVISORS L.P., a Delaware limited
partnership (the "Manager").
WITNESSETH:
That in consideration of the mutual covenants herein contained, it is
agreed as follows:
1. SERVICES TO BE RENDERED BY MANAGER TO FUND.
(a) Subject always to the control of the Trustees of the Trust and to
such policies as the Trustees may determine, the Manager will, at its expense,
(i) furnish continuously an investment program for the Fund and will make
investment decisions on behalf of the Fund and place all orders for the purchase
and sale of portfolio securities and (ii) furnish office space and equipment,
provide bookkeeping and clerical services (excluding determination of net asset
value and shareholder accounting services) and pay all salaries, fees and
expenses of officers and Trustees of the Trust who are affiliated with the
Manager. In the performance of its duties, the Manager will comply with the
provisions of the Amended and Restated Agreement and Declaration of Trust and
By-laws of the Trust and its stated investment objectives, policies and
restrictions.
3007647.02
-7-
(b) In the selection of brokers or dealers and the placing of orders
for the purchase and sale of portfolio investments for the Fund, the Manager
shall seek to obtain for the Fund the most favorable price and execution
available, except to the extent it may be permitted to pay higher brokerage
commissions for brokerage and research services as described below. In using its
best efforts to obtain for the Fund the most favorable price and execution
available, the Manager, bearing in mind the Fund's best interests at all times,
shall consider all factors it deems relevant, including by way of illustration,
price, the size of the transaction, the nature of the market for the security,
the amount of the commission, the timing of the transaction taking into account
market prices and trends, the reputation, experience and financial stability of
the broker or dealer involved and the quality of service rendered by the broker
or dealer in other transactions. Subject to such policies as the Trustees may
determine, the Manager shall not be deemed to have acted unlawfully or to have
breached any duty created by this Contract or otherwise solely by reason of its
having caused the Fund to pay a broker or dealer that provides brokerage and
research services to the Manager an amount of commission for effecting a
portfolio investment transaction in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction, if the
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
Manager's overall responsibilities with respect to the Trust and to other
clients of the Manager as to which the Manager exercises investment discretion.
The Trust hereby agrees with the Manager and with any Sub-Adviser selected by
the Manager as provided in Section 1(c) hereof that any entity or person
associated with the Manager which is a member of a national securities exchange
is authorized to effect any transaction on such exchange for the account of the
Trust and the Fund which is permitted by Section 11(a) of the Securities
Exchange Act of 1934 and Rule 11a2-2(T) thereunder, and the Trust hereby
consents to the retention of compensation for such transactions in accordance
with Rule 11a2-2(T)(2)(iv).
(c) Subject to the provisions of the Agreement and Declaration of Trust
of the Trust and the Investment Company Act of 1940 (the "1940 Act"), the
Manager, at its expense, may select and contract with investment advisers (the
"Sub-Advisers") for the Fund. So long as Pacific Investment Management Company
serves as Sub-Adviser to the Fund pursuant to a Sub-Adviser Agreement in
substantially the form attached hereto as Exhibit A (the "Sub-Adviser
Agreement"), the obligation of the Manager under this Contract with respect to
the Fund shall be subject in any event to the control of the Trustees of the
Trust, to determine and review with Pacific Investment Management Company
investment policies of the Fund and Pacific Investment Management Company shall
have the obligation of furnishing continuously an investment program and making
investment decisions for the Fund, adhering to applicable investment objectives,
policies and restrictions and placing all orders for the purchase and sale of
portfolio securities for the Fund. The Manager will compensate any Sub-Adviser
of the Fund for its services to the Fund. The Manager may terminate the services
of the Sub-Adviser at any time in its sole discretion, and shall at such time
assume the responsibilities of such Sub-Adviser unless and until a successor
Sub-Adviser is selected.
(d) The Manager shall not be obligated to pay any expenses of or for
the Trust not expressly assumed by the Manager pursuant to this Section 1 other
than as provided in Section 3.
2. OTHER AGREEMENTS, ETC.
It is understood that any of the shareholders, Trustees, officers and
employees of the Trust may be a shareholder, director, officer or employee of,
or be otherwise interested in, the Manager, and in any person controlled by or
under common control with the Manager, and that the Manager and any person
controlled by or under common control with the Manager may have an interest in
the Trust. It is also understood that the Manager and persons controlled by or
under common control with the Manager have and may have advisory, management
service, distribution or other contracts with other organizations and persons,
and may have other interests and businesses.
3. COMPENSATION TO BE PAID BY THE TRUST TO THE MANAGER.
The Trust will pay to the Manager as compensation for the Manager's
services rendered, for the facilities furnished and for the expenses borne by
the Manager pursuant to Section 1, a fee, computed and paid monthly at the
annual rate of 0.60% of the average net asset value of the Fund up to $250
million and 0.50% of such net asset value in excess of $250 million. The average
daily net asset value of the Fund shall be determined by taking an average of
all of the determinations of such net asset value during such month at the close
of business on each business day during such month while this Contract is in
effect. Such fee shall be payable for each month within five (5) business days
after the end of such month.
In the event that expenses of the Fund for any fiscal year should
exceed the expense limitation on investment company expenses imposed by any
statute or regulatory authority of any jurisdiction in which shares of the Trust
are qualified for offer and sale, the compensation due the Manager for such
fiscal year shall be reduced by the amount of such excess by a reduction or
refund thereof. In the event that the expenses with respect to the Fund could
exceed any expense limitation which the Manager may, by written notice to the
Trust, voluntarily declare to be effective subject to such terms and conditions
as the Manager may prescribe in such notice, the compensation due the Manager
shall be reduced, and, if necessary, the Manager shall bear expenses with
respect to the Fund, to the extent required by such expense limitation.
If the Manager shall serve for less than the whole of a month, the
foregoing compensation shall be prorated.
4. ASSIGNMENT TERMINATES THIS CONTRACT; AMENDMENTS OF THIS CONTRACT.
This Contract shall automatically terminate, without the payment of any
penalty, in the event of its assignment; and this Contract shall not be amended
as to the Fund unless such amendment is approved at a meeting by the affirmative
vote of a majority of the outstanding shares of the Fund, and by the vote, cast
in person at a meeting called for the purpose of voting on such approval, of a
majority of the Trustees of the Trust who are not interested persons of the
Trust or of the Manager or of any Sub-Adviser of the Fund.
5. EFFECTIVE PERIOD AND TERMINATION OF THIS CONTRACT.
This Contract shall become effective upon its execution, and shall
remain in full force and effect as to each Fund continuously thereafter (unless
terminated automatically as set forth in Section 4) until terminated as follows:
(a) Either party hereto may at any time terminate this
Contract by not more than sixty days' written notice delivered or
mailed by registered mail, postage prepaid, to the other party, or
(b) If (i) the Trustees of the Trust or the shareholders by
the affirmative vote of a majority of the outstanding shares of the
Fund, and (ii) a majority of the Trustees of the Trust who are not
interested persons of the Trust or of the Manager, by vote cast in
person at a meeting called for the purpose of voting on such approval,
do not specifically approve at least annually the continuance of this
Contract, then this Contract shall automatically terminate at the close
of business on the second anniversary of its execution, or upon the
expiration of one year from the effective date of the last such
continuance, whichever is later; provided, however, that if the
continuance of this Contract is submitted to the shareholders of the
Fund for their approval and such shareholders fail to approve such
continuance of this Contract as provided herein, the Manager may
continue to serve hereunder in a manner consistent with the Investment
Company Act of 1940 and the Rules and Regulations thereunder.
Action by the Trust under (a) above may be taken either (i) by vote of
a majority of its Trustees, or (ii) by the affirmative vote of a majority of the
outstanding shares of the Fund.
Termination of this Contract pursuant to this Section 5 shall be
without the payment of any penalty.
6. CERTAIN DEFINITIONS.
For the purposes of this Contract, the "affirmative vote of a majority
of the outstanding shares" means the affirmative vote, at a duly called and held
meeting of shareholders, (a) of the holders of 67% or more of the shares of the
Fund present (in person or by proxy) and entitled to vote at such meeting, if
the holders of more than 50% of the outstanding shares of the Fund entitled to
vote at such meeting are present in person or by proxy, or (b) of the holders of
more than 50% of the outstanding shares of the Fund entitled to vote at such
meeting, whichever is less.
For the purposes of this Contract, the terms "affiliated person",
"control", "interested person" and "assignment" shall have their respective
meanings defined in the Investment Company Act of 1940 and the Rules and
Regulations thereunder, subject, however, to such exemptions as may be granted
by the Securities and Exchange Commission under said Act; the term "specifically
approve at least annually" shall be construed in a manner consistent with the
Investment Company Act of 1940 and the Rules and Regulations thereunder; and the
term "brokerage and research services" shall have the meaning given in the
Securities Exchange Act of 1934 and the Rules and Regulations thereunder.
7. NONLIABILITY OF MANAGER.
In the absence of willful misfeasance, bad faith or gross negligence on
the part of the Manager, or reckless disregard of its obligations and duties
hereunder, the Manager shall not be subject to any liability to the Trust, or to
any shareholder of the Trust, for any act or omission in the course of, or
connected with, rendering services hereunder.
8. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS.
A copy of the Amended and Restated Agreement and Declaration of Trust
of the Trust is on file with the Secretary of The Commonwealth of Massachusetts,
and notice is hereby given that this instrument is executed on behalf of the
Trustees of the Trust as Trustees and not individually and that the obligations
of this instrument are not binding upon any of the Trustees or shareholders
individually but are binding only upon the assets and property of the Fund.
