EXHIBIT (d)(4)
FORM OF
PORTFOLIO MANAGEMENT AGREEMENT
AGREEMENT made effective this _____ day of _________ 2003 among Pacific
Life Insurance Company, a California corporation ("Investment Adviser"), and ▇▇▇
▇▇▇▇▇▇ Asset Management Inc. ("Portfolio Manager"), a _______________Company,
and Pacific Select Fund, a Massachusetts Business Trust (the "Fund").
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");
WHEREAS, the Investment Adviser is registered as an investment adviser
under the Investment Advisers Act of 1940, as amended ("Advisers Act");
WHEREAS, the Portfolio Manager is registered with the SEC as an
investment adviser under the Advisers Act;
WHEREAS, the Fund has retained the Investment Adviser to render
investment advisory services to the various portfolios of the Fund pursuant to
an Advisory Agreement, as amended, and such Agreement authorizes the Investment
Adviser to engage a portfolio manager to discharge the Investment Adviser's
responsibilities with respect to the investment management of such portfolios, a
copy of which has been provided to the Portfolio Manager and is incorporated
herein by reference;
WHEREAS, the Fund and the Investment 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 Investment 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 among the Fund, the Investment
Adviser, and the Portfolio Manager as follows:
1. Appointment. The Fund and the Investment Adviser hereby appoint ▇▇▇
▇▇▇▇▇▇ Asset Management Inc. to act as Portfolio Manager to provide investment
advisory services to the portfolios of the Fund listed on Exhibit A attached
hereto (hereinafter 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 Investment Adviser wishes to retain the Portfolio
Manager to render investment advisory services to one or more portfolios of the
Fund other than the Portfolios, the Investment Adviser shall notify the
Portfolio Manager in writing and shall revise the Exhibit A to reflect such
additional portfolio(s). If the Portfolio Manager is willing to render such
services, it shall notify the Fund and the Investment 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 Board of Trustees (the
"Board") and the Investment Adviser, the Portfolio Manager will provide a
continuous investment program for the Portfolios and determine the composition
of the assets of the Portfolios. The Portfolio Manager will provide investment
research and analysis, which may include computerized investment methodology,
and will conduct a continuous program of evaluation, investment, sales, and
reinvestment of the Portfolios' assets by determining the securities, cash and
other investments, including futures and options contracts, if any, that shall
be purchased, entered into, retained, 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 written 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 and shall exercise tender offers, exchange offers and
vote proxies on behalf of each Portfolio, each as the Portfolio Manager
determines is in the best interest of the Portfolio.
In performing these duties, the Portfolio Manager:
(a) Will 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, to the Investment Adviser (as provided to the Portfolio Manager by the
Investment Adviser), or to the Portfolio Manager), (2) all other applicable
federal and state laws and regulations pertaining to investment vehicles
underlying variable annuity and/or variable life insurance contracts, (3) any
applicable written procedures, policies and guidelines adopted by the Board and
furnished to the Portfolio Manager, (4) the Fund's objectives, investment
policies and investment restrictions as stated in the Fund's Prospectus and
Statement of Additional Information as supplemented or amended from time to
time, as furnished to the Portfolio Manager, (5) 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 (the
"Registration Statement"), (6) Section 851(b)(2) and (3) of Subchapter M of the
Internal Revenue Code of 1986, as amended (the "Code"), (7) the provisions of
Section 817(h) of the Code, applicable to the Portfolio; and (8) any other
applicable laws and regulations, including without limitation, proxy voting
regulations.
(b) Will (i) use its best efforts to identify each position in the
Portfolios that constitutes stock in a Passive Foreign Investment Company
("PFIC"), as that term is defined in Section 1296 of the Code, and (ii) make
such determinations and inform the Investment Adviser at least annually (or more
often and by such date(s) as the Investment Adviser shall request) of any stock
in a PFIC.
(c) 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 Statement of Additional Information for the
Fund, as they may be amended or
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supplemented from time to time and furnished to the Portfolio Manager. Subject
to such policies as the Board may determine and consistent with Section 28(e) of
the Securities Exchange Act of 1934, as amended (the "1934 Act"), 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 Portfolios 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 1934 Act 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 if the Portfolio Manager is registered as a broker or dealer with the
SEC or as a FCM with the Commodities Futures Trading Commission ("CFTC"),
through any of its affiliates that are brokers or dealers or FCMs or such other
entities which provide similar services in foreign countries, or through such
brokers and 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 Investment Adviser and
Board, indicating the brokers, dealers or FCMs to which such allocations have
been made the basis therefor. The Portfolio Manager is authorized to open
brokerage accounts on behalf of the Portfolios in accordance with Fund
procedures.
(d) May, on occasions 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 Registration Statement as
furnished to the Portfolio Manager. 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 and
consistent with the Portfolio Manager's fiduciary obligations to the Portfolios
and to such other clients.
