EXHIBIT 99.5(f)
Portfolio Management Agreement - ▇▇▇▇▇▇▇▇▇ Investment Counsel, Inc.
PORTFOLIO MANAGEMENT AGREEMENT
AGREEMENT made this 16th day of December, 1993 between Pacific Mutual
Life Insurance Company ("Adviser"), a California corporation, and ▇▇▇▇▇▇▇▇▇
Investment Counsel, Inc. ("Portfolio Manager"), a Florida corporation, and
Pacific Select Fund (the "Fund"), a Massachusetts Business Trust.
WHEREAS, the Fund is registered with the Securities and Exchange
Commission ("SEC") as an open-end, management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Fund is authorized to issue shares of beneficial interest
("Shares") in separate series, with each such series representing interests in a
separate portfolio; and
WHEREAS, the Fund currently offers multiple series, one of which is
designated as the International Series, such Series together with any other
series subsequently established by the Fund, with respect to which the Fund and
Adviser desire to retain the Portfolio Manager to render investment advisory
services hereunder, and with respect to which the Portfolio Manager is willing
to do so, being herein collectively referred to also as the "Series"; and
WHEREAS, the Portfolio Manager is registered with the SEC as an
investment adviser under the Investment Advisers Act of 1940 ("Advisers Act");
and
WHEREAS, the Fund has retained the Adviser to render investment
advisory services to the Series pursuant to an Advisory Agreement, and such
Agreement authorizes the Adviser to engage Portfolio Manager to discharge the
Adviser's responsibilities with respect to the investment management of the
Series, a copy of which has been provided to the Portfolio Manager and is
incorporated by reference herein; and
WHEREAS, the Fund and the Adviser desire to retain the Portfolio
Manager to furnish investment advisory services to one or more of the Series of
the Fund, and the Portfolio Manager is willing to furnish such services to such
Series and the Adviser in the manner and on the terms hereinafter set forth; and
NOW THEREFORE, in consideration of the premises and the promises and
mutual covenants herein contained, it is agreed between the Fund, the Adviser,
and the Portfolio Manager as follows:
1. Appointment. The Fund and the Adviser hereby appoint ▇▇▇▇▇▇▇▇▇
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Investment Counsel, Inc. to act as Portfolio Manager to the International Series
(the "Series") for the periods and on the terms set forth in this Agreement.
The Portfolio Manager accepts such appointment and agrees to furnish the
services herein set forth for the compensation herein provided.
In the event the Adviser wishes to retain the Portfolio Manager to
render investment advisory services to one or more series other than the Series,
the Adviser shall notify the Portfolio Manager in writing. If the Portfolio
Manager is willing to render such services, it shall notify the Fund and Adviser
in writing, whereupon such series shall become a Series hereunder, and be
subject to this Agreement.
2. Portfolio Manager Duties. Subject to the supervision of the
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Fund's Board of Trustees and the Adviser, the Portfolio Manager will provide a
continuous investment program for the Series and determine the composition of
the assets of the Series, including determination of the purchase, retention, or
sale of the securities, cash, and other investments for the Series. The
Portfolio Manager will provide investment research and analysis, which may
consist of computerized investment methodology, and will conduct a continuous
program of evaluation, investment, sales, and reinvestment of the Series' assets
by determining the securities and other investments that shall be purchased,
entered into, sold, closed, or exchanged for the Series, when these transactions
should be executed, and what portion of the assets of the Series should be held
in the various securities and other investments in which it may invest, and the
Portfolio Manager is hereby authorized to execute and perform such services on
behalf of the Series. To the extent permitted by the investment policies of the
Series, the Portfolio Manager shall make decisions for the Series as to foreign
currency matters and make determinations as to the retention or disposition of
foreign currencies or securities or other instruments denominated in foreign
currencies, or derivative instruments based upon foreign currencies, including
forward foreign currency contracts and options and futures on foreign currencies
and shall execute and perform the same on behalf of the Series. The Portfolio
Manager will provide the services under this Agreement in accordance with the
Series' investment objective or objectives, investment policies, and investment
restrictions as stated in the Fund's Registration Statement filed on Form N-1A
with the SEC, as supplemented or amended from time to time, copies of which
shall be sent to the Portfolio Manager by the Adviser. In performing these
duties, the Portfolio Manager:
(a) Will (1) manage the Series so that it will qualify as a regulated
investment company under Subchapter M of the Internal Revenue Code, (2) manage
the Series so as to ensure compliance by the Series with the diversification
requirements of Section 817(h) of the Internal Revenue Code and Regulations
issued thereunder, and (3) manage the Series so as to ensure compliance by the
Series with the requirements of the 1940 Act and all other federal and/or state
laws or regulations pertaining to investment vehicles underlying variable
annuity or variable life insurance policies. The Adviser will notify the
Portfolio Manager of any amendments to the Section 817(h) of the Internal
Revenue Code and Regulations issued thereunder. In managing the Series in
accordance with these requirements, the Portfolio Manager shall be entitled to
receive and act upon advice of counsel to the Fund, counsel to the Adviser, or
counsel to the Portfolio Manager that is also acceptable to the Adviser.