9. THE WORDS "CCI," "PACIFIC INVESTMENT MANAGEMENT COMPANY," "PFAMCO,"
"PIMCO" OR "THOMSON".
The Manager owns the words "CCI," "Pacific Investment Management
Company," "PFAMCo," "PIMCO" and "Thomson" which may be used by the Trust only
with the consent of the Manager. The Manager consents to the use of the Trust of
the words "CCI," "Pacific Investment Management Company," "PFAMCo," "PIMCO" and
"Thomson," in such forms as the Manager shall in writing approve, but only on
condition and so long as (i) this Contract shall remain in full force and (ii)
the Trust shall fully perform, fulfill and comply with all provisions of this
Contract expressed herein to be performed, fulfilled or complied with by it. No
such name shall be used by the Trust at any time or in any place or for any
purposes or under any conditions except as in this section provided. The
foregoing authorization by the Manager to the Trust to use said name as part of
a business or name is not exclusive of the right of the Manager itself to use,
or to authorize others to use, the same; the Trust acknowledges and agrees that
as between the Manager and the Trust, the Manager has the exclusive right to so
authorize others to use the same; the Trust acknowledges and agrees that as
between the Manager and the Trust, the Manager has the exclusive right to so
use, or authorize others to use, said words and the Trust agrees to take such
action as may reasonably be requested by the Manager to give full effect to the
provisions of this section (including, without limitation, consenting to such
use of said words). Without limiting the generality of the foregoing, the Trust
agrees that, upon any termination of this Contract by either party or upon the
violation of any of its provisions by the Trust, the Trust will, at the request
of the Manager made within six months after the Manager has knowledge of such
termination or violation, use its best efforts to change the name of the Trust
so as to eliminate all reference, if any, to the words "CCI," "Pacific
Investment Management Company, " "PFAMCo," "PIMCO" and "Thomson" and will not
thereafter transact any business in a name containing the words "CCI," "Pacific
Investment Management Company," "PFAMCo," "PIMCO" or "Thomson" in any form or
combination whatsoever, or designate itself as the same entity as or successor
to an entity of such name, or otherwise use the words "CCI," "Pacific Investment
Management Company," "PFAMCo," "PIMCO" or "Thomson" or any other reference to
the Manager. Such covenants on the part of the Trust shall be binding upon it,
its trustees, officers, stockholders, creditors and all other persons claiming
under or through it.
IN WITNESS WHEREOF, THOMSON FUND GROUP and PIMCO ADVISORS L.P. have
each caused this instrument to be signed in duplicate in its behalf by its duly
authorized representative, all as of the day and year first above written.
THOMSON FUND GROUP
By: Xxxxxx X. Xxxxxxxxxxx
PIMCO ADVISORS L.P.
By: PIMCO Partners, G.P., a California
general partnership, General Partner
By: PIMCO Partners, LLC, a California
limited liability company, General Partner
By: Xxxxxxx X. Xxxxxxxx
3008057.01
MANAGEMENT CONTRACT
[Total Return Income Fund]
Management Contract executed as of November 16, 1994 between PIMCO
Advisors Funds, a Massachusetts business trust (the "Trust") on behalf of its
PIMCO Advisors Total Return Income Fund (the "Fund"), and PIMCO ADVISORS L.P., a
Delaware limited partnership (the "Manager").
WITNESSETH:
That in consideration of the mutual covenants herein contained, it is
agreed as follows:
1. SERVICES TO BE RENDERED BY MANAGER TO FUND.
(a) Subject always to the control of the Trustees of the Trust and to
such policies as the Trustees may determine, the Manager will, at its expense,
(i) furnish continuously an investment program for the Fund and will make
investment decisions on behalf of the Fund and place all orders for the purchase
and sale of portfolio securities and (ii) furnish office space and equipment,
provide bookkeeping and clerical services (excluding determination of net asset
value and shareholder accounting services) and pay all salaries, fees and
expenses of officers and Trustees of the Trust who are affiliated with the
Manager. In the performance of its duties, the Manager will comply with the
provisions of the Amended and Restated Agreement and Declaration of Trust and
By-laws of the Trust and its stated investment objectives, policies and
restrictions.
3008057.01
-7-
(b) In the selection of brokers or dealers and the placing of orders
for the purchase and sale of portfolio investments for the Fund, the Manager
shall seek to obtain for the Fund the most favorable price and execution
available, except to the extent it may be permitted to pay higher brokerage
commissions for brokerage and research services as described below. In using its
best efforts to obtain for the Fund the most favorable price and execution
available, the Manager, bearing in mind the Fund's best interests at all times,
shall consider all factors it deems relevant, including by way of illustration,
price, the size of the transaction, the nature of the market for the security,
the amount of the commission, the timing of the transaction taking into account
market prices and trends, the reputation, experience and financial stability of
the broker or dealer involved and the quality of service rendered by the broker
or dealer in other transactions. Subject to such policies as the Trustees may
determine, the Manager shall not be deemed to have acted unlawfully or to have
breached any duty created by this Contract or otherwise solely by reason of its
having caused the Fund to pay a broker or dealer that provides brokerage and
research services to the Manager an amount of commission for effecting a
portfolio investment transaction in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction, if the
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
Manager's overall responsibilities with respect to the Trust and to other
clients of the Manager as to which the Manager exercises investment discretion.
The Trust hereby agrees with the Manager and with any Sub-Adviser selected by
the Manager as provided in Section 1(c) hereof that any entity or person
associated with the Manager which is a member of a national securities exchange
is authorized to effect any transaction on such exchange for the account of the
Trust and the Fund which is permitted by Section 11(a) of the Securities
Exchange Act of 1934 and Rule 11a2-2(T) thereunder, and the Trust hereby
consents to the retention of compensation for such transactions in accordance
with Rule 11a2-2(T)(2)(iv).
(c) Subject to the provisions of the Agreement and Declaration of Trust
of the Trust and the Investment Company Act of 1940 (the "1940 Act"), the
Manager, at its expense, may select and contract with investment advisers (the
"Sub-Advisers") for the Fund. So long as Pacific Investment Management Company
serves as Sub-Adviser to the Fund pursuant to a Sub-Adviser Agreement in
substantially the form attached hereto as Exhibit A (the "Sub-Adviser
Agreement"), the obligation of the Manager under this Contract with respect to
the Fund shall be subject in any event to the control of the Trustees of the
Trust, to determine and review with Pacific Investment Management Company
investment policies of the Fund and Pacific Investment Management Company shall
have the obligation of furnishing continuously an investment program and making
investment decisions for the Fund, adhering to applicable investment objectives,
policies and restrictions and placing all orders for the purchase and sale of
portfolio securities for the Fund. The Manager will compensate any Sub-Adviser
of the Fund for its services to the Fund. The Manager may terminate the services
of the Sub-Adviser at any time in its sole discretion, and shall at such time
assume the responsibilities of such Sub-Adviser unless and until a successor
Sub-Adviser is selected.
(d) The Manager shall not be obligated to pay any expenses of or for
the Trust not expressly assumed by the Manager pursuant to this Section 1 other
than as provided in Section 3.
2. OTHER AGREEMENTS, ETC.
It is understood that any of the shareholders, Trustees, officers and
employees of the Trust may be a shareholder, director, officer or employee of,
or be otherwise interested in, the Manager, and in any person controlled by or
under common control with the Manager, and that the Manager and any person
controlled by or under common control with the Manager may have an interest in
the Trust. It is also understood that the Manager and persons controlled by or
under common control with the Manager have and may have advisory, management
service, distribution or other contracts with other organizations and persons,
and may have other interests and businesses.
3. COMPENSATION TO BE PAID BY THE TRUST TO THE MANAGER.
The Trust will pay to the Manager as compensation for the Manager's
services rendered, for the facilities furnished and for the expenses borne by
the Manager pursuant to Section 1, a fee, computed and paid monthly at the
annual rate of 0.60% of the average daily net asset value of the Fund up to $250
million and 0.50% of such net asset value in excess of $250 million. The average
daily net asset value of the Fund shall be determined by taking an average of
all of the determinations of such net asset value during such month at the close
of business on each business day during such month while this Contract is in
effect. Such fee shall be payable for each month within five (5) business days
after the end of such month.
In the event that expenses of the Fund for any fiscal year should
exceed the expense limitation on investment company expenses imposed by any
statute or regulatory authority of any jurisdiction in which shares of the Trust
are qualified for offer and sale, the compensation due the Manager for such
fiscal year shall be reduced by the amount of such excess by a reduction or
refund thereof. In the event that the expenses with respect to the Fund could
exceed any expense limitation which the Manager may, by written notice to the
Trust, voluntarily declare to be effective subject to such terms and conditions
as the Manager may prescribe in such notice, the compensation due the Manager
shall be reduced, and, if necessary, the Manager shall bear expenses with
respect to the Fund, to the extent required by such expense limitation.
If the Manager shall serve for less than the whole of a month, the
foregoing compensation shall be prorated.
4. ASSIGNMENT TERMINATES THIS CONTRACT; AMENDMENTS OF THIS CONTRACT.
This Contract shall automatically terminate, without the payment of any
penalty, in the event of its assignment; and this Contract shall not be amended
as to the Fund unless such amendment is approved at a meeting by the affirmative
vote of a majority of the outstanding shares of the Fund, and by the vote, cast
in person at a meeting called for the purpose of voting on such approval, of a
majority of the Trustees of the Trust who are not interested persons of the
Trust or of the Manager or of any Sub-Adviser of the Fund.