(e) Will, in connection with the purchase and sale of securities for
the Portfolios, together with the Investment 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 Portfolios, 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 Investment Adviser. The Portfolio
Manager agrees to comply with such rules, procedures and time frames as the
Fund's custodian may set or provide with respect to the clearance and settlement
of transactions for a Portfolio. Any Portfolio assets shall be delivered
directly to the Fund's custodian.
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(f) Will provide reasonable assistance to the custodian and
recordkeeping agent for the Fund in determining or confirming, consistent with
the procedures and policies stated in the Fund's valuation procedures and/or the
Registration Statement, 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.
This includes (but is not limited to) obtaining bids and offers or quotes from
broker/dealers or market-makers, verifying pricing and providing fair valuations
or recommendations for fair valuations in accordance with the Fund's valuation
procedures, as they may be amended from time to time.
(g) Will maintain and preserve such records related to each Portfolio's
transactions as required under the 1940 Act and the Advisers Act. The Portfolio
Manager will make available to the Fund and the Investment 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 Investment Adviser in complying 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.
(h) Will regularly report to the Board on the investment program for
the Portfolios and the issuers and securities represented in the Portfolios, and
will furnish the Board, with respect to the Portfolios, such periodic and
special reports as the Board and the Investment Adviser may reasonably request,
including, but not limited to, reports concerning transactions and performance
of each Portfolio, a monthly compliance checklist, monthly tax compliance
worksheet, reports regarding compliance with the Fund's procedures pursuant to
Rules 17e-1, 17a-7, 10f-3 and 12d3-1 under the 1940 Act, fundamental investment
restrictions, procedures for opening brokerage accounts and commodity trading
accounts, liquidity determination of securities purchased pursuant to Rule 144A
and 4(2) commercial paper, IOs/POs, and compliance with the Portfolio Manager's
Code of Ethics, and such other procedures or requirements that the Investment
Adviser may reasonably request from time to time.
(i) Will adopt a written Code of Ethics complying with the requirements
of Rule 17j-1 under the 1940 Act and will provide the Investment Adviser and the
Fund with a copy of the Code of Ethics, together with evidence of its adoption.
Within 20 days of the end of each calendar quarter during which this Agreement
remains in effect, the president or a vice-president of the Portfolio Manager
shall certify to the Investment Adviser that the Portfolio Manager has complied
with the requirements of Rule 17j-1 during the previous calendar quarter and
that there have been no violations of the Code of Ethics or, if a violation has
occurred, that appropriate action has been taken in response to such violation.
Upon written request of the Investment Adviser or the Fund, the Portfolio
Manager shall permit representatives of the Investment Adviser and the Trust to
examine the reports (or summaries of the reports) required to be made under the
Code of Ethics and other records evidencing enforcement of the Code of Ethics.
(j) Will provide to the Investment Adviser a copy of the Portfolio
Manager's Form ADV, and any supplements or amendments thereto, as filed with the
SEC, on an annual basis (or more frequently if requested by the Investment
Adviser or the Board). The Portfolio Manager represents and warrants that it is
a duly registered investment adviser under the Advisers Act. The Portfolio
Manager will provide a list of persons who the Portfolio Manager
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wishes to have authorized to give written and/or oral instructions to Custodians
of assets for the Portfolios.
(k) Will be responsible for the preparation and filing of Schedule 13G
and Form 13F on behalf of the Fund reflecting holdings over which the Portfolio
Manager and its affiliates have investment direction.
(l) Will 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, within the last ten (10) years, convicted of or
acknowledged commission of any felony or misdemeanor (a) involving the purchase
or sale of any security, (b) involving embezzlement, fraudulent conversion, or
misappropriation of funds or securities, (c) involving sections 1341, 1342 or
1343 of Title 18 of the U.S. Code, or (d) 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 or officer or
director of any investment company, bank, insurance company, or entity or person
required to be registered under the Commodity Exchange Act.
(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.
(m) 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 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 Investment 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 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.
(n) Will assist the Investment Adviser, the Fund, and any of its or
their trustees, directors, officers, and/or employees in complying with the
provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 to the extent such provisions
relate to the services to be provided by, and the obligations of, the Portfolio
Manager hereunder. Specifically, and without limitation to the foregoing, the
Portfolio Manager agrees to provide certifications to the principal executive
and
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financial officers of the Fund (the "certifying officers") that correspond to
and/or support the certifications required to be made by the certifying officers
in connection with the preparation and/or filing of the Fund's Form N-SARs,
shareholder reports, financial statements, and disclosure documents, in such
form and content as the Fund shall reasonably request or as in accordance with
procedures adopted by the Fund.