(b) Shall conform with the 1940 Act and all rules and regulations
thereunder, all other applicable federal and state laws and regulations, with
any applicable procedures adopted by the Fund's Board of Trustees, and with the
provisions of the Fund's Registration Statement filed on Form N-1A under the
Securities Act of 1933 (the "1933 Act") and the 1940 Act, as supplemented or
amended from time to time.
(c) Is responsible, in connection with its responsibilities under this
Section 2, for decisions to buy and sell securities and other investments for
the Series, for broker-dealer and futures commission merchant ("FCM") selection,
and for negotiation of commission rates. The Portfolio Manager's primary
consideration in effecting a security or other transaction will be to obtain the
best execution for the Series, taking into account the factors specified in the
Prospectus and Statement of Additional Information for the Fund, as they may be
amended or supplemented from time to time. Subject to such policies as the
Board of Trustees may determine and consistent with Section 28(e) of the
Securities Exchange Act of 1934, the Portfolio Manager shall not be deemed to
have acted unlawfully or to have breached any duty created by this Agreement or
otherwise solely by reason of its having caused the Series to pay a broker or
dealer, acting as agent, for effecting a portfolio transaction at a price in
excess of the amount of commission another broker or dealer would have charged
for effecting that transaction, if the Portfolio Manager determines in good
faith that such amount of commission was reasonable in relation to the value of
the brokerage and research services provided by such broker or dealer, viewed in
terms of either that particular transaction or the Portfolio Manager's or its
affiliates overall responsibilities with respect to the Series and to its other
clients as to which it exercises investment discretion. To the extent
consistent with these standards, and in accordance with Section 11(a) of the
Securities Exchange Act of 1934 and Rule 11a2-2(T) thereunder, and subject to
any other applicable laws and regulations including Section 17(e) of the 1940
Act, the Portfolio Manager is further authorized to allocate the orders placed
by it on behalf of the Series to the Portfolio Manager if it is registered as a
broker or dealer with the SEC or as a FCM with the Commodities Futures Trading
Commission ("CFTC"), to any of its affiliates that are registered as a broker or
dealer with the SEC or as a FCM with the CFTC, or to such brokers and dealers
that also provide research or statistical research and material, or other
services to the Series or the Portfolio Manager. Such allocation shall be in
such amounts and proportions as the Portfolio Manager shall determine consistent
with the above standards, and, upon request, the Portfolio Manager will report
on said allocation to the Adviser and Board of Trustees of the Fund, indicating
the brokers, dealers or FCMs to which such allocations have been made and the
basis therefor.
(d) May, on occasions when the purchase or sale of a security is
deemed to be in the best interest of a Series as well as any other investment
advisory clients, to the extent permitted by applicable laws and regulations,
but shall not be obligated to, aggregate the securities to be so sold or
purchased with those of its other clients where such aggregation is not
inconsistent with the policies set forth in the Registration Statement. In such
event, allocation of the securities so purchased or sold, as well as the
expenses incurred in the transaction, will be made by the Portfolio Manager in a
manner that is fair and equitable in the judgment of the Portfolio Manager in
the exercise of its fiduciary obligations to the Fund and to such other clients.
(e) Will, in connection with the purchase and sale of securities for
the Series, together with the Adviser, arrange for the transmission to the
custodian, and the recordkeeping agent for the Fund on a daily basis, such
confirmations, trade tickets, and other documents and information, including,
but not limited to, Cusip, Sedol, or other numbers that identify securities to
be purchased or sold on behalf of the Series, as may be reasonably necessary to
enable the custodian and recordkeeping agent to perform its administrative and
recordkeeping responsibilities with respect to the Series, and, with respect to
portfolio securities to be purchased or sold through the Depository Trust
Company, will arrange for the automatic transmission of the confirmation of such
trades to the Fund's custodian, recordkeeping agent, and, if required, the
Adviser.
