EXHIBIT 99.5(g)
Portfolio Management Agreement
EXHIBIT 99.5(g)
PORTFOLIO MANAGEMENT AGREEMENT
AGREEMENT made this 1st day of May, 1998 between Pacific Life Insurance
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Company ("Adviser"), a California corporation, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset
Management, a separate operating division of ▇▇▇▇▇▇▇ Sachs & Co. ("Portfolio
Manager"), a partnership organized and existing under the laws of the State of
New York, 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 portfolios, with each such portfolio representing
interests in a separate portfolio; and
WHEREAS, the Fund currently offers multiple Portfolios, two of which are
designated as the Equity Portfolio and the Bond and Income Portfolio, such
Portfolios together with any other Portfolios 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 "Portfolios"; and
WHEREAS, the Adviser is registered as an investment adviser under the
Investment Advisers Act of 1940 ("Advisers Act"); and
WHEREAS, the Portfolio Manager is registered with the SEC as an investment
adviser under the Advisers Act; and
WHEREAS, the Fund has retained the Adviser to render investment advisory
services to the Portfolios pursuant to an Advisory Agreement, as amended, and
such Agreement authorizes the Adviser to engage Portfolio Manager to discharge
the Adviser's responsibilities with respect to the investment management of the
Portfolios, 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 Portfolios of the Fund and
the Portfolio Manager is willing to furnish such services to such Portfolios 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:
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1. Appointment. The Fund and the Adviser hereby appoint ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Asset Management to act as Portfolio Manager to the Equity Portfolio and the
Bond and Income Portfolio ("the Portfolios") 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 portfolios other than the
Portfolios, 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 portfolio shall become a Portfolio
hereunder, and be subject to this Agreement.
2. Portfolio Manager Duties. Subject to the supervision of the Fund's
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Board of Trustees and the Adviser, the Portfolio Manager will provide a
continuous investment program for the Portfolios and determine the composition
of the assets of the Portfolios, including determination of the purchase,
retention, or sale of the securities, cash, and other investments, including
futures contracts and options thereon, for the Portfolios. 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 Portfolios' assets by
determining the securities and other investments that shall be purchased,
entered into, sold, closed, or exchanged for the Portfolios, when these
transactions should be executed, and what portion of the assets of the
Portfolios 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 Portfolios. To the extent permitted
by the investment policies of the Portfolios, the Portfolio Manager shall make
decisions for the Portfolios 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 Portfolios. The Portfolio Manager is
authorized to exercise tender offers, exchange offers and to vote proxies on
behalf of the Fund, each as the Portfolio Manager determines is in the best
interest of the Fund. In performing these duties, the Portfolio Manager:
(a) Shall conform with (1) the 1940 Act and all rules and regulations
thereunder, and releases and interpretations related thereto (including any no-
action letters and exemptive orders which have been granted by the SEC to the
Fund and/or the Adviser, provided that the Fund or Adviser notifies Portfolio
Manager of any conditions set forth therein, or any no-action letters and
exemptive orders which have been granted to the Portfolio Manager) which the
Portfolio Manager shall provide copies of to the Fund and the Adviser, (2) with
all other applicable federal and state laws and regulations pertaining to
investment vehicles underlying variable annuity and/or variable life insurance
contracts, provided Adviser informs Portfolio Manager of all applicable state
insurance laws relating to the investment and management of the Portfolios,
including restrictions or limitations on
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investments in the Portfolios, and further provided that Adviser promptly
notifies Portfolio Manager of any changes in such laws or requirements, (3) any
applicable procedures, policies and/or guidelines, including but not limited to
diversification procedures, adopted by the Fund's Board of Trustees,or
implemented by the Adviser with respect to Portfolio Manager; provided that with
respect to procedures governing transactions involving affiliates (such as those
adopted pursuant to 1940 Act Rules 17a-7, 17e-1 and 10f-3), such procedures will
identify any affiliate of the Adviser and the Fund, other than affiliates of the
Portfolio Manager, (4) with the Portfolios' objectives, investment policies and
investment restrictions as stated in the Fund's Prospectus and Statement of
Additional Information ("SAI"), and (5) 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.