3. Disclosure about Portfolio Manager and Portfolio. The Portfolio
Manager has reviewed the current Registration Statement and agrees to promptly
review future amendments to the Registration Statement, including any
supplements thereto, which relate to the Portfolio Manager or the Portfolios,
filed with the SEC (or which will be filed with the SEC in the future) and
represents and warrants that, with respect to the disclosure respecting or
relating to the Portfolio Manager, including any performance information the
Portfolio Manager provides that is included in or serves as the basis for
information included in the Registration Statement, such Registration Statement
contains as of the date hereof, or will contain as of the date of effectiveness
of any future Registration Statement or supplement thereto, no untrue statement
of any material fact and does not omit any statement of material fact which was
required to be stated therein or necessary to make the statements contained
therein not misleading. The Portfolio Manager further agrees to notify the
Investment 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 respecting or relating to
the Portfolio Manager contained therein that becomes untrue in any material
respect. With respect to the disclosure respecting each Portfolio, the Portfolio
Manager represents and agrees that the description in the Fund's prospectus
contained in the following sections: "The portfolio's investment goal," and
"What the portfolio invests in" (collectively, "Portfolio Description") is
consistent with the manner in which the Portfolio Manager intends to manage each
Portfolio, and the description of "Risks you should be aware of" ("Risk
Description") is consistent with risks known to the Portfolio Manager that arise
in connection with the manner in which the Portfolio Manager intends to manage
the Portfolio. The Portfolio Manager further agrees to notify the Investment
Adviser and the Fund immediately in the event that the Portfolio Manager becomes
aware that the Portfolio Description for a Portfolio is inconsistent in any
material respect with the manner in which the Portfolio Manager is managing the
Portfolio, and in the event that the Risk Description is inconsistent in any
material respect with the risks known to the Portfolio Manager that arise in
connection with the manner in which the Portfolio Manager is managing the
Portfolio.
4. Expenses. The Portfolio Manager shall bear all expenses incurred by
it and its staff with respect to all activities in connection with the
performance of the Portfolio Manager's services under this Agreement, including
but not limited to salaries, overhead, travel, preparation of Board materials,
review of marketing materials, and marketing support. Each Portfolio will bear
certain other expenses to be incurred in its operation, including, but not
limited to, investment advisory fees, sub-advisory fees (other than sub-advisory
fees paid pursuant to this Agreement) and administration fees; fees for
necessary professional and brokerage services; costs of regulatory compliance;
and pro rata costs associated with maintaining the Fund's legal existence and
shareholder relations. All other expenses not specifically assumed by the
Portfolio Manager hereunder or by the Investment Adviser under the Advisory
Agreement are borne by the applicable Portfolio of the Fund. The Fund, the
Portfolio Manager and the Investment Adviser shall not be considered as partners
or participants in a joint venture.
5. Compensation. For the services provided and the expenses borne by
the Portfolio Manager pursuant to this Agreement, the Investment Adviser will
pay to the Portfolio Manager a fee in accordance with Exhibit A attached to this
Agreement. This fee will be
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computed and accrued daily and payable monthly. The fees for any month during
which this Agreement is in effect for less than the entire month shall be
pro-rated based on the number of days during such month that the Agreement was
in effect.
6. Seed Money. The Investment Adviser agrees that the Portfolio
Manager shall not be responsible for providing money for the initial
capitalization of any Portfolio.
7. Compliance.
(a) The Portfolio Manager agrees that it shall immediately notify
the Investment Adviser and the Fund (i) in the event that the SEC, CFTC, or any
banking or other regulatory body has censured the Portfolio Manager; placed
limitations upon its activities, functions or operations; suspended or revoked
its registration, if any, or ability to serve as an investment adviser; or has
commenced proceedings or an investigation that can reasonably be expected to
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 Code; 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 Code or the
Regulations thereunder. The Portfolio Manager further agrees to notify the
Investment Adviser and 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 Investment Adviser agrees that it shall immediately notify
the Portfolio Manager (i) in the event that the SEC has censured the Investment
Adviser or the Fund; placed limitations upon either of their activities,
functions, or operations; suspended or revoked the Investment 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 Code; or
(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 Code or
the Regulations thereunder.
8. Independent Contractor. The Portfolio Manager shall for all
purposes herein be deemed to be an independent contractor and shall, unless
otherwise expressly provided herein or authorized by the Investment Adviser from
time to time, have no authority to act for or represent the Investment 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.
9. Books and Records. In compliance with the requirements of and to
the extent required by Rule 31a-3 under the 1940 Act, the Portfolio Manager
hereby agrees that all records which it maintains for the Portfolios 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 Investment Adviser's request, although the
Portfolio Manager may, at its own expense, make and retain a copy of such
records.