(f) Will assist the custodian and recordkeeping agent for the Fund in
determining or confirming, consistent with the procedures and policies stated in
the Registration Statement for the Fund, the value of any portfolio securities
or other assets of the Series for which the custodian and recordkeeping agent
seek assistance from the Portfolio Manager or identifies for review by the
Portfolio Manager.
(g) Will make available to the Fund, and the Adviser promptly upon
request, any of the Series' investment records and ledgers maintained by the
Portfolio Manager (which shall not include the records and ledgers maintained by
the custodian and recordkeeping agent for the Fund), as are necessary to assist
the Fund and the Adviser to comply with requirements of the 1940 Act and the
Investment Advisers Act of 1940, as well as other applicable laws, and will
furnish to regulatory authorities having the requisite authority any information
or reports in connection with such services which may be requested in order to
ascertain whether the operations of the Fund are being conducted in a manner
consistent with applicable laws and regulations.
(h) Will regularly report to the Fund's Board of Trustees on the
investment program for the Series and the issuers and securities represented in
the Series' portfolio, and will furnish the Fund's Board of Trustees with
respect to the Series such periodic and special reports as the Directors and the
Adviser may reasonably request.
(i) Will not disclose or use any records or information obtained
pursuant to this Agreement (excluding investment research and investment advice)
in any manner whatsoever except as expressly authorized in this Agreement or in
the ordinary course of business in connection with placing orders for the
purchase and sale of securities, and will keep confidential any information
obtained pursuant to this Agreement, and disclose such information only if the
Board of Trustees of the Fund has authorized such disclosure, or if such
disclosure is required by applicable federal or state law or regulations or
regulatory authorities having the requisite authority. The Fund and the Adviser
will not disclose or use any records or information respecting the Portfolio
Manager obtained pursuant to this Agreement in any manner whatsoever except as
expressly authorized in this Agreement, and will keep confidential any
information obtained pursuant to this Agreement, and disclose such information
only as expressly authorized in this Agreement, if the Board of Trustees of the
Fund has authorized such disclosure, or if such
disclosure is required by applicable federal or state law or regulations or
regulatory authorities having the requisite authority.
(j) Shall be responsible for making reasonable inquiries and for
reasonably ensuring that any employee of the Portfolio Manager has not, to the
best of the Portfolio Manager's knowledge:
(i) been convicted, in the last ten (10) years, of any felony or
misdemeanor involving the purchase or sale of any security or arising out of
such person's conduct as an underwriter, broker, dealer, investment adviser,
municipal securities dealer, government securities broker, government securities
dealer, transfer agent, or entity or person required to be registered under the
Commodity Exchange Act, or as an affiliated person, salesman, or employee of any
investment company, bank, insurance company, or entity or person required to be
registered under the Commodity Exchange Act; or
(ii) been permanently or temporarily enjoined by reason of any
misconduct, by order, judgment, or decree of any court of competent jurisdiction
from acting as an underwriter, broker, dealer, investment adviser, municipal
securities dealer, government securities broker, government securities dealer,
transfer agent, or entity or person required to be registered under the
Commodity Exchange Act, or as an affiliated person, salesman or employee of any
investment company, bank, insurance company, or entity or person required to be
registered under the Commodity Exchange Act, or from engaging in or continuing
any conduct or practice in connection with any such activity or in connection
with the purchase or sale of any security.
3. Disclosure about Portfolio Manager. The Portfolio Manager has
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reviewed the current Registration Statement for the Fund filed with the SEC and
represents and warrants that, with respect to the disclosure about the Portfolio
Manager or information relating, directly or indirectly, to the Portfolio
Manager, such Registration Statement contains, as of the date hereof, no untrue
statement of any material fact and does not omit any statement of a material
fact which was required to be stated therein or necessary to make the statements
contained therein not misleading. The Portfolio Manager further represents and
warrants that it is a duly registered investment adviser under the Advisers Act
and a duly registered investment adviser in all states in which the Portfolio
Manager is required to be registered. The Adviser has received a current copy
of the Portfolio Manager's Uniform Application for Investment Adviser
Registration on Form ADV, as filed with the SEC. The Portfolio Manager agrees
to provide the Adviser with current copies of the Portfolio Manager's Form ADV,
and any supplements or amendments thereto, as filed with the SEC.