5. EFFECTIVE PERIOD AND TERMINATION OF THIS CONTRACT.
This Contract shall become effective upon its execution, and shall
remain in full force and effect as to each Fund continuously thereafter (unless
terminated automatically as set forth in Section 4) until terminated as follows:
(a) Either party hereto may at any time terminate this
Contract by not more than sixty days' written notice delivered or
mailed by registered mail, postage prepaid, to the other party, or
(b) If (i) the Trustees of the Trust or the shareholders by
the affirmative vote of a majority of the outstanding shares of the
Fund, and (ii) a majority of the Trustees of the Trust who are not
interested persons of the Trust or of the Manager, by vote cast in
person at a meeting called for the purpose of voting on such approval,
do not specifically approve at least annually the continuance of this
Contract, then this Contract shall automatically terminate at the close
of business on the second anniversary of its execution, or upon the
expiration of one year from the effective date of the last such
continuance, whichever is later; provided, however, that if the
continuance of this Contract is submitted to the shareholders of the
Fund for their approval and such shareholders fail to approve such
continuance of this Contract as provided herein, the Manager may
continue to serve hereunder in a manner consistent with the Investment
Company Act of 1940 and the Rules and Regulations thereunder.
Action by the Trust under (a) above may be taken either (i) by vote of
a majority of its Trustees, or (ii) by the affirmative vote of a majority of the
outstanding shares of the Fund.
Termination of this Contract pursuant to this Section 5 shall be
without the payment of any penalty.
6. CERTAIN DEFINITIONS.
For the purposes of this Contract, the "affirmative vote of a majority
of the outstanding shares" means the affirmative vote, at a duly called and held
meeting of shareholders, (a) of the holders of 67% or more of the shares of the
Fund present (in person or by proxy) and entitled to vote at such meeting, if
the holders of more than 50% of the outstanding shares of the Fund entitled to
vote at such meeting are present in person or by proxy, or (b) of the holders of
more than 50% of the outstanding shares of the Fund entitled to vote at such
meeting, whichever is less.
For the purposes of this Contract, the terms "affiliated person",
"control", "interested person" and "assignment" shall have their respective
meanings defined in the Investment Company Act of 1940 and the Rules and
Regulations thereunder, subject, however, to such exemptions as may be granted
by the Securities and Exchange Commission under said Act; the term "specifically
approve at least annually" shall be construed in a manner consistent with the
Investment Company Act of 1940 and the Rules and Regulations thereunder; and the
term "brokerage and research services" shall have the meaning given in the
Securities Exchange Act of 1934 and the Rules and Regulations thereunder.
7. NONLIABILITY OF MANAGER.
In the absence of willful misfeasance, bad faith or gross negligence on
the part of the Manager, or reckless disregard of its obligations and duties
hereunder, the Manager shall not be subject to any liability to the Trust, or to
any shareholder of the Trust, for any act or omission in the course of, or
connected with, rendering services hereunder.
8. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS.
A copy of the Amended and Restated Agreement and Declaration of Trust
of the Trust is on file with the Secretary of The Commonwealth of Massachusetts,
and notice is hereby given that this instrument is executed on behalf of the
Trustees of the Trust as Trustees and not individually and that the obligations
of this instrument are not binding upon any of the Trustees or shareholders
individually but are binding only upon the assets and property of the Fund.
9. THE WORDS "CCI," "PACIFIC INVESTMENT MANAGEMENT COMPANY," "PFAMCO,"
"PIMCO" OR "THOMSON".
The Manager owns the words "CCI," "Pacific Investment Management
Company," "PFAMCo," "PIMCO" and "Thomson" which may be used by the Trust only
with the consent of the Manager. The Manager consents to the use of the Trust of
the words "CCI," "Pacific Investment Management Company," "PFAMCo," "PIMCO" and
"Thomson," in such forms as the Manager shall in writing approve, but only on
condition and so long as (i) this Contract shall remain in full force and (ii)
the Trust shall fully perform, fulfill and comply with all provisions of this
Contract expressed herein to be performed, fulfilled or complied with by it. No
such name shall be used by the Trust at any time or in any place or for any
purposes or under any conditions except as in this section provided. The
foregoing authorization by the Manager to the Trust to use said name as part of
a business or name is not exclusive of the right of the Manager itself to use,
or to authorize others to use, the same; the Trust acknowledges and agrees that
as between the Manager and the Trust, the Manager has the exclusive right to so
authorize others to use the same; the Trust acknowledges and agrees that as
between the Manager and the Trust, the Manager has the exclusive right to so
use, or authorize others to use, said words and the Trust agrees to take such
action as may reasonably be requested by the Manager to give full effect to the
provisions of this section (including, without limitation, consenting to such
use of said words). Without limiting the generality of the foregoing, the Trust
agrees that, upon any termination of this Contract by either party or upon the
violation of any of its provisions by the Trust, the Trust will, at the request
of the Manager made within six months after the Manager has knowledge of such
termination or violation, use its best efforts to change the name of the Trust
so as to eliminate all reference, if any, to the words "CCI," "Pacific
Investment Management Company, " "PFAMCo," "PIMCO" and "Thomson" and will not
thereafter transact any business in a name containing the words "CCI," "Pacific
Investment Management Company," "PFAMCo," "PIMCO" or "Thomson" in any form or
combination whatsoever, or designate itself as the same entity as or successor
to an entity of such name, or otherwise use the words "CCI," "Pacific Investment
Management Company," "PFAMCo," "PIMCO" or "Thomson" or any other reference to
the Manager. Such covenants on the part of the Trust shall be binding upon it,
its trustees, officers, stockholders, creditors and all other persons claiming
under or through it.
IN WITNESS WHEREOF, PIMCO Advisors Funds and PIMCO ADVISORS L.P. have
each caused this instrument to be signed in duplicate in its behalf by its duly
authorized representative, all as of the day and year first above written.
PIMCO ADVISORS FUNDS
By: Xxxxxx X. Xxxxxxxxxxx
PIMCO ADVISORS L.P.
By: PIMCO Partners, G.P., a California
general partnership, General Partner
By: PIMCO Partners, LLC, a California
limited liability company, General Partner
By: Xxxxxxx X. Xxxxxxxx
3007665.02
MANAGEMENT CONTRACT
[Tax Exempt Fund]
Management Contract executed as of November 16, 1994 between THOMSON
FUND GROUP, a Massachusetts business trust (the "Trust") on behalf of its
Thomson Tax Exempt Fund (the "Fund"), and PIMCO ADVISORS L.P., a Delaware
limited partnership (the "Manager").
WITNESSETH:
That in consideration of the mutual covenants herein contained, it is
agreed as follows:
1. SERVICES TO BE RENDERED BY MANAGER TO FUND.
(a) Subject always to the control of the Trustees of the Trust and to
such policies as the Trustees may determine, the Manager will, at its expense,
(i) furnish continuously an investment program for the Fund and will make
investment decisions on behalf of the Fund and place all orders for the purchase
and sale of portfolio securities and (ii) furnish office space and equipment,
provide bookkeeping and clerical services (excluding determination of net asset
value and shareholder accounting services) and pay all salaries, fees and
expenses of officers and Trustees of the Trust who are affiliated with the
Manager. In the performance of its duties, the Manager will comply with the
provisions of the Amended and Restated Agreement and Declaration of Trust and
By-laws of the Trust and its stated investment objectives, policies and
restrictions.
3007665.02
-7-
(b) In the selection of brokers or dealers and the placing of orders
for the purchase and sale of portfolio investments for the Fund, the Manager
shall seek to obtain for the Fund the most favorable price and execution
available, except to the extent it may be permitted to pay higher brokerage
commissions for brokerage and research services as described below. In using its
best efforts to obtain for the Fund the most favorable price and execution
available, the Manager, bearing in mind the Fund's best interests at all times,
shall consider all factors it deems relevant, including by way of illustration,
price, the size of the transaction, the nature of the market for the security,
the amount of the commission, the timing of the transaction taking into account
market prices and trends, the reputation, experience and financial stability of
the broker or dealer involved and the quality of service rendered by the broker
or dealer in other transactions. Subject to such policies as the Trustees may
determine, the Manager shall not be deemed to have acted unlawfully or to have
breached any duty created by this Contract or otherwise solely by reason of its
having caused the Fund to pay a broker or dealer that provides brokerage and
research services to the Manager an amount of commission for effecting a
portfolio investment transaction in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction, if the
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
Manager's overall responsibilities with respect to the Trust and to other
clients of the Manager as to which the Manager exercises investment discretion.
The Trust hereby agrees with the Manager and with any Sub-Adviser selected by
the Manager as provided in Section 1(c) hereof that any entity or person
associated with the Manager which is a member of a national securities exchange
is authorized to effect any transaction on such exchange for the account of the
Trust and the Fund which is permitted by Section 11(a) of the Securities
Exchange Act of 1934 and Rule 11a2-2(T) thereunder, and the Trust hereby
consents to the retention of compensation for such transactions in accordance
with Rule 11a2-2(T)(2)(iv).