10. Cooperation. Each party to this Agreement agrees to cooperate with
each other party and with all appropriate governmental authorities having the
requisite jurisdiction
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(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 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,
provided, however, that the Portfolio Manager shall not be liable for any losses
to the Fund resulting from the Fund's direction, or from the Fund's disapproval
of any action proposed to be taken by the Portfolio Manager.
12. Services Not Exclusive. It is understood that the services of the
Portfolio Manager and its employees are not exclusive, and nothing in this
Agreement shall prevent the Portfolio Manager (or its employees or 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.
13. Liability. Except as may otherwise be required by the 1940 Act or
the rules thereunder or other applicable law, the Fund and the Investment
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. Notwithstanding the foregoing, the Portfolio Manager may be liable to
the Fund for acts of good faith and nothing contained in this Agreement shall
constitute a waiver or limitation of rights that the Fund may have under federal
or state securities laws.
14. Indemnification.
(a) The Portfolio Manager agrees to indemnify and hold harmless,
the Investment Adviser, any affiliated person within the meaning of Section
2(a)(3) of the 1940 Act ("affiliated person") of the Investment Adviser, and
each person, if any, who, within the meaning of Section 15 of the 1933 Act,
controls ("controlling person") the Investment Adviser (collectively, "PL
Indemnified Persons") against any and all losses, claims, damages, liabilities
or litigation (including reasonable legal and other expenses), to which the
Investment Adviser or such affiliated person or controlling person may become
subject under the 1933 Act, 1940 Act, the Investment Advisers Act, under any
other statute, at common law or otherwise, arising out of the Portfolio
Manager's responsibilities to the Fund which may be based upon any willful
misfeasance, bad faith, negligence, or reckless disregard of, the Portfolio
Manager's obligations and/or duties under this Agreement by the Portfolio
Manager or by any of its directors, officers or employees, or any affiliate
acting on behalf of the Portfolio Manager (other than a PL Indemnified Person),
provided, however, that in no case is the Portfolio Manager's indemnity in favor
of the Investment Adviser or any affiliated person or controlling person of the
Investment 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 duties, or by reason of his
reckless disregard of obligations and duties under this Agreement.
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(b) The Investment 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
Investment Advisers Act, under any other statute, at common law or otherwise,
arising out of the Investment Adviser's responsibilities as Investment Adviser
of the Fund which may be based upon any willful misfeasance, bad faith or
negligence by the Investment Adviser, any of its directors, officers, or
employees or any affiliate acting on behalf of the Investment Adviser (other
than a Portfolio Manager Indemnified Person), provided however, that in no case
is the Investment Adviser's indemnity 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.
15. Duration and Termination. This Agreement shall become effective as
of the date of execution first written above, and shall continue in effect for
two years and continue thereafter on an annual basis with respect to each
Portfolio; provided that such annual continuance is specifically approved at
least annually (a) by the vote of a majority of the Board, 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 who are not
parties to this Agreement or "interested persons" (as such term is defined in
the ▇▇▇▇ ▇▇▇) of the Fund, the Investment Adviser, or the Portfolio Manager,
cast in person at a meeting called for the purpose of voting on such approval.
This Agreement may be terminated with respect to any Portfolio:
(a) by the Fund at any time with respect to the services provided
by the Portfolio Manager, without the payment of any penalty, by vote of a
majority of the Board 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, upon (60) sixty
days prior written notice to the Portfolio Manager and the Investment Adviser;
(b) by the Portfolio Manager at any time, without the payment of
any penalty, upon (60) sixty days prior written notice to the Investment Adviser
and the Fund.
(c) by the Investment Adviser at any time, without the payment of
any penalty, upon (60) sixty days prior written notice to the Portfolio Manager
and the Fund.
This Agreement will terminate automatically in event of its assignment
under the 1940 Act and any rules adopted by the SEC thereunder, but shall not
terminate in connection with any transaction not deemed an assignment. In the
event this Agreement is terminated or is not approved in the manner described
above, the Sections or Paragraphs numbered 2(g) for a period of six years, and
2(m), 9, 10, 13, 14, 16 , 17, 18 and 19 of this Agreement as well as any
applicable provision of this Paragraph numbered 15 shall remain in effect.
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16. Use of Name.
(a) It is understood that the name "Pacific Life Insurance Company"
and "Pacific Life" and "Pacific Select Fund" and any derivative thereof or logo
associated with those names are the valuable property of the Investment Adviser
and its affiliates, and that the Portfolio Manager shall not use such names (or
derivatives or logos) without the prior written approval of the Investment
Adviser and only so long as the Investment Adviser is an investment adviser to
the Fund and/or the Portfolios. Upon termination of this Agreement, the
Portfolio Manager shall forthwith cease to use such name (or derivative or
logo).
(b) It is understood that the name ▇▇▇ ▇▇▇▇▇▇ Asset Management