Until the Adviser delivers any supplements or amendments to the Portfolio
Manager, the Portfolio Manager shall be fully protected in relying on the Fund's
Registration Statement previously furnished to the Portfolio Manager by the
Adviser.
(b) Is responsible, in connection with its responsibilities under this
Section 2, for decisions to buy and sell securities and other investments for
the Portfolios, 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 Portfolios, taking into account the factors
specified in the Prospectus and SAI 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 Portfolio 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 Portfolios 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 place orders on behalf of
the Portfolios through the Portfolio Manager or any affiliate thereof if the
Portfolio Manager or its affiliate 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 brokers or dealers or FCMs or such other entities
which provide similar services in foreign countries, or to such brokers or
dealers that also provide research or statistical research and material, or
other services to the Portfolios 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.
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(c) May, on occasion when the purchase or sale of a security is deemed
to be in the best interest of a Portfolio 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 Fund's 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.
(d) Will, in connection with the purchase and sale of securities for
the Portfolios, together with the Adviser, arrange for the transmission to the
custodian and recordkeeping agent for the Fund, on a daily basis, such
confirmation(s), 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 Portfolio, as may be reasonably necessary
to enable the custodian and recordkeeping agent to perform its administrative
and recordkeeping responsibilities with respect to the Portfolios, 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, and recordkeeping agent, and, if
required, the Adviser.
(e) 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 Portfolios for which the custodian and recordkeeping
agent seeks assistance from the Portfolio Manager or identifies for review by
the Portfolio Manager. In this regard, the Portfolio Manager may be required,
if requested by the Fund's Adviser or custodian and recordkeeping agent, to
obtain and provide broker and/or market-maker quotations, to verify prices
obtained from Fund pricing sources, to price portfolio securities for which
there is no readily available market and/or to take such other actions as may be
required to ensure the Fund is valued at fair market value in accordance with
the Fund's pricing procedures.
(f) Will make available to the Fund and the Adviser promptly upon
request, any of the Portfolios' 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
Advisers Act, 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.
(g) Will regularly report to the Fund's Board of Trustees on the
investment program for the Portfolios and the issuers and securities represented
in the Portfolios' portfolios, and will furnish the Fund's Board of Trustees
with respect to the portfolio such periodic and special reports as the Trustees
and the Adviser may reasonably request.
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(h) 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 or obtaining investment licenses in various
countries or the opening of custody accounts and dealing with settlement agents
in various countries, and will keep confidential any information obtained
pursuant to the Agreement, and disclose such information only if the Board of
Trustees of the Fund has authorized such disclosure, or if such disclosure is
otherwise made public or is required by applicable federal or state law or
regulations or regulatory authorities having the requisite authority, or as may
be required by the legal process or in connection with any litigation arising
out of the subject matter of this Agreement. 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 otherwise made public or is
required by applicable federal or state law or regulations or regulatory
authorities having the requisite authority, or as may be required by the legal
process or in connection with any litigation arising out of the subject matter
of this Agreement.
(i) Shall not permit any employee of the Portfolio Manager to have any
material connection with the handling of the Portfolios if such employee has:
(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, salesperson, 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, salesperson 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.
(j) Shall provide to Adviser a copy of Portfolio Manager's Form ADV as
filed with the SEC and a list of persons who Portfolio Manager wishes to have
authorized to give written and/or oral instructions to custodians of Fund assets
for the Portfolios.
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(k) The Portfolio Manager agrees that it will immediately notify the
Fund and the Adviser of any change in the control (as defined in the ▇▇▇▇ ▇▇▇)
of the Portfolio Manager.
3. Disclosure about Portfolio Manager. The Portfolio Manager has reviewed
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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. On an annual basis, (or more
frequently if requested by the Adviser or the Fund's Board of Trustees) 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. Certain Diversification Matters. Adviser shall perform quarterly and
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annual tax compliance tests to ensure that the Portfolios are in compliance with
Subchapter M of the Internal Revenue Code ("IRC") and Section 817(h) of the IRC.
Adviser shall apprise the Portfolio Manager promptly after each quarter end of
any non-compliance with the diversification requirements in such IRC provisions.
