-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Hc/qAin5WrbqfXno3mn8yN+5BqdyuPOjSX7fRDztPynT3RpKIiMtshgwO8qjT+/k nHb4E6edO/siw0/BywJzpg== 0000950147-01-501010.txt : 20010531 0000950147-01-501010.hdr.sgml : 20010531 ACCESSION NUMBER: 0000950147-01-501010 CONFORMED SUBMISSION TYPE: 485BPOS PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20010530 EFFECTIVENESS DATE: 20010530 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PILGRIM ADVISORY FUNDS INC CENTRAL INDEX KEY: 0000944689 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 954532342 STATE OF INCORPORATION: MD FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 485BPOS SEC ACT: SEC FILE NUMBER: 333-51722 FILM NUMBER: 1650020 BUSINESS ADDRESS: STREET 1: 2 RENAISSANCE SQUARE 12TH FLR STREET 2: 40 NORTH CENTRAL CITY: PHOENIX STATE: AZ ZIP: 85004-4424 BUSINESS PHONE: 6024178100 MAIL ADDRESS: STREET 1: 2 RENAISSANCE SQUARE 12TH FLR STREET 2: 40 NORTH CENTRAL CITY: PHOENIX STATE: AZ ZIP: 85004 485BPOS 1 e-6908.txt POST-EFFECTIVE AMENDMENT NO.2 TO FORM N-14 As filed with the Securities and Exchange Commission on May 30, 2001 Securities Act File No. 333-51722 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM N-14 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 [X] Pre-Effective Amendment No. Post-Effective Amendment No. 2 [X] PILGRIM ADVISORY FUNDS, INC. (Exact Name of Registrant as Specified in Charter) 7337 East Doubletree Ranch Road, Scottsdale, Arizona 85258 (Address of Principal Executive Offices) (Zip Code) (800) 992-0180 (Registrant's Area Code and Telephone Number) James M. Hennessy ING Pilgrim Investments, LLC 7337 East Doubletree Ranch Road Scottsdale, Arizona 85258 (Name and Address of Agent for Service) With copies to: Jeffrey S. Puretz, Esq. Dechert 1775 Eye Street, N.W. Washington, DC 20006 ---------- It is proposed that this filing will become effective immediately upon filing pursuant to Rule 485(b) under the Securities Act of 1933. ---------- No filing fee is required because an indefinite number of shares have previously been registered pursuant to Rule 24f-2 under the Investment Company Act of 1940, as amended. ================================================================================ EXPLANATORY NOTE The purpose of this filing is to file as an exhibit the opinion and consent of counsel supporting the tax matters and consequences to shareholders of the reorganization, as required by Item 16 (12) of Form N-14. Parts A and B to this Registration Statement are incorporated by reference to the definitive Proxy Statement/Prospectus filed on EDGAR on February 1, 2001 (SEC File No. 333-51722), and the definitive Statement of Additional Information filed on EDGAR on February 1, 2001 (SEC File No. 333-51722). PART C OTHER INFORMATION ITEM 15. INDEMNIFICATION Section 2-418 of the General Corporation Law of the State of Maryland, Article VII of the Fund's Articles of Corporation, Article VI of the Fund's Bylaws, the Investment Management Agreement filed as Exhibit (6)(A), and the Underwriting Agreement filed as Exhibit (7)(A) provide for indemnification. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the "Act"), may be permitted to directors, officers and controlling persons of the Registrant, pursuant to the foregoing provisions or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Fund in the successful defense of any action, suit or proceeding) is asserted by such a director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. ITEM 16. EXHIBITS (1)(A) Form of Articles of Incorporation (3) (B) Form of Articles of Supplementary designating Pilgrim America Strategic Income Fund (3) (C) Form of Amendment to Articles of Incorporation (3) (D) Form of Certificate of Correction to Articles of Incorporation (6) (E) Form of Certificate of Correction to Articles of Supplementary (6) (F) Form of Articles Supplementary designating Class C (6) (G) Form of Articles Supplementary designating Class Q (9) (H) Form of Articles of Amendment (10) (I) Form of Certificate of Correction (10) (2) Form of Amended and Restated Bylaws (1) (3) Not Applicable (4) Agreement and Plan of Reorganization (11) (5) Specimen security (2) (6)(A) Form of Investment Management Agreement (10) Form of Portfolio Management Agreement with HSBC Asset Management Americas Inc. and HSBC