4. Expenses. During the term of this Agreement, the Portfolio
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Manager will pay all expenses incurred by it and its staff and for their
activities in connection with its services under this Agreement. The Portfolio
Manager shall not be responsible, unless the Portfolio Manager is responsible
for an expense under the standards specified in Section 13 of this Agreement,
for any of the following:
(a) Expenses of all audits by the Fund's independent public
accountants;
(b) Expenses of the Fund's transfer agent, registrar, dividend
disbursing agent, and shareholder recordkeeping services;
(c) Expenses of the Fund's custodial services including
recordkeeping services provided by the custodian;
(d) Expenses of the Fund's recordkeeping services provided by
the recordkeeping agent;
(e) Expenses of obtaining quotations for calculating the value of
the Series' net assets;
(f) Expenses of obtaining portfolio activity reports for each
Series;
(g) Expenses of maintaining the Fund's tax records;
(h) Salaries and other compensation of any of the Fund's
executive officers and employees, if any, who are not officers, directors,
stockholders, or employees of the Portfolio Manager or its subsidiaries or
affiliates (except that the Adviser, or any of its subsidiaries or affiliates,
shall bear the expense with respect to executive officers and employees, if any,
who are officers, directors, stockholders or employees of the Adviser or of its
subsidiaries or affiliates);
(i) Taxes or governmental fees, if any, levied against the Fund
or any of its Series;
(j) Brokerage fees and commissions in connection with the
purchase and sale of portfolio securities for the Series;
(k) Costs, including the interest expenses, of borrowing money;
(l) Costs and/or fees incident to meetings of the Fund's
shareholders, the preparation and mailings of prospectuses and reports of the
Fund to its shareholders, the filing of reports with regulatory bodies, the
maintenance of the Fund's existence, and the registration of shares with federal
and state securities or insurance authorities;
(m) The Fund's legal fees, including the legal fees related to
the registration and continued qualification of the Fund's shares for sale;
(n) Costs of printing share certificates, if any, representing
shares of the Fund;
(o) Trustees' fees and expenses to trustees of the Fund who are not
officers, employees, or stockholders of the Portfolio Manager or any affiliate
thereof (except that the Adviser shall bear the expense of any trustee who is an
officer, employee, or stockholder of the Adviser or any affiliate thereof);
(p) The Fund's pro rata portion of the fidelity bond required by
Section 17(g) of the 1940 Act, or other insurance premiums;
(q) Association membership dues;
(r) Extraordinary expenses of the Fund as may arise including expenses
incurred in connection with litigation, proceedings and other claims (unless
Portfolio Manager is responsible for such expenses under Section 14 of this
Agreement) and the legal obligations of the Fund to indemnify its trustees,
officers, employees, shareholders, distributors, and agents with respect
thereto; and
(s) Organizational and offering expenses and, if applicable,
reimbursement (with interest) of underwriting discounts and commissions.
5. Compensation. For the services provided and the expenses borne
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by the Portfolio Manager pursuant to this Agreement, the Adviser will pay to the
Portfolio Manager a fee at an annual rate equal to .70% of the International
Series' average daily net assets up to $25 million, .55% of average daily net
assets on the next $25 million, .50% of average daily net assets on the next $50
million and .40% of average daily net assets thereafter. This fee shall be
computed and accrued daily and payable in arrears on the last day of the month.
6. Seed Money. The Adviser agrees that the Portfolio Manager shall
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not be responsible for providing money for the initial capitalization of any
Series.
7. Compliance.
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(a) The Portfolio Manager agrees that it shall immediately notify the
Adviser and the Fund in the event (i) that the SEC has censured the Portfolio
Manager; placed limitations upon its activities, functions or operations;
suspended or revoked its registration as an investment adviser; or has commenced
proceedings or an investigation that may result in any of these actions, (ii)
upon having a reasonable basis for believing that a Series has ceased to qualify
or might not qualify as a regulated investment company under Subchapter M of the
Internal Revenue Code, and (iii) upon having a reasonable basis for believing
that the Series has ceased to comply with the diversification provisions of
Section 817(h) of the Internal Revenue Code or the Regulations thereunder. The
Portfolio Manager further agrees to notify the Adviser and the Fund immediately
of any material fact known to the Portfolio Manager respecting or relating to
the Portfolio Manager that is not contained in the Registration Statement or
prospectus for the Fund, or any amendment or supplement thereto, or of any
statement contained therein that becomes untrue in any material respect.