(c) Subject to the provisions of the Agreement and Declaration of Trust
of the Trust and the Investment Company Act of 1940 (the "1940 Act"), the
Manager, at its expense, may select and contract with investment advisers (the
"Sub-Advisers") for the Fund. So long as Columbus Circle Investors serves as
Sub-Adviser to the Fund pursuant to a Sub-Adviser Agreement in substantially the
form attached hereto as Exhibit A (the "Sub-Adviser Agreement"), the obligation
of the Manager under this Contract with respect to the Fund shall be subject in
any event to the control of the Trustees of the Trust, to determine and review
with Columbus Circle Investors investment policies of the Fund and Columbus
Circle Investors shall have the obligation of furnishing continuously an
investment program and making investment decisions for the Fund, adhering to
applicable investment objectives, policies and restrictions and placing all
orders for the purchase and sale of portfolio securities for the Fund. The
Manager will compensate any Sub-Adviser of the Fund for its services to the
Fund. The Manager may terminate the services of the Sub-Adviser at any time in
its sole discretion, and shall at such time assume the responsibilities of such
Sub-Adviser unless and until a successor Sub-Adviser is selected.
(d) The Manager shall not be obligated to pay any expenses of or for
the Trust not expressly assumed by the Manager pursuant to this Section 1 other
than as provided in Section 3.
2. OTHER AGREEMENTS, ETC.
It is understood that any of the shareholders, Trustees, officers and
employees of the Trust may be a shareholder, director, officer or employee of,
or be otherwise interested in, the Manager, and in any person controlled by or
under common control with the Manager, and that the Manager and any person
controlled by or under common control with the Manager may have an interest in
the Trust. It is also understood that the Manager and persons controlled by or
under common control with the Manager have and may have advisory, management
service, distribution or other contracts with other organizations and persons,
and may have other interests and businesses.
3. COMPENSATION TO BE PAID BY THE TRUST TO THE MANAGER.
The Trust will pay to the Manager as compensation for the Manager's
services rendered, for the facilities furnished and for the expenses borne by
the Manager pursuant to Section 1, a fee, computed and paid monthly at the
annual rate of 0.60% of the average daily net asset value of the Fund. The
average daily net asset value of the Fund shall be determined by taking an
average of all of the determinations of such net asset value during such month
at the close of business on each business day during such month while this
Contract is in effect. Such fee shall be payable for each month within five (5)
business days after the end of such month.
In the event that expenses of the Fund for any fiscal year should
exceed the expense limitation on investment company expenses imposed by any
statute or regulatory authority of any jurisdiction in which shares of the Trust
are qualified for offer and sale, the compensation due the Manager for such
fiscal year shall be reduced by the amount of such excess by a reduction or
refund thereof. In the event that the expenses with respect to the Fund could
exceed any expense limitation which the Manager may, by written notice to the
Trust, voluntarily declare to be effective subject to such terms and conditions
as the Manager may prescribe in such notice, the compensation due the Manager
shall be reduced, and, if necessary, the Manager shall bear expenses with
respect to the Fund, to the extent required by such expense limitation.
If the Manager shall serve for less than the whole of a month, the
foregoing compensation shall be prorated.
4. ASSIGNMENT TERMINATES THIS CONTRACT; AMENDMENTS OF THIS CONTRACT.
This Contract shall automatically terminate, without the payment of any
penalty, in the event of its assignment; and this Contract shall not be amended
as to the Fund unless such amendment is approved at a meeting by the affirmative
vote of a majority of the outstanding shares of the Fund, and by the vote, cast
in person at a meeting called for the purpose of voting on such approval, of a
majority of the Trustees of the Trust who are not interested persons of the
Trust or of the Manager or of any Sub-Adviser of the Fund.
5. EFFECTIVE PERIOD AND TERMINATION OF THIS CONTRACT.
This Contract shall become effective upon its execution, and shall
remain in full force and effect as to each Fund continuously thereafter (unless
terminated automatically as set forth in Section 4) until terminated as follows:
(a) Either party hereto may at any time terminate this
Contract by not more than sixty days' written notice delivered or
mailed by registered mail, postage prepaid, to the other party, or
(b) If (i) the Trustees of the Trust or the shareholders by
the affirmative vote of a majority of the outstanding shares of the
Fund, and (ii) a majority of the Trustees of the Trust who are not
interested persons of the Trust or of the Manager, by vote cast in
person at a meeting called for the purpose of voting on such approval,
do not specifically approve at least annually the continuance of this
Contract, then this Contract shall automatically terminate at the close
of business on the second anniversary of its execution, or upon the
expiration of one year from the effective date of the last such
continuance, whichever is later; provided, however, that if the
continuance of this Contract is submitted to the shareholders of the
Fund for their approval and such shareholders fail to approve such
continuance of this Contract as provided herein, the Manager may
continue to serve hereunder in a manner consistent with the Investment
Company Act of 1940 and the Rules and Regulations thereunder.
Action by the Trust under (a) above may be taken either (i) by vote of
a majority of its Trustees, or (ii) by the affirmative vote of a majority of the
outstanding shares of the Fund.
Termination of this Contract pursuant to this Section 5 shall be
without the payment of any penalty.
6. CERTAIN DEFINITIONS.
For the purposes of this Contract, the "affirmative vote of a majority
of the outstanding shares" means the affirmative vote, at a duly called and held
meeting of shareholders, (a) of the holders of 67% or more of the shares of the
Fund present (in person or by proxy) and entitled to vote at such meeting, if
the holders of more than 50% of the outstanding shares of the Fund entitled to
vote at such meeting are present in person or by proxy, or (b) of the holders of
more than 50% of the outstanding shares of the Fund entitled to vote at such
meeting, whichever is less.
For the purposes of this Contract, the terms "affiliated person",
"control", "interested person" and "assignment" shall have their respective
meanings defined in the Investment Company Act of 1940 and the Rules and
Regulations thereunder, subject, however, to such exemptions as may be granted
by the Securities and Exchange Commission under said Act; the term "specifically
approve at least annually" shall be construed in a manner consistent with the
Investment Company Act of 1940 and the Rules and Regulations thereunder; and the
term "brokerage and research services" shall have the meaning given in the
Securities Exchange Act of 1934 and the Rules and Regulations thereunder.
7. NONLIABILITY OF MANAGER.
In the absence of willful misfeasance, bad faith or gross negligence on
the part of the Manager, or reckless disregard of its obligations and duties
hereunder, the Manager shall not be subject to any liability to the Trust, or to
any shareholder of the Trust, for any act or omission in the course of, or
connected with, rendering services hereunder.
8. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS.
A copy of the Amended and Restated Agreement and Declaration of Trust
of the Trust is on file with the Secretary of The Commonwealth of Massachusetts,
and notice is hereby given that this instrument is executed on behalf of the
Trustees of the Trust as Trustees and not individually and that the obligations
of this instrument are not binding upon any of the Trustees or shareholders
individually but are binding only upon the assets and property of the Fund.
9. THE WORDS "CCI," "PACIFIC INVESTMENT MANAGEMENT COMPANY," "PFAMCO,"
"PIMCO" OR "THOMSON".
The Manager owns the words "CCI," "Pacific Investment Management
Company," "PFAMCo," "PIMCO" and "Thomson" which may be used by the Trust only
with the consent of the Manager. The Manager consents to the use of the Trust of
the words "CCI," "Pacific Investment Management Company," "PFAMCo," "PIMCO" and
"Thomson," in such forms as the Manager shall in writing approve, but only on
condition and so long as (i) this Contract shall remain in full force and (ii)
the Trust shall fully perform, fulfill and comply with all provisions of this
Contract expressed herein to be performed, fulfilled or complied with by it. No
such name shall be used by the Trust at any time or in any place or for any
purposes or under any conditions except as in this section provided. The
foregoing authorization by the Manager to the Trust to use said name as part of
a business or name is not exclusive of the right of the Manager itself to use,
or to authorize others to use, the same; the Trust acknowledges and agrees that
as between the Manager and the Trust, the Manager has the exclusive right to so
authorize others to use the same; the Trust acknowledges and agrees that as
between the Manager and the Trust, the Manager has the exclusive right to so
use, or authorize others to use, said words and the Trust agrees to take such
action as may reasonably be requested by the Manager to give full effect to the
provisions of this section (including, without limitation, consenting to such
use of said words). Without limiting the generality of the foregoing, the Trust
agrees that, upon any termination of this Contract by either party or upon the
violation of any of its provisions by the Trust, the Trust will, at the request
of the Manager made within six months after the Manager has knowledge of such
termination or violation, use its best efforts to change the name of the Trust
so as to eliminate all reference, if any, to the words "CCI," "Pacific
Investment Management Company, " "PFAMCo," "PIMCO" and "Thomson" and will not
thereafter transact any business in a name containing the words "CCI," "Pacific
Investment Management Company," "PFAMCo," "PIMCO" or "Thomson" in any form or
combination whatsoever, or designate itself as the same entity as or successor
to an entity of such name, or otherwise use the words "CCI," "Pacific Investment
Management Company," "PFAMCo," "PIMCO" or "Thomson" or any other reference to
the Manager. Such covenants on the part of the Trust shall be binding upon it,
its trustees, officers, stockholders, creditors and all other persons claiming
under or through it.
IN WITNESS WHEREOF, THOMSON FUND GROUP and PIMCO ADVISORS L.P. have
each caused this instrument to be signed in duplicate in its behalf by its duly
authorized representative, all as of the day and year first above written.
THOMSON FUND GROUP
By: Xxxxxx X. Xxxxxxxxxxx
PIMCO ADVISORS L.P.
By: PIMCO Partners, G.P., a California
general partnership, General Partner
By: PIMCO Partners, LLC, a California
limited liability company, General Partner
By: Xxxxxxx X. Xxxxxxxx
3007626.02
MANAGEMENT CONTRACT
[U.S. Government Fund]
Management Contract executed as of November 16, 1994 between THOMSON
FUND GROUP, a Massachusetts business trust (the "Trust") on behalf of its
Thomson U.S. Government Fund (the "Fund"), and PIMCO ADVISORS L.P., a Delaware
limited partnership (the "Manager").