Asset (B) Management Hong Kong Limited relating to Asia-Pacific Equity Fund (7) Form of Underwriting Agreement between Pilgrim Advisory Funds, Inc. and Pilgrim Securities, Inc. (7)(A) Form of Underwriting Agreement between Pilgrim Advisory Funds, Inc. and Pilgrim Securities, Inc. (11) (B) Form of Selling Group Agreement (3) (C) Form of Service Agreement between Pilgrim Securities, Inc. and broker-dealers (3) C-1 (8) Not Applicable (9)(A) Form of Custody Agreement (3) (B) Form of Recordkeeping Agreement (3) (10)(A) Form of Service and Distribution Plan for Class A Shares (3) (B) Form of Service and Distribution Plan for Class B Shares (5) (C) Form of Service and Distribution Plan for Class M Shares (3) (D) Form of Amended and Restated Multiple Class Plan Adopted Pursuant to Rule 18f-3 (8) (11) Form of Opinion and Consent of Counsel (11) (12)(A) Opinion of Counsel supporting tax matters and consequences filed herewith (B) Consent of Counsel (13)(A) Form of Shareholder Service Agreement with Pilgrim Group, Inc. (6) (B) Form of Amended and Restated Expense Limitation Agreement (9) (14)(A) Consent of KPMG LLP (11) (B) Consent of PricewaterhouseCoopers LLP (12) (15) Not Applicable (16) Powers of Attorney for Directors previously filed with Registrant's Registration Statement on Form N-14 on December 13, 2000, and incorporated herein by reference. (17) Not Applicable - ---------- (1) Filed as an exhibit to Post-Effective Amendment No. 2 to the Registration Statement on Form N-1A filed on October 30, 1996, and incorporated herein by reference. (2) Filed as an exhibit to Pre-Effective Amendment No. 1 to the Registration Statement on Form N-1A filed on June 22, 1995, and incorporated herein by reference. (3) Filed as an exhibit to Post-Effective Amendment No. 6 to the Registration Statement on Form N-1A filed on August 14, 1998, and incorporated herein by reference. (4) Filed as an exhibit to Post-Effective Amendment No. 7 to the Registration Statement on Form N-1A filed on October 27, 1998, and incorporated herein by reference. (5) Filed as an exhibit to Post-Effective Amendment No. 8 to the Registration Statement on Form N-1A filed on March 25, 1999, and incorporated herein by reference. (6) Filed as an exhibit to Post-Effective Amendment No. 9 to the Registration Statement on Form N-1A filed on May 24, 1999, and incorporated herein by reference. (7) Filed as an exhibit to Post-Effective Amendment No. 10 to the Registration Statement on Form N-1A filed on September 2, 1999, and incorporated herein by reference. (8) Filed as an exhibit to Post-Effective Amendment No. 11 to the Registration Statement on Form N-1A filed on October 29, 1999, and incorporated herein by reference. C-2 (9) Filed as an exhibit to Post-Effective Amendment No. 13 to the Registration Statement on Form N-1A filed on January 4, 2000, and incorporated herein by reference. (10) Filed as an exhibit to Post-Effective Amendment No 14 to the Registration Statement on Form N-1A filed on November 1, 2000, and incorporated herein by reference. (11) Filed as an exhibit to the Registration Statement on Form N-14 filed on December 13, 2000, and incorporated herein by reference. (12) Filed as an exhibit to the Post-Effective Amendment No. 1 to Registrant's Registration Statement on Form N-14 filed on January 19, 2001, and incorporated herein by reference. ITEM 17. UNDERTAKINGS (1) The undersigned Registrant agrees that prior to any public reoffering of the securities registered through the use of a prospectus which is a part of this registration statement by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c) of the Securities Act 17 CFR 230.145(c), the reoffering prospectus will contain the information called for by the applicable registration form for reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the applicable form. (2) The undersigned Registrant agrees that every prospectus that is filed under paragraph (1) above will be filed as a part of an amendment to the registration statement and will not be used until the amendment is effective, and that, in determining any liability under the 1933 Act, each post-effective amendment shall be deemed to be a new registration statement for the securities offered therein, and the offering of the securities at that time shall be deemed