(b) The Adviser agrees that it shall immediately notify the Portfolio
Manager in the event (i) that the SEC has censured the Adviser or the Fund;
placed limitations upon either of their activities, functions, or operations;
suspended or revoked the Adviser's registration as an investment adviser; or has
commenced proceedings or an investigation that may result in any of these
actions, (ii) upon having a reasonable basis for believing that a Series has
ceased to qualify or might not qualify as a regulated investment company under
Subchapter M of the Internal Revenue Code, and (iii) upon having a reasonable
basis for believing that the Series has ceased to comply with the
diversification provisions of Section 817(h) of the Internal Revenue Code or the
Regulations thereunder. It is understood that the Adviser is responsible for
preparation of routine compliance reports with respect to the Series.
8. Independent Contractor. The Portfolio Manager shall for all
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purposes herein be deemed to be an independent contractor and shall, unless
otherwise expressly provided herein or authorized by the Adviser from time to
time, have no authority to act for or represent the Adviser in any way or
otherwise be deemed its agent. The Portfolio Manager understands that unless
expressly provided herein or authorized from time to time by the Fund, the
Portfolio Manager shall have no authority to act for or represent the Fund in
any way or otherwise be deemed the Fund's agent.
9. Books and Records. In compliance with the requirements of Rule
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31a-3 under the 1940 Act, the Portfolio Manager hereby agrees that all records
which it maintains for the Series are the property of the Fund and further
agrees to surrender promptly to the Fund any of such records upon the Fund's or
the Adviser's request, although the Portfolio Manager may, at its own expense,
make and retain a copy of such records. The Portfolio Manager further agrees to
preserve for the periods prescribed by Rule 31a-2 under the 1940 Act the records
required to be maintained by Rule 31a-l under the 1940 Act and to preserve the
records required by Rule 204-2 under the Advisers Act for the period specified
in the Rule.
10. Cooperation. Each party to this Agreement agrees to cooperate
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with each other party and with all appropriate governmental authorities having
the requisite jurisdiction (including, but not limited to, the SEC and state
insurance authorities) in connection with any investigation or inquiry relating
to this Agreement or the Fund.
11. Responsibility and Control. Notwithstanding any other provision
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of this Agreement, it is understood and agreed that the Fund shall at all times
retain the ultimate responsibility for and control of all functions performed
pursuant to this Agreement and reserves the right to direct, approve or
disapprove any action hereunder taken on its behalf by the Portfolio Manager.
12. Services Not Exclusive. It is understood that the services of
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the Portfolio Manager are not exclusive, and nothing in this Agreement shall
prevent the Portfolio Manager (or its affiliates) from providing similar
services to other clients, including investment companies
(whether or not their investment objectives and policies are similar to those of
the Series) or from engaging in other activities.
13. Liability. Except as provided in Section 14 and as may otherwise
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be required by the 1940 Act or the rules thereunder or other applicable law, the
Fund and the Adviser agree that the Portfolio Manager, any affiliated person of
the Portfolio Manager, and each person, if any, who, within the meaning of
Section 15 of the 1933 Act, controls the Portfolio Manager shall not be liable
for, or subject to any damages, expenses, or losses in connection with, any act
or omission connected with or arising out of any services rendered under this
Agreement, except by reason of willful misfeasance, bad faith, or gross
negligence in the performance of the Portfolio Manager's duties, or by reason of
reckless disregard of the Portfolio Manager's obligations and duties under this
Agreement.