WITNESSETH:
That in consideration of the mutual covenants herein contained, it is
agreed as follows:
1. SERVICES TO BE RENDERED BY MANAGER TO FUND.
(a) Subject always to the control of the Trustees of the Trust and to
such policies as the Trustees may determine, the Manager will, at its expense,
(i) furnish continuously an investment program for the Fund and will make
investment decisions on behalf of the Fund and place all orders for the purchase
and sale of portfolio securities and (ii) furnish office space and equipment,
provide bookkeeping and clerical services (excluding determination of net asset
value and shareholder accounting services) and pay all salaries, fees and
expenses of officers and Trustees of the Trust who are affiliated with the
Manager. In the performance of its duties, the Manager will comply with the
provisions of the Amended and Restated Agreement and Declaration of Trust and
By-laws of the Trust and its stated investment objectives, policies and
restrictions.
3007626.02
-7-
(b) In the selection of brokers or dealers and the placing of orders
for the purchase and sale of portfolio investments for the Fund, the Manager
shall seek to obtain for the Fund the most favorable price and execution
available, except to the extent it may be permitted to pay higher brokerage
commissions for brokerage and research services as described below. In using its
best efforts to obtain for the Fund the most favorable price and execution
available, the Manager, bearing in mind the Fund's best interests at all times,
shall consider all factors it deems relevant, including by way of illustration,
price, the size of the transaction, the nature of the market for the security,
the amount of the commission, the timing of the transaction taking into account
market prices and trends, the reputation, experience and financial stability of
the broker or dealer involved and the quality of service rendered by the broker
or dealer in other transactions. Subject to such policies as the Trustees may
determine, the Manager shall not be deemed to have acted unlawfully or to have
breached any duty created by this Contract or otherwise solely by reason of its
having caused the Fund to pay a broker or dealer that provides brokerage and
research services to the Manager an amount of commission for effecting a
portfolio investment transaction in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction, if the
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
Manager's overall responsibilities with respect to the Trust and to other
clients of the Manager as to which the Manager exercises investment discretion.
The Trust hereby agrees with the Manager and with any Sub-Adviser selected by
the Manager as provided in Section 1(c) hereof that any entity or person
associated with the Manager which is a member of a national securities exchange
is authorized to effect any transaction on such exchange for the account of the
Trust and the Fund which is permitted by Section 11(a) of the Securities
Exchange Act of 1934 and Rule 11a2-2(T) thereunder, and the Trust hereby
consents to the retention of compensation for such transactions in accordance
with Rule 11a2-2(T)(2)(iv).
(c) Subject to the provisions of the Agreement and Declaration of Trust
of the Trust and the Investment Company Act of 1940 (the "1940 Act"), the
Manager, at its expense, may select and contract with investment advisers (the
"Sub-Advisers") for the Fund. So long as Pacific Investment Management Company
serves as Sub-Adviser to the Fund pursuant to a Sub-Adviser Agreement in
substantially the form attached hereto as Exhibit A (the "Sub-Adviser
Agreement"), the obligation of the Manager under this Contract with respect to
the Fund shall be subject in any event to the control of the Trustees of the
Trust, to determine and review with Pacific Investment Management Company
investment policies of the Fund and Pacific Investment Management Company shall
have the obligation of furnishing continuously an investment program and making
investment decisions for the Fund, adhering to applicable investment objectives,
policies and restrictions and placing all orders for the purchase and sale of
portfolio securities for the Fund. The Manager will compensate any Sub-Adviser
of the Fund for its services to the Fund. The Manager may terminate the services
of the Sub-Adviser at any time in its sole discretion, and shall at such time
assume the responsibilities of such Sub-Adviser unless and until a successor
Sub-Adviser is selected.
(d) The Manager shall not be obligated to pay any expenses of or for
the Trust not expressly assumed by the Manager pursuant to this Section 1 other
than as provided in Section 3.
2. OTHER AGREEMENTS, ETC.
It is understood that any of the shareholders, Trustees, officers and
employees of the Trust may be a shareholder, director, officer or employee of,
or be otherwise interested in, the Manager, and in any person controlled by or
under common control with the Manager, and that the Manager and any person
controlled by or under common control with the Manager may have an interest in
the Trust. It is also understood that the Manager and persons controlled by or
under common control with the Manager have and may have advisory, management
service, distribution or other contracts with other organizations and persons,
and may have other interests and businesses.
3. COMPENSATION TO BE PAID BY THE TRUST TO THE MANAGER.
The Trust will pay to the Manager as compensation for the Manager's
services rendered, for the facilities furnished and for the expenses borne by
the Manager pursuant to Section 1, a fee, computed and paid monthly at the
annual rate of 0.60% of the average daily net asset value of the Fund up to $250
million and 0.50% of such net asset value in excess of $250 million. The average
daily net asset value of the Fund shall be determined by taking an average of
all of the determinations of such net asset value during such month at the close
of business on each business day during such month while this Contract is in
effect. Such fee shall be payable for each month within five (5) business days
after the end of such month.
In the event that expenses of the Fund for any fiscal year should
exceed the expense limitation on investment company expenses imposed by any
statute or regulatory authority of any jurisdiction in which shares of the Trust
are qualified for offer and sale, the compensation due the Manager for such
fiscal year shall be reduced by the amount of such excess by a reduction or
refund thereof. In the event that the expenses with respect to the Fund could
exceed any expense limitation which the Manager may, by written notice to the
Trust, voluntarily declare to be effective subject to such terms and conditions
as the Manager may prescribe in such notice, the compensation due the Manager
shall be reduced, and, if necessary, the Manager shall bear expenses with
respect to the Fund, to the extent required by such expense limitation.
If the Manager shall serve for less than the whole of a month, the
foregoing compensation shall be prorated.
4. ASSIGNMENT TERMINATES THIS CONTRACT; AMENDMENTS OF THIS CONTRACT.
This Contract shall automatically terminate, without the payment of any
penalty, in the event of its assignment; and this Contract shall not be amended
as to the Fund unless such amendment is approved at a meeting by the affirmative
vote of a majority of the outstanding shares of the Fund, and by the vote, cast
in person at a meeting called for the purpose of voting on such approval, of a
majority of the Trustees of the Trust who are not interested persons of the
Trust or of the Manager or of any Sub-Adviser of the Fund.
5. EFFECTIVE PERIOD AND TERMINATION OF THIS CONTRACT.
This Contract shall become effective upon its execution, and shall
remain in full force and effect as to each Fund continuously thereafter (unless
terminated automatically as set forth in Section 4) until terminated as follows:
(a) Either party hereto may at any time terminate this
Contract by not more than sixty days' written notice delivered or
mailed by registered mail, postage prepaid, to the other party, or
(b) If (i) the Trustees of the Trust or the shareholders by
the affirmative vote of a majority of the outstanding shares of the
Fund, and (ii) a majority of the Trustees of the Trust who are not
interested persons of the Trust or of the Manager, by vote cast in
person at a meeting called for the purpose of voting on such approval,
do not specifically approve at least annually the continuance of this
Contract, then this Contract shall automatically terminate at the close
of business on the second anniversary of its execution, or upon the
expiration of one year from the effective date of the last such
continuance, whichever is later; provided, however, that if the
continuance of this Contract is submitted to the shareholders of the
Fund for their approval and such shareholders fail to approve such
continuance of this Contract as provided herein, the Manager may
continue to serve hereunder in a manner consistent with the Investment
Company Act of 1940 and the Rules and Regulations thereunder.
Action by the Trust under (a) above may be taken either (i) by vote of
a majority of its Trustees, or (ii) by the affirmative vote of a majority of the
outstanding shares of the Fund.
Termination of this Contract pursuant to this Section 5 shall be
without the payment of any penalty.
6. CERTAIN DEFINITIONS.
For the purposes of this Contract, the "affirmative vote of a majority
of the outstanding shares" means the affirmative vote, at a duly called and held
meeting of shareholders, (a) of the holders of 67% or more of the shares of the
Fund present (in person or by proxy) and entitled to vote at such meeting, if
the holders of more than 50% of the outstanding shares of the Fund entitled to
vote at such meeting are present in person or by proxy, or (b) of the holders of
more than 50% of the outstanding shares of the Fund entitled to vote at such
meeting, whichever is less.
For the purposes of this Contract, the terms "affiliated person",
"control", "interested person" and "assignment" shall have their respective
meanings defined in the Investment Company Act of 1940 and the Rules and
Regulations thereunder, subject, however, to such exemptions as may be granted
by the Securities and Exchange Commission under said Act; the term "specifically
approve at least annually" shall be construed in a manner consistent with the
Investment Company Act of 1940 and the Rules and Regulations thereunder; and the
term "brokerage and research services" shall have the meaning given in the
Securities Exchange Act of 1934 and the Rules and Regulations thereunder.
7. NONLIABILITY OF MANAGER.
In the absence of willful misfeasance, bad faith or gross negligence on
the part of the Manager, or reckless disregard of its obligations and duties
hereunder, the Manager shall not be subject to any liability to the Trust, or to
any shareholder of the Trust, for any act or omission in the course of, or
connected with, rendering services hereunder.
8. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS.
A copy of the Amended and Restated Agreement and Declaration of Trust
of the Trust is on file with the Secretary of The Commonwealth of Massachusetts,
and notice is hereby given that this instrument is executed on behalf of the
Trustees of the Trust as Trustees and not individually and that the obligations
of this instrument are not binding upon any of the Trustees or shareholders
individually but are binding only upon the assets and property of the Fund.