to be the initial bona fide offering of them. C-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it meets all the requirements for effectiveness of this Post-Effective Amendment No. 2 to its Registration Statement on Form N-14 pursuant to Rule 485(b) under the Securities Act of 1933 and has duly caused this Post-Effective Amendment No. 2 to its Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Scottsdale and State of Arizona on the 29th day of May, 2001. PILGRIM ADIVSORY FUNDS, INC. By: /s/ Kimberly A. Anderson ------------------------------ Kimberly A. Anderson Vice President & Secretary Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated. Signature Title Date --------- ----- ---- - ------------------------------ Trustee and Chairman May 29, 2001 John G. Turner* /s/ James M. Hennessy - ------------------------------ President and Chief Executive May 29, 2001 James M. Hennessy Officer - ------------------------------ Senior Vice President and Michael J. Roland* Principal Financial Officer May 29, 2001 - ------------------------------ Trustee May 29, 2001 Paul S. Doherty* - ------------------------------ Trustee May 29, 2001 Alan L. Gosule* - ------------------------------ Trustee May 29, 2001 Walter H. May, Jr.* - ------------------------------ Trustee May 29, 2001 Thomas J. McInerney C-4 - ------------------------------ Trustee May 29, 2001 Jock Patton* - ------------------------------ Trustee May 29, 2001 David W.C. Putnam* - ------------------------------ Trustee May 29, 2001 Blaine E. Rieke - ------------------------------ Trustee May 29, 2001 Richard A. Wedemeyer * By: /s/ James M. Hennessy ------------------------------ James M. Hennessy Attorney-in-Fact** ** Executed pursuant to powers of attorney filed with the Registrant's Form N-14 Registration Statement on December 13, 2000. C-5 EXHIBIT INDEX (12) (A) Opinion of Counsel supporting tax matters and consequences (B) Consent of Counsel EX-99.12.A 2 ex-12.txt OPINION OF DECHERT RE: TAX MATTERS Exhibit 12(A) [LETTERHEAD OF DECHERT] March 23, 2001 Board of Directors Pilgrim SmallCap Asia Growth Fund Pilgrim SmallCap Asia Growth Fund, Inc. 7337 East Doubletree Ranch Road Scottsdale, AZ 85258 Board of Directors Pilgrim Asia-Pacific Equity Fund Pilgrim Advisory Funds, Inc. 7337 East Doubletree Ranch Road Scottsdale, AZ 85258 Dear Ladies and Gentlemen: You have requested our opinion regarding certain federal income tax consequences to the Pilgrim SmallCap Asia Growth Fund ("Target"), a separate series of Pilgrim SmallCap Asia Growth Fund, Inc., a Maryland corporation, to the holders of the shares (the "shares") of Target (the "Target Shareholders"), and to the Pilgrim Asia-Pacific Equity Fund ("Acquiring Fund"), a separate series of Pilgrim Advisory Funds, Inc. ("Acquiring Company"), a Maryland corporation, in connection with the proposed transfer of substantially all of the properties of Target to Acquiring Fund in exchange solely for voting shares of common stock of Acquiring Fund ("Acquiring Fund Shares"), followed by the distribution of such Acquiring Fund Shares received by Target in complete liquidation and termination of Target (the "Reorganization"), all pursuant to the Agreement and Plan of Reorganization (the "Plan") dated as of November 2, 2000 between Pilgrim SmallCap Asia Growth Fund, Inc. on behalf of Target and Acquiring Company on behalf of Acquiring Fund. For purposes of this opinion, we have examined and rely upon (1) the Plan, (2) the Form N-14 filed by Acquiring Fund on December 13, 2000 with the Securities and Exchange Commission, (3) the related Proxy Statement dated January 25, 2001, (4) the facts and representations contained in the letter dated on or about the date hereof addressed to us from Acquiring Company on behalf of Acquiring Fund, (5) the facts and representations contained in the letter dated on or about the date hereof addressed to us from Pilgrim SmallCap Asia Growth Fund, Inc. on behalf of Target, and (6) such other documents and instruments as we have deemed necessary or appropriate for purposes of rendering this opinion. This opinion is based upon the Internal Revenue Code of 1986, as amended (the "Code"), United States Treasury regulations, judicial decisions, and administrative rulings and pronouncements of the Internal Revenue