14. Indemnification.
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(a) Notwithstanding Section 13 of this Agreement, the Portfolio
Manager agrees to indemnify and hold harmless, the Adviser, any affiliated
person within the meaning of Section 2(a)(3) of the 1940 Act ("affiliated
person") of the Adviser, and each person, if any, who, within the meaning of
Section 15 of the 1933 Act, controls ("controlling person") the Adviser, the
Fund, and each of the Fund's Trustees and Officers (collectively, "Adviser/Fund
Indemnified Persons") against any and all losses, claims, damages, liabilities
or litigation (including reasonable legal and other expenses), to which the
Adviser/Fund Indemnified Persons may become subject under the 1933 Act, 1940
Act, the Advisers Act, under any other statute, at common law or otherwise,
arising out of the Portfolio Manager's responsibilities to the Series which (i)
may be based upon any misfeasance, malfeasance, or nonfeasance by the Portfolio
Manager, any of its employees or representatives, or any affiliate of or any
person acting on behalf of the Portfolio Manager (other than an Adviser/Fund
Indemnified Person), or (ii) may be based upon a failure to comply with the
Section 2, Paragraph (a) of this Agreement, or (iii) may be based upon any
untrue statement or alleged untrue statement of a material fact contained in a
registration statement or prospectus covering the Shares of the Fund or any
Series, or any amendment thereof or any supplement thereto, or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, if such a statement
or omission was made in reliance upon information furnished to the Adviser or
the Fund, or any affiliated person of the Adviser or the Fund by the Portfolio
Manager or any affiliated person of the Portfolio Manager (other than an
Adviser/Fund Indemnified Person); provided, however, that in no case is the
Portfolio Manager's indemnity in favor of the Adviser/Fund Indemnified Persons
deemed to protect such person against any liability to which any such person
would otherwise be subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of his duties, or by reason of his reckless
disregard of obligation and duties under this Agreement.
(b) The Adviser agrees to indemnify and hold harmless the Portfolio
Manager, any affiliated person within the meaning of Section 2(a)(3) of the 1940
Act of the Portfolio Manager and each person, if any, who, within the meaning of
Section 15 of the 1933 Act controls ("controlling person") the Portfolio Manager
(collectively, "Portfolio Manager
Indemnified Persons") against any and all losses, claims, damages, liabilities
or litigation (including reasonable legal and other expenses) to which a
Portfolio Manager Indemnified Person may become subject under the 1933 Act, the
1940 Act, the Advisers Act, under any other statute, at common law or otherwise,
arising out of the Adviser's responsibilities as adviser of the Fund which (i)
may be based upon any misfeasance, malfeasance, or nonfeasance by the Adviser,
any of its employees or representatives or any affiliate of or any person acting
on behalf of the Adviser, or (ii) may be based upon a failure by Adviser to
provide Portfolio Manager with accurate (except to the extent any inaccuracies
are caused by Portfolio Manager) compliance reports relating to compliance with
Section 2, Paragraph (a) of this Agreement or (iii) may be based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or prospectus covering Shares of the Fund or any Series,
or any amendment thereof or any supplement thereto, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statement therein not misleading, unless such statement or
omission was made in reliance upon written information furnished to the Fund or
the Adviser or any affiliated person of the Adviser by a Portfolio Manager
Indemnified Person; provided however, that in no case is the indemnity of the
Adviser in favor of the Portfolio Manager Indemnified Persons deemed to protect
such person against any liability to which any such person would otherwise be
subject by reason of willful misfeasance, bad faith, or gross negligence in the
performance of his duties, or by reason of his reckless disregard of obligations
and duties under this Agreement.
(c) The Adviser shall not be liable under Paragraph (b) or (c),
respectively of this Section 14 with respect to any claim made against a
Portfolio Manager Indemnified Person unless such Portfolio Manager Indemnified
Person shall have notified the Adviser in writing within a reasonable time after
the summons or other first legal process giving information of the nature of the
claim shall have been served upon such Portfolio Manager Indemnified Person (or
after such Portfolio Manager Indemnified Person shall have received notice of
such service on any designated agent), but failure to notify the Adviser of any
such claim shall not relieve the Adviser from any liability which it may have to
the Portfolio Manager Indemnified Person against whom such action is brought
otherwise than on account of this Section 14. In case any such action is
brought against the Portfolio Manager Indemnified Person, the Adviser will be
entitled to participate, at its own expense, in the defense thereof or, after
notice to the Portfolio Manager Indemnified Person, to assume the defense
thereof, with counsel satisfactory to the Portfolio Manager Indemnified Person.
If the Adviser assumes the defense and the selection of counsel by the Adviser
to represent both the Adviser and the Portfolio Manager Indemnified Person would
result in a conflict of interests and therefore, would not, in the reasonable
judgement of the Portfolio Manager Indemnified Person, adequately represent the
interests of the Portfolio Manager Indemnified Person, the Adviser will, at its
own expense, assume the defense with counsel to the Adviser and, also at its own
expense, with separate counsel to the Portfolio Manager Indemnified Person which
counsel shall be satisfactory to the Adviser and to the Portfolio Manager
Indemnified Person. The Portfolio Manager Indemnified Person shall bear the
fees and expenses of any additional counsel retained by it, and the Adviser
shall not be liable to the Portfolio Manager Indemnified Person under this
Agreement for any legal or other expenses subsequently incurred by the Portfolio
Manager Indemnified Person independently in connection with the defense thereof
other than reasonable
costs of investigation. The Adviser shall not have the right to compromise on
or settle the litigation without the prior written consent of the Portfolio
Manager Indemnified Person if the compromise or settlement results, or may
result in a finding of wrongdoing on the part of the Portfolio Manager
Indemnified Person.