9. THE WORDS "CCI," "PACIFIC INVESTMENT MANAGEMENT COMPANY," "PFAMCO,"
"PIMCO" OR "THOMSON".
The Manager owns the words "CCI," "Pacific Investment Management
Company," "PFAMCo," "PIMCO" and "Thomson" which may be used by the Trust only
with the consent of the Manager. The Manager consents to the use of the Trust of
the words "CCI," "Pacific Investment Management Company," "PFAMCo," "PIMCO" and
"Thomson," in such forms as the Manager shall in writing approve, but only on
condition and so long as (i) this Contract shall remain in full force and (ii)
the Trust shall fully perform, fulfill and comply with all provisions of this
Contract expressed herein to be performed, fulfilled or complied with by it. No
such name shall be used by the Trust at any time or in any place or for any
purposes or under any conditions except as in this section provided. The
foregoing authorization by the Manager to the Trust to use said name as part of
a business or name is not exclusive of the right of the Manager itself to use,
or to authorize others to use, the same; the Trust acknowledges and agrees that
as between the Manager and the Trust, the Manager has the exclusive right to so
authorize others to use the same; the Trust acknowledges and agrees that as
between the Manager and the Trust, the Manager has the exclusive right to so
use, or authorize others to use, said words and the Trust agrees to take such
action as may reasonably be requested by the Manager to give full effect to the
provisions of this section (including, without limitation, consenting to such
use of said words). Without limiting the generality of the foregoing, the Trust
agrees that, upon any termination of this Contract by either party or upon the
violation of any of its provisions by the Trust, the Trust will, at the request
of the Manager made within six months after the Manager has knowledge of such
termination or violation, use its best efforts to change the name of the Trust
so as to eliminate all reference, if any, to the words "CCI," "Pacific
Investment Management Company, " "PFAMCo," "PIMCO" and "Thomson" and will not
thereafter transact any business in a name containing the words "CCI," "Pacific
Investment Management Company," "PFAMCo," "PIMCO" or "Thomson" in any form or
combination whatsoever, or designate itself as the same entity as or successor
to an entity of such name, or otherwise use the words "CCI," "Pacific Investment
Management Company," "PFAMCo," "PIMCO" or "Thomson" or any other reference to
the Manager. Such covenants on the part of the Trust shall be binding upon it,
its trustees, officers, stockholders, creditors and all other persons claiming
under or through it.
IN WITNESS WHEREOF, THOMSON FUND GROUP and PIMCO ADVISORS L.P. have
each caused this instrument to be signed in duplicate in its behalf by its duly
authorized representative, all as of the day and year first above written.
THOMSON FUND GROUP
By: Xxxxxx X. Xxxxxxxxxxx
PIMCO ADVISORS L.P.
By: PIMCO Partners, G.P., a California
general partnership, General Partner
By: PIMCO Partners, LLC, a California
limited liability company, General Partner
By: Xxxxxxx X. Xxxxxxxx
3007641.02
MANAGEMENT CONTRACT
[Short-Intermediate Government Fund]
Management Contract executed as of November 16, 1994 between THOMSON
FUND GROUP, a Massachusetts business trust (the "Trust"), on behalf of its
THOMSON SHORT-INTERMEDIATE GOVERNMENT FUND (the "Fund"), and PIMCO ADVISORS
L.P., a Delaware limited partnership (the "Manager").
WITNESSETH:
That in consideration of the mutual covenants herein contained, it is
agreed as follows:
1. SERVICES TO BE RENDERED BY MANAGER TO FUND.
(a) Subject always to the control of the Trustees of the Trust and to
such policies as the Trustees may determine, the Manager will, at its expense,
(i) furnish continuously an investment program for the Fund and will make
investment decisions on behalf of the Fund and place all orders for the purchase
and sale of portfolio securities and (ii) furnish office space and equipment,
provide bookkeeping and clerical services (excluding determination of net asset
value and shareholder accounting services) and pay all salaries, fees and
expenses of officers and Trustees of the Trust who are affiliated with the
Manager. In the performance of its duties, the Manager will comply with the
provisions of the Amended and Restated Agreement and Declaration of Trust and
By-laws of the Trust and its stated investment objectives, policies and
restrictions.
3007641.02
-7-
(b) In the selection of brokers or dealers and the placing of orders
for the purchase and sale of portfolio investments for the Fund, the Manager
shall seek to obtain for the Fund the most favorable price and execution
available, except to the extent it may be permitted to pay higher brokerage
commissions for brokerage and research services as described below. In using its
best efforts to obtain for the Fund the most favorable price and execution
available, the Manager, bearing in mind the Fund's best interests at all times,
shall consider all factors it deems relevant, including by way of illustration,
price, the size of the transaction, the nature of the market for the security,
the amount of the commission, the timing of the transaction taking into account
market prices and trends, the reputation, experience and financial stability of
the broker or dealer involved and the quality of service rendered by the broker
or dealer in other transactions. Subject to such policies as the Trustees may
determine, the Manager shall not be deemed to have acted unlawfully or to have
breached any duty created by this Contract or otherwise solely by reason of its
having caused the Fund to pay a broker or dealer that provides brokerage and
research services to the Manager an amount of commission for effecting a
portfolio investment transaction in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction, if the
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
Manager's overall responsibilities with respect to the Trust and to other
clients of the Manager as to which the Manager exercises investment discretion.
The Trust hereby agrees with the Manager and with any Sub-Adviser selected by
the Manager as provided in Section 1(c) hereof that any entity or person
associated with the Manager which is a member of a national securities exchange
is authorized to effect any transaction on such exchange for the account of the
Trust and the Fund which is permitted by Section 11(a) of the Securities
Exchange Act of 1934 and Rule 11a2-2(T) thereunder, and the Trust hereby
consents to the retention of compensation for such transactions in accordance
with Rule 11a2-2(T)(2)(iv).
(c) Subject to the provisions of the Agreement and Declaration of Trust
of the Trust and the Investment Company Act of 1940 (the "1940 Act"), the
Manager, at its expense, may select and contract with investment advisers (the
"Sub-Advisers") for the Fund. So long as Pacific Investment Management Company
serves as Sub-Adviser to the Fund pursuant to a Sub-Adviser Agreement in
substantially the form attached hereto as Exhibit A (the "Sub-Adviser
Agreement"), the obligation of the Manager under this Contract with respect to
the Fund shall be subject in any event to the control of the Trustees of the
Trust, to determine and review with Pacific Investment Management Company
investment policies of the Fund and Pacific Investment Management Company shall
have the obligation of furnishing continuously an investment program and making
investment decisions for the Fund, adhering to applicable investment objectives,
policies and restrictions and placing all orders for the purchase and sale of
portfolio securities for the Fund. The Manager will compensate any Sub-Adviser
of the Fund for its services to the Fund. The Manager may terminate the services
of the Sub-Adviser at any time in its sole discretion, and shall at such time
assume the responsibilities of such Sub-Adviser unless and until a successor
Sub-Adviser is selected.
(d) The Manager shall not be obligated to pay any expenses of or for
the Trust not expressly assumed by the Manager pursuant to this Section 1 other
than as provided in Section 3.
2. OTHER AGREEMENTS, ETC.
It is understood that any of the shareholders, Trustees, officers and
employees of the Trust may be a shareholder, director, officer or employee of,
or be otherwise interested in, the Manager, and in any person controlled by or
under common control with the Manager, and that the Manager and any person
controlled by or under common control with the Manager may have an interest in
the Trust. It is also understood that the Manager and persons controlled by or
under common control with the Manager have and may have advisory, management
service, distribution or other contracts with other organizations and persons,
and may have other interests and businesses.
3. COMPENSATION TO BE PAID BY THE TRUST TO THE MANAGER.
The Trust will pay to the Manager as compensation for the Manager's
services rendered, for the facilities furnished and for the expenses borne by
the Manager pursuant to Section 1, a fee, computed and paid monthly at the
annual rate of 0.50% of the average daily net asset value of the Fund up to $250
million, 0.45% of the next $250 million of such net asset value and 0.40% of
such net asset value in excess of $500 million. The average daily net asset
value of the Fund shall be determined by taking an average of all of the
determinations of such net asset value during such month at the close of
business on each business day during such month while this Contract is in
effect. Such fee shall be payable for each month within five (5) business days
after the end of such month.
In the event that expenses of the Fund for any fiscal year should
exceed the expense limitation on investment company expenses imposed by any
statute or regulatory authority of any jurisdiction in which shares of the Trust
are qualified for offer and sale, the compensation due the Manager for such
fiscal year shall be reduced by the amount of such excess by a reduction or
refund thereof. In the event that the expenses with respect to the Fund could
exceed any expense limitation which the Manager may, by written notice to the
Trust, voluntarily declare to be effective subject to such terms and conditions
as the Manager may prescribe in such notice, the compensation due the Manager
shall be reduced, and, if necessary, the Manager shall bear expenses with
respect to the Fund, to the extent required by such expense limitation.
If the Manager shall serve for less than the whole of a month, the
foregoing compensation shall be prorated.
4. ASSIGNMENT TERMINATES THIS CONTRACT; AMENDMENTS OF THIS CONTRACT.
This Contract shall automatically terminate, without the payment of any
penalty, in the event of its assignment; and this Contract shall not be amended
as to the Fund unless such amendment is approved at a meeting by the affirmative
vote of a majority of the outstanding shares of the Fund, and by the vote, cast
in person at a meeting called for the purpose of voting on such approval, of a
majority of the Trustees of the Trust who are not interested persons of the
Trust or of the Manager or of any Sub-Adviser of the Fund.