Service, all as in effect on the date hereof. This opinion is conditioned upon the Reorganization taking place in the manner described in the Plan and the Form N-14 referred to above. Board of Trustees March 23, 2001 Page 2 Based upon the foregoing, it is our opinion that: 1. The acquisition by Acquiring Fund of substantially all of the properties of Target in exchange solely for Acquiring Fund Shares followed by the distribution of Acquiring Fund Shares to the Target Shareholders in exchange for their Target shares in complete liquidation and termination of Target will constitute a reorganization within the meaning of section 368(a) of the Code. Target and Acquiring Fund will each be "a party to a reorganization" within the meaning of section 368(b) of the Code. 2. Target will not recognize gain or loss upon the transfer of substantially all of its assets to Acquiring Fund in exchange solely for Acquiring Fund Shares except to the extent that Target's assets consist of contracts described in section 1256(b) of the Code ("Section 1256 Contracts"); Target will be required to recognize gain or loss on the transfer of any such Section 1256 contracts to Acquiring Fund pursuant to the Reorganization as if such Section 1256 contracts were sold to Acquiring Fund on the effective date of the Reorganization at their fair market value. Target will not recognize gain or loss upon the distribution to its shareholders of the Acquiring Fund Shares received by Target in the Reorganization. We do not express any opinion as to whether any accrued market discount will be required to be recognized as ordinary income. 3. Acquiring Fund will recognize no gain or loss upon receiving the properties of Target in exchange solely for Acquiring Fund Shares. 4. The aggregated adjusted basis to Acquiring Fund of the properties of Target received by Acquiring Fund in the reorganization will be the same as the aggregate adjusted basis of those properties in the hands of Target immediately before the exchange. 5. Acquiring Fund's holding periods with respect to the properties of Target that Acquiring Fund acquires in the transaction will include the respective periods for which those properties were held by Target (except where investment activities of Acquiring Fund have the effect of reducing or eliminating a holding period with respect to an asset). 6. The Target Shareholders will recognize no gain or loss upon receiving Acquiring Fund Shares solely in exchange for Target shares. 7. The aggregate basis of the Acquiring Fund Shares received by a Target Shareholder in the transaction will be the same as the aggregate basis of Target shares surrendered by the Target Shareholder in exchange therefor. 8. A Target Shareholder's holding period for the Acquiring Fund Shares received by the Target Shareholder in the transaction will include the holding period during which the Target Shareholder held Target shares surrendered in exchange therefor, provided that the Target Shareholder held such shares as a capital asset on the date of Reorganization. Board of Trustees March 23, 2001 Page 3 We express no opinion as to the federal income tax consequences of the Reorganization except as expressly set forth above, or as to any transaction except those consummated in accordance with the Plan. Our opinion as expressed herein, is solely for the benefit of Target, the Target Shareholders, and the Acquiring Fund, and unless we give our prior written consent, neither our opinion nor this opinion letter may be quoted in whole or in part or relied upon by any other person. Very truly yours, /s/ Dechert EX-99.12.B 3 ex12b.txt CONSENT OF COUNSEL Exhibit 12(B) [LETTERHEAD OF DECHERT] May 29, 2001 Pilgrim Advisory Funds, Inc. 7337 East Doubletree Ranch Road Scottsdale, Arizona 85258-2034 Re: Pilgrim Advisory Funds, Inc. (File No. 333-51722) Dear Sirs: We hereby consent to the incorporation by reference to our opinion as an exhibit to Post-Effective Amendment No. 2 to the Registration Statement of Pilgrim Advisory Funds, Inc., and to all references to our firm therein. In giving such consent, however, we do not admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act of 1933, as amended, and the rules and regulations thereunder. Very truly yours, /s/ Dechert -----END PRIVACY-ENHANCED MESSAGE-----