If so advised, the Portfolio Manager shall take prompt action to bring the
Portfolio(s) back into compliance with such IRC diversification provisions, as
directed by the Adviser. The Portfolio Manager agrees that it shall not be
absolved of its responsibilities, duties and obligations to manage the
Portfolios in a manner consistent with Diversification Procedures or other
procedures, policies and/or guidelines adopted by the Fund, or implemented by
the Adviser with respect to Portfolio Manager.
5. Expenses. During the term of this Agreement, the Portfolio Manager
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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 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;
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(e) Expenses of obtaining quotations for calculating the value of the
Portfolio's net assets;
(f) Expenses of obtaining portfolio activity reports for each
Portfolio;
(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, if any, levied against the Fund or any of its Portfolios;
(j) Brokerage fees and commissions in connection with the purchase and
sale of portfolio securities for the Portfolios;
(k) Costs, including the interest expenses, of borrowing money;
(l) Costs and/or fees incidental to meetings of the Fund's
shareholders, the preparation and mailings of proxy statements, prospectuses,
statements of additional information 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" stock certificates, if any, representing
shares of the Fund;
(o) Trustees' fees and expenses of 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 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 and the
legal obligations of the Fund to
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indemnify its trustees, officers, employees, shareholders, distributors, and
agents with respect thereto (unless Portfolio Manager is responsible for such
expenses under Section 14 of this Agreement); and
(s) Organizational and offering expenses and, if applicable,
reimbursement (with interest) of underwriting discounts and commissions.
6. Compensation. For the services provided and the expenses borne by the
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Portfolio Manager pursuant to this Agreement, the Adviser will pay to the
Portfolio Manager a fee in accordance with the Fee Schedule attached to this
Agreement. This fee will be computed and accrued daily and payable monthly.
7. Seed Money. The Adviser agrees that the Portfolio Manager shall not
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be responsible for providing money for the initial capitalization of any
Portfolio.
8. Duty to Notify
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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 can reasonably be expected to result in any
of these actions, (ii) the Portfolio Manager has a reasonable basis for
believing that the Portfolio has ceased to qualify or might not qualify as a
regulated investment company under Subchapter M of the IRC, or (iii) the
Portfolio Manager knows of any material fact 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 Portfolio has
ceased to qualify or might not qualify as a regulated investment company under
Subchapter M of the IRC, and (iii) upon having a reasonable basis for believing
that the Portfolio has ceased to comply with the diversification provisions of
Section 817(h) of the IRC or the Regulations thereunder.
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9. Independent Contractor. The Portfolio Manager shall for all purposes
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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 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.
10. Books and Records. In compliance with the requirements of Rule 31a-3
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under the 1940 Act, the Portfolio Manager hereby agrees that all records which
it maintains for the Portfolio 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-1 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.
11. Cooperation. Each party to this Agreement agrees to cooperate with
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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.
12. Responsibility and Control. Notwithstanding any other provision of
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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.
13. Services Not Exclusive. It is understood that the services of the
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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 Portfolios) or from engaging
in other activities.
14. Liability. Except as provided in Section 14 and as may otherwise be
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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.
15. Indemnification.
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(a) 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 (collectively, "Adviser Indemnified Persons") against any and all
losses, claims, damages, liabilities or litigation (including reasonable legal
and other expenses), to which the Adviser or such affiliated person or
controlling person 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 Fund which (i) may be based upon any
willful misfeasance, bad faith, or gross negligence of, or by reckless disregard
of, the Portfolio Manager's obligations and/or duties under this Agreement by
the Portfolio Managers or by any of its directors, officers or employees, or any
affiliate acting on behalf of the Portfolio Manager (other than an Adviser
Indemnified Person), or (ii) 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 Portfolio, 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 in writing to the Adviser, the Trust, or any
affiliated person of the Fund by the Portfolio Manager or any affiliated person
of the Portfolio Manager (other than an Adviser Indemnified Person); provided,
however, that in no case is the Portfolio Manager's indemnity in favor of the
Adviser or any affiliated person or controlling person of the Adviser 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 or her duties, or by reason of his or her
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 willful
misfeasance, bad faith or gross negligence by the Adviser, any of its employees
or any affiliate acting on behalf of the Adviser (other than a Portfolio Manager
Indemnified Person) or (ii) 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 Portfolio, 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
(other than an Adviser 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
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gross negligence in the performance of his duties, or by reason of his reckless
disregard of obligations and duties under this Agreement.