5. EFFECTIVE PERIOD AND TERMINATION OF THIS CONTRACT.
This Contract shall become effective upon its execution, and shall
remain in full force and effect as to each Fund continuously thereafter (unless
terminated automatically as set forth in Section 4) until terminated as follows:
(a) Either party hereto may at any time terminate this
Contract by not more than sixty days' written notice delivered or
mailed by registered mail, postage prepaid, to the other party, or
(b) If (i) the Trustees of the Trust or the shareholders by
the affirmative vote of a majority of the outstanding shares of the
Fund, and (ii) a majority of the Trustees of the Trust who are not
interested persons of the Trust or of the Manager, by vote cast in
person at a meeting called for the purpose of voting on such approval,
do not specifically approve at least annually the continuance of this
Contract, then this Contract shall automatically terminate at the close
of business on the second anniversary of its execution, or upon the
expiration of one year from the effective date of the last such
continuance, whichever is later; provided, however, that if the
continuance of this Contract is submitted to the shareholders of the
Fund for their approval and such shareholders fail to approve such
continuance of this Contract as provided herein, the Manager may
continue to serve hereunder in a manner consistent with the Investment
Company Act of 1940 and the Rules and Regulations thereunder.
Action by the Trust under (a) above may be taken either (i) by vote of
a majority of its Trustees, or (ii) by the affirmative vote of a majority of the
outstanding shares of the Fund.
Termination of this Contract pursuant to this Section 5 shall be
without the payment of any penalty.
6. CERTAIN DEFINITIONS.
For the purposes of this Contract, the "affirmative vote of a majority
of the outstanding shares" means the affirmative vote, at a duly called and held
meeting of shareholders, (a) of the holders of 67% or more of the shares of the
Fund present (in person or by proxy) and entitled to vote at such meeting, if
the holders of more than 50% of the outstanding shares of the Fund entitled to
vote at such meeting are present in person or by proxy, or (b) of the holders of
more than 50% of the outstanding shares of the Fund entitled to vote at such
meeting, whichever is less.
For the purposes of this Contract, the terms "affiliated person",
"control", "interested person" and "assignment" shall have their respective
meanings defined in the Investment Company Act of 1940 and the Rules and
Regulations thereunder, subject, however, to such exemptions as may be granted
by the Securities and Exchange Commission under said Act; the term "specifically
approve at least annually" shall be construed in a manner consistent with the
Investment Company Act of 1940 and the Rules and Regulations thereunder; and the
term "brokerage and research services" shall have the meaning given in the
Securities Exchange Act of 1934 and the Rules and Regulations thereunder.
7. NONLIABILITY OF MANAGER.
In the absence of willful misfeasance, bad faith or gross negligence on
the part of the Manager, or reckless disregard of its obligations and duties
hereunder, the Manager shall not be subject to any liability to the Trust, or to
any shareholder of the Trust, for any act or omission in the course of, or
connected with, rendering services hereunder.
8. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS.
A copy of the Amended and Restated Agreement and Declaration of Trust
of the Trust is on file with the Secretary of The Commonwealth of Massachusetts,
and notice is hereby given that this instrument is executed on behalf of the
Trustees of the Trust as Trustees and not individually and that the obligations
of this instrument are not binding upon any of the Trustees or shareholders
individually but are binding only upon the assets and property of the Fund.
9. THE WORDS "CCI," "PACIFIC INVESTMENT MANAGEMENT COMPANY," "PFAMCO,"
"PIMCO" OR "THOMSON".
The Manager owns the words "CCI," "Pacific Investment Management
Company," "PFAMCo," "PIMCO" and "Thomson" which may be used by the Trust only
with the consent of the Manager. The Manager consents to the use of the Trust of
the words "CCI," "Pacific Investment Management Company," "PFAMCo," "PIMCO" and
"Thomson," in such forms as the Manager shall in writing approve, but only on
condition and so long as (i) this Contract shall remain in full force and (ii)
the Trust shall fully perform, fulfill and comply with all provisions of this
Contract expressed herein to be performed, fulfilled or complied with by it. No
such name shall be used by the Trust at any time or in any place or for any
purposes or under any conditions except as in this section provided. The
foregoing authorization by the Manager to the Trust to use said name as part of
a business or name is not exclusive of the right of the Manager itself to use,
or to authorize others to use, the same; the Trust acknowledges and agrees that
as between the Manager and the Trust, the Manager has the exclusive right to so
authorize others to use the same; the Trust acknowledges and agrees that as
between the Manager and the Trust, the Manager has the exclusive right to so
use, or authorize others to use, said words and the Trust agrees to take such
action as may reasonably be requested by the Manager to give full effect to the
provisions of this section (including, without limitation, consenting to such
use of said words). Without limiting the generality of the foregoing, the Trust
agrees that, upon any termination of this Contract by either party or upon the
violation of any of its provisions by the Trust, the Trust will, at the request
of the Manager made within six months after the Manager has knowledge of such
termination or violation, use its best efforts to change the name of the Trust
so as to eliminate all reference, if any, to the words "CCI," "Pacific
Investment Management Company, " "PFAMCo," "PIMCO" and "Thomson" and will not
thereafter transact any business in a name containing the words "CCI," "Pacific
Investment Management Company," "PFAMCo," "PIMCO" or "Thomson" in any form or
combination whatsoever, or designate itself as the same entity as or successor
to an entity of such name, or otherwise use the words "CCI," "Pacific Investment
Management Company," "PFAMCo," "PIMCO" or "Thomson" or any other reference to
the Manager. Such covenants on the part of the Trust shall be binding upon it,
its trustees, officers, stockholders, creditors and all other persons claiming
under or through it.
IN WITNESS WHEREOF, THOMSON FUND GROUP and PIMCO ADVISORS L.P. have
each caused this instrument to be signed in duplicate in its behalf by its duly
authorized representative, all as of the day and year first above written.
THOMSON FUND GROUP
By: Xxxxxx X. Xxxxxxxxxxx
PIMCO ADVISORS L.P.
By: PIMCO Partners, G.P., a California
general partnership, General Partner
By: PIMCO Partners, LLC, a California
limited liability company, General Partner
By: Xxxxxxx X. Xxxxxxxx
3007719.02
MANAGEMENT CONTRACT
[Money Market Fund]
Management Contract executed as of November 16, 1994 between THOMSON
FUND GROUP, a Massachusetts business trust (the "Trust") on behalf of its
Thomson Money Market Fund (the "Fund"), and PIMCO ADVISORS L.P., a Delaware
limited partnership (the "Manager").
Witnesseth:
That in consideration of the mutual covenants herein contained, it is
agreed as follows:
1. SERVICES TO BE RENDERED BY MANAGER TO FUND.
(a) Subject always to the control of the Trustees of the Trust and to
such policies as the Trustees may determine, the Manager will, at its expense,
(i) furnish continuously an investment program for the Fund and will make
investment decisions on behalf of the Fund and place all orders for the purchase
and sale of portfolio securities and (ii) furnish office space and equipment,
provide bookkeeping and clerical services (excluding determination of net asset
value and shareholder accounting services) and pay all salaries, fees and
expenses of officers and Trustees of the Trust who are affiliated with the
Manager. In the performance of its duties, the Manager will comply with the
provisions of the Amended and Restated Agreement and Declaration of Trust and
By-laws of the Trust and its stated investment objectives, policies and
restrictions.
3007719.02
-7-
(b) In the selection of brokers or dealers and the placing of orders
for the purchase and sale of portfolio investments for the Fund, the Manager
shall seek to obtain for the Fund the most favorable price and execution
available, except to the extent it may be permitted to pay higher brokerage
commissions for brokerage and research services as described below. In using its
best efforts to obtain for the Fund the most favorable price and execution
available, the Manager, bearing in mind the Fund's best interests at all times,
shall consider all factors it deems relevant, including by way of illustration,
price, the size of the transaction, the nature of the market for the security,
the amount of the commission, the timing of the transaction taking into account
market prices and trends, the reputation, experience and financial stability of
the broker or dealer involved and the quality of service rendered by the broker
or dealer in other transactions. Subject to such policies as the Trustees may
determine, the Manager shall not be deemed to have acted unlawfully or to have
breached any duty created by this Contract or otherwise solely by reason of its
having caused the Fund to pay a broker or dealer that provides brokerage and
research services to the Manager an amount of commission for effecting a
portfolio investment transaction in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction, if the
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
Manager's overall responsibilities with respect to the Trust and to other
clients of the Manager as to which the Manager exercises investment discretion.
The Trust hereby agrees with the Manager and with any Sub-Adviser selected by
the Manager as provided in Section 1(c) hereof that any entity or person
associated with the Manager which is a member of a national securities exchange
is authorized to effect any transaction on such exchange for the account of the
Trust and the Fund which is permitted by Section 11(a) of the Securities
Exchange Act of 1934 and Rule 11a2-2(T) thereunder, and the Trust hereby
consents to the retention of compensation for such transactions in accordance
with Rule 11a2-2(T)(2)(iv).
(c) Subject to the provisions of the Agreement and Declaration of Trust
of the Trust and the Investment Company Act of 1940 (the "1940 Act"), the
Manager, at its expense, may select and contract with investment advisers (the
"Sub-Advisers") for the Fund. So long as Columbus Circle Investors serves as
Sub-Adviser to the Fund pursuant to a Sub-Adviser Agreement in substantially the
form attached hereto as Exhibit A (the "Sub-Adviser Agreement"), the obligation
of the Manager under this Contract with respect to the Fund shall be subject in
any event to the control of the Trustees of the Trust, to determine and review
with Columbus Circle Investors investment policies of the Fund and Columbus
Circle Investors shall have the obligation of furnishing continuously an
investment program and making investment decisions for the Fund, adhering to
applicable investment objectives, policies and restrictions and placing all
orders for the purchase and sale of portfolio securities for the Fund. The
Manager will compensate any Sub-Adviser of the Fund for its services to the
Fund. The Manager may terminate the services of the Sub-Adviser at any time in
its sole discretion, and shall at such time assume the responsibilities of such
Sub-Adviser unless and until a successor Sub-Adviser is selected.
(d) The Manager shall not be obligated to pay any expenses of or for
the Trust not expressly assumed by the Manager pursuant to this Section 1 other
than as provided in Section 3.
2. OTHER AGREEMENTS, ETC.
It is understood that any of the shareholders, Trustees, officers and
employees of the Trust may be a shareholder, director, officer or employee of,
or be otherwise interested in, the Manager, and in any person controlled by or
under common control with the Manager, and that the Manager and any person
controlled by or under common control with the Manager may have an interest in
the Trust. It is also understood that the Manager and persons controlled by or
under common control with the Manager have and may have advisory, management
service, distribution or other contracts with other organizations and persons,
and may have other interests and businesses.
3. COMPENSATION TO BE PAID BY THE TRUST TO THE MANAGER.
The Trust will pay to the Manager as compensation for the Manager's
services rendered, for the facilities furnished and for the expenses borne by
the Manager pursuant to Section 1, a fee, computed and paid monthly at the
annual rate of 0.50% of the average daily net asset value of the Fund up to $250
million and 0.40% of such net asset value in excess of $250 million. The average
daily net asset value of the Fund shall be determined by taking an average of
all of the determinations of such net asset value during such month at the close
of business on each business day during such month while this Contract is in
effect. Such fee shall be payable for each month within five (5) business days
after the end of such month.
In the event that expenses of the Fund for any fiscal year should
exceed the expense limitation on investment company expenses imposed by any
statute or regulatory authority of any jurisdiction in which shares of the Trust
are qualified for offer and sale, the compensation due the Manager for such
fiscal year shall be reduced by the amount of such excess by a reduction or
refund thereof. In the event that the expenses with respect to the Fund could
exceed any expense limitation which the Manager may, by written notice to the
Trust, voluntarily declare to be effective subject to such terms and conditions
as the Manager may prescribe in such notice, the compensation due the Manager
shall be reduced, and, if necessary, the Manager shall bear expenses with
respect to the Fund, to the extent required by such expense limitation.
If the Manager shall serve for less than the whole of a month, the
foregoing compensation shall be prorated.
4. ASSIGNMENT TERMINATES THIS CONTRACT; AMENDMENTS OF THIS CONTRACT.
This Contract shall automatically terminate, without the payment of any
penalty, in the event of its assignment; and this Contract shall not be amended
as to the Fund unless such amendment is approved at a meeting by the affirmative
vote of a majority of the outstanding shares of the Fund, and by the vote, cast
in person at a meeting called for the purpose of voting on such approval, of a
majority of the Trustees of the Trust who are not interested persons of the
Trust or of the Manager or of any Sub-Adviser of the Fund.
5. EFFECTIVE PERIOD AND TERMINATION OF THIS CONTRACT.
This Contract shall become effective upon its execution, and shall
remain in full force and effect as to each Fund continuously thereafter (unless
terminated automatically as set forth in Section 4) until terminated as follows:
(a) Either party hereto may at any time terminate this
Contract by not more than sixty days' written notice delivered or
mailed by registered mail, postage prepaid, to the other party, or
(b) If (i) the Trustees of the Trust or the shareholders by
the affirmative vote of a majority of the outstanding shares of the
Fund, and (ii) a majority of the Trustees of the Trust who are not
interested persons of the Trust or of the Manager, by vote cast in
person at a meeting called for the purpose of voting on such approval,
do not specifically approve at least annually the continuance of this
Contract, then this Contract shall automatically terminate at the close
of business on the second anniversary of its execution, or upon the
expiration of one year from the effective date of the last such
continuance, whichever is later; provided, however, that if the
continuance of this Contract is submitted to the shareholders of the
Fund for their approval and such shareholders fail to approve such
continuance of this Contract as provided herein, the Manager may
continue to serve hereunder in a manner consistent with the Investment
Company Act of 1940 and the Rules and Regulations thereunder.
Action by the Trust under (a) above may be taken either (i) by vote of
a majority of its Trustees, or (ii) by the affirmative vote of a majority of the
outstanding shares of the Fund.
Termination of this Contract pursuant to this Section 5 shall be
without the payment of any penalty.
6. CERTAIN DEFINITIONS.
For the purposes of this Contract, the "affirmative vote of a majority
of the outstanding shares" means the affirmative vote, at a duly called and held
meeting of shareholders, (a) of the holders of 67% or more of the shares of the
Fund present (in person or by proxy) and entitled to vote at such meeting, if
the holders of more than 50% of the outstanding shares of the Fund entitled to
vote at such meeting are present in person or by proxy, or (b) of the holders of
more than 50% of the outstanding shares of the Fund entitled to vote at such
meeting, whichever is less.
For the purposes of this Contract, the terms "affiliated person",
"control", "interested person" and "assignment" shall have their respective
meanings defined in the Investment Company Act of 1940 and the Rules and
Regulations thereunder, subject, however, to such exemptions as may be granted
by the Securities and Exchange Commission under said Act; the term "specifically
approve at least annually" shall be construed in a manner consistent with the
Investment Company Act of 1940 and the Rules and Regulations thereunder; and the
term "brokerage and research services" shall have the meaning given in the
Securities Exchange Act of 1934 and the Rules and Regulations thereunder.
7. NONLIABILITY OF MANAGER.
In the absence of willful misfeasance, bad faith or gross negligence on
the part of the Manager, or reckless disregard of its obligations and duties
hereunder, the Manager shall not be subject to any liability to the Trust, or to
any shareholder of the Trust, for any act or omission in the course of, or
connected with, rendering services hereunder.
8. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS.
A copy of the Amended and Restated Agreement and Declaration of Trust
of the Trust is on file with the Secretary of The Commonwealth of Massachusetts,
and notice is hereby given that this instrument is executed on behalf of the
Trustees of the Trust as Trustees and not individually and that the obligations
of this instrument are not binding upon any of the Trustees or shareholders
individually but are binding only upon the assets and property of the Fund.
9. THE WORDS "CCI," "PACIFIC INVESTMENT MANAGEMENT COMPANY," "PFAMCO,"
"PIMCO" OR "THOMSON".
The Manager owns the words "CCI," "Pacific Investment Management
Company," "PFAMCo," "PIMCO" and "Thomson" which may be used by the Trust only
with the consent of the Manager. The Manager consents to the use of the Trust of
the words "CCI," "Pacific Investment Management Company," "PFAMCo," "PIMCO" and
"Thomson," in such forms as the Manager shall in writing approve, but only on
condition and so long as (i) this Contract shall remain in full force and (ii)
the Trust shall fully perform, fulfill and comply with all provisions of this
Contract expressed herein to be performed, fulfilled or complied with by it. No
such name shall be used by the Trust at any time or in any place or for any
purposes or under any conditions except as in this section provided. The
foregoing authorization by the Manager to the Trust to use said name as part of
a business or name is not exclusive of the right of the Manager itself to use,
or to authorize others to use, the same; the Trust acknowledges and agrees that
as between the Manager and the Trust, the Manager has the exclusive right to so
authorize others to use the same; the Trust acknowledges and agrees that as
between the Manager and the Trust, the Manager has the exclusive right to so
use, or authorize others to use, said words and the Trust agrees to take such
action as may reasonably be requested by the Manager to give full effect to the
provisions of this section (including, without limitation, consenting to such
use of said words). Without limiting the generality of the foregoing, the Trust
agrees that, upon any termination of this Contract by either party or upon the
violation of any of its provisions by the Trust, the Trust will, at the request
of the Manager made within six months after the Manager has knowledge of such
termination or violation, use its best efforts to change the name of the Trust
so as to eliminate all reference, if any, to the words "CCI," "Pacific
Investment Management Company, " "PFAMCo," "PIMCO" and "Thomson" and will not
thereafter transact any business in a name containing the words "CCI," "Pacific
Investment Management Company," "PFAMCo," "PIMCO" or "Thomson" in any form or
combination whatsoever, or designate itself as the same entity as or successor
to an entity of such name, or otherwise use the words "CCI," "Pacific Investment
Management Company," "PFAMCo," "PIMCO" or "Thomson" or any other reference to
the Manager. Such covenants on the part of the Trust shall be binding upon it,
its trustees, officers, stockholders, creditors and all other persons claiming
under or through it.
IN WITNESS WHEREOF, THOMSON FUND GROUP and PIMCO ADVISORS L.P. have
each caused this instrument to be signed in duplicate in its behalf by its duly
authorized representative, all as of the day and year first above written.
THOMSON FUND GROUP
By: Xxxxxx X. Xxxxxxxxxxx
PIMCO ADVISORS L.P.
By: PIMCO Partners, G.P., a California
general partnership, General Partner
By: PIMCO Partners, LLC, a California
limited liability company, General Partner
By: Xxxxxxx X. Xxxxxxxx