(d) The Portfolio Manager shall not be liable under Paragraph (a) of
this Section 14 with respect to any claim made against an Adviser/Fund
Indemnified Person unless such Adviser/Fund Indemnified Person shall have
notified the Portfolio Manager in writing within a reasonable time after the
summons or other first legal process giving information of the nature of the
claim shall have been served upon such Adviser/Fund Indemnified Person (or after
such Adviser/Fund Indemnified Person shall have received notice of such service
on any designated agent), but failure to notify the Portfolio Manager of any
such claim shall not relieve the Portfolio Manager from any liability which it
may have to the Adviser/Fund Indemnified Person against whom such action is
brought otherwise than on account of this Section 14. In case any such action
is brought against the Adviser/Fund Indemnified Person, the Portfolio Manager
will be entitled to participate, at its own expense, in the defense thereof or,
after notice to the Adviser/Fund Indemnified Person, to assume the defense
thereof, with counsel satisfactory to the Adviser/Fund Indemnified Person. If
the Portfolio Manager assumes the defense and the selection of counsel by the
Portfolio Manager to represent both the Portfolio Manager and the Adviser/Fund
Indemnified Person would result in a conflict of interest and therefore, would
not, in the reasonable judgement of the Adviser/Fund Indemnified Person,
adequately represent the interests of the Adviser/Fund Indemnified Person, the
Portfolio Manager will, at its own expense, assume the defense with counsel to
the Portfolio Manager and, also at its own expense, with separate counsel to the
Adviser/Fund Indemnified Person which counsel shall be satisfactory to the
Portfolio Manager and to the Adviser/Fund Indemnified Person. The Adviser/Fund
Indemnified Person shall bear the fees and expenses of any additional counsel
retained by it, and the Portfolio Manager shall not be liable to the
Adviser/Fund Indemnified Person under this Agreement for any legal or other
expenses subsequently incurred by the Adviser/Fund Indemnified Person
independently in connection with the defense thereof other than reasonable costs
of investigation. The Portfolio Manager shall not have the right to compromise
on or settle the litigation without the prior written consent of the
Adviser/Fund Indemnified Person if the compromise or settlement results, or may
result in a finding of wrongdoing on the part of the Adviser/Fund Indemnified
Person.
15. Duration and Termination. This Agreement shall become effective
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as of January 1, 1994, and shall continue in effect for two years from such date
and continue thereafter on an annual basis with respect to the Series; provided
that such annual continuance is specifically approved at least annually (a) by
the vote of a majority of the Board of Trustees of the Fund, or (b) by the vote
of a majority of the outstanding voting shares of each Series, and provided that
continuance is also approved by the vote of a majority of the Board of Trustees
of the Fund who are not parties to this Agreement or "interested persons" (as
such term is defined in the ▇▇▇▇ ▇▇▇) of the Fund, the Adviser, or the Portfolio
Manager, cast in person at a meeting called for the purpose of voting on such
approval. This Agreement may not be materially amended without a majority vote
of the outstanding shares (as defined in the ▇▇▇▇ ▇▇▇) of the Series. This
Agreement may be terminated:
(a) by the Fund at any time with respect to the services provided by
the Portfolio Manager, without the payment of any penalty, forfeiture,
compulsory buyout amount, or performance of any other obligation which could
deter termination, by vote of a majority of the entire Board of Trustees of the
Fund or by a vote of a majority of the outstanding voting shares of the Fund or,
with respect to a particular Series, by vote of a majority of the outstanding
voting shares of such Series, on 60 days' written notice to the Portfolio
Manager and the Adviser;
(b) by the Portfolio Manager at any time, without the payment of any
penalty, forfeiture, compulsory buyout amount or performance of any other
obligation which could deter termination, upon 60 days' written notice to the
Adviser and the Fund.
(c) by the Adviser at any time, without the payment of any penalty,
forfeiture, compulsory buyout amount or performance of any other obligation
which could deter termination, upon 60 days' written notice to the Portfolio
Manager and the Fund.
However, any approval of this Agreement by the holders of a majority
of the outstanding shares (as defined in the ▇▇▇▇ ▇▇▇) of a particular Series
shall be effective to continue this Agreement with respect to such Series
notwithstanding (a) that this Agreement has not been approved by the holders of
a majority of the outstanding shares of any other Series or (b) that this
Agreement has not been approved by the vote of a majority of the outstanding
shares of the Fund, unless such approval shall be required by any other
applicable law or otherwise. In the event of termination for any reason, all
records of the Series shall promptly be returned to the Adviser or the Fund,
free from any claim or retention of rights in such record by the Portfolio
Manager, although the Portfolio Manager may, at its own expense, make and retain
a copy of such records. This Agreement will terminate automatically in event of
its assignment (as that term is defined in the 1940 Act), but shall not
terminate in connection with any transaction not deemed an assignment within the
meaning of Rules 2a-6 under the 1940 Act, or any other rule adopted by the SEC
regarding transactions not deemed to be assignments. In the event this
Agreement is terminated or is not approved in the manner described above, the
Sections or Paragraphs numbered 2(g), 2(i), 9, 10, 11, 13, 14 and 16 of this
Agreement as well as any applicable provision of this Paragraph numbered 15
shall remain in effect.
16. Use of Name.
-----------
(a) It is understood that the name "Pacific Mutual Life Insurance
Company" or "Pacific Mutual", or "Pacific Select Fund" or "Pacific Select" or
any derivative thereof or logo associated with that name is the valuable
property of the Adviser and its affiliates, and that the Portfolio Manager has
the right to use such name (or derivative or logo) only with the approval of the
Adviser and only so long as the Adviser is an investment adviser to the Fund
and/or the Series. Upon termination of the Advisory Agreement between the Fund
and the Adviser, the Portfolio Manager shall forthwith cease to use such name
(or derivative or logo).
(b) It is understood that the name "▇▇▇▇▇▇▇▇▇ Investment Counsel,
Inc." or "Templeton" or any derivative thereof or logo associated with that name
is the valuable
property of the Portfolio Manager and that the Adviser has the right to use such
name (or derivative or logo), in offering materials of the Fund and/or Series
with the approval of the Portfolio Manager and for so long as the Portfolio
Manager is a Portfolio Manager to the Fund and/or the Series. Upon termination
of this Agreement between the Adviser and the Portfolio Manager, the Fund and
the Adviser shall forthwith cease to use such name (or derivative or logo).
17. Limitation of Liability. A copy of the Amended and Restated
-----------------------
Agreement and Declaration of Trust for the Fund is on file with the Secretary of
the Commonwealth of Massachusetts. The obligations of this Agreement shall be
binding upon the assets and property of the Fund and shall not be binding upon
any Trustee, officer, employee, agent or shareholder, whether past, present, or
future, of the Fund individually.
18. Miscellaneous.
-------------
(a) This Agreement shall be governed by the laws of California,
provided that nothing herein shall be construed in a manner inconsistent with
the 1940 Act, the Investment Advisers Act of 1940 or rules or orders of the SEC
thereunder. The term "affiliate" or "affiliated person" as used in this
Agreement shall mean "affiliated person" as defined in Section 2(a)(3) of the
▇▇▇▇ ▇▇▇.
(b) The captions of this Agreement are included for convenience only
and in no way define or limit any of the provisions hereof or otherwise affect
their construction or effect.
(c) To the extent permitted under Section 15 of this Agreement, this
Agreement may only be assigned by any party with prior written consent of the
other parties.
(d) If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby, and to this extent, the provisions of this
Agreement shall be deemed to be severable. To the extent that any provision of
this Agreement shall be held or made invalid by a court decision, statute, rule
or otherwise with regard to any party hereunder, such provisions with respect to
other parties hereto shall not be affected thereby.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed as of the day and year first written above.
PACIFIC MUTUAL LIFE
INSURANCE COMPANY
Attest: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President Title: Chairman and Chief
Executive Officer
Attest: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President Title: Chief Investment Officer
▇▇▇▇▇▇▇▇▇ INVESTMENT
COUNSEL, INC.
Attest: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, General Counsel Title: Senior Vice President and
and Secretary Director
PACIFIC SELECT FUND
Attest: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇ ▇▇▇▇▇▇
Title: Vice President and Title: President
Assistant Secretary