16. Duration and Termination. This Agreement shall become effective as
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of the date of execution first written above, and shall continue in effect for
two years from such date and continue thereafter on an annual basis with respect
to the Portfolios; 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 Portfolio, 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 Portfolios. 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 Portfolio, by vote of a majority of the outstanding
voting shares of such Portfolio, 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 Portfolio shall
be effective to continue this Agreement with respect to such Portfolio
notwithstanding (a) that this Agreement has not been approved by the holders of
a majority of the outstanding shares of any other Portfolio 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 Portfolio(s) 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(h), 2(j), 9, 10, 11,
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13, 14 and 16 of this Agreement as well as any applicable provision of this
Paragraph numbered 15 shall remain in effect.
17. Use of Name.
-----------
(a) It is understood that the name "Pacific Life Insurance Company" or
"Pacific Life", or "Pacific Select Fund" or any derivative thereof, any
tradename, trademark, trade device, service ▇▇▇▇, symbol or logo associated with
those names are 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 prior written approval of the Adviser and only so long as
the Adviser is an investment adviser to the Fund and/or the Portfolios. Upon
termination of the Investment 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 "▇▇▇▇▇▇▇ Sachs & Co." or "▇▇▇▇▇▇▇
▇▇▇▇▇" or any derivative thereof, any tradename, trademark, trade device,
service ▇▇▇▇, symbol or logo associated with those names are 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
Portfolios with the prior written approval of the Portfolio Manager and for so
long as the Portfolio Manager is a Portfolio Manager to the Fund and/or the
Portfolios. Upon termination of this Agreement between the Fund, the Adviser and
the Portfolio Manager, the Fund and the Adviser shall forthwith cease to use
such name (or derivative or logo).
(c) Neither the Fund nor the Advisers shall use the Portfolio Manager's
name (or that of any affiliate, including the name "▇▇▇▇▇▇▇ ▇▇▇▇▇") in
promotional or sales related materials prepared by or on behalf of the Adviser
or the Fund, without prior review and approval by the Portfolio Manager, which
may not be unreasonably withheld.
18. 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 Agreement and Declaration of Trust has been
executed on behalf of the Trust by a Trustee of the Trust in his capacity as
Trustee of the Trust and not individually. 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.
19. 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 Advisers Act 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 1940 Act.
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(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.
(e) This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original, and all such counterparts shall
together constitute one and the same Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed as of the day and year first written above.
PACIFIC LIFE INSURANCE COMPANY
Attest:______________________________ By:_______________________________
Title: Title:
By:_______________________________
Title:
▇▇▇▇▇▇▇ SACHS ASSET
MANAGEMENT, A DIVISION OF
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
Attest:______________________________ By:_______________________________
Title: Title:
PACIFIC SELECT FUND
Attest:______________________________ By:_______________________________
Title: Title:
Title:
14
PACIFIC SELECT FUND
FEE SCHEDULE
Portfolios: Equity and Bond and Income Portfolios
Fee:
The Adviser will pay to the Portfolio Manager a monthly fee based on the
combined average daily net assets of these Portfolios at an annual rate equal
to:
.35% of the first $100 million
.30% on the next $100 million
.25% on the next $800 million
.20% on excess
However, this rate will be reduced if the Portfolio Manager is paid lower fees
by another variable insurance client, advised or sub-advised by Portfolio
Manager or any of its affiliates with (i) initial assets of $750 million or
less, or (ii) the combined daily net assets of the Equity and Bond and Income
Portfolios, whichever is greater. The fee structure set forth above shall be
automatically reduced so that fees paid to Portfolio Manager for services under
this Agreement are at a rate equal to the most favorable rate paid to Portfolio
Manager or any of its affiliates by such of its investment management
clients/accounts as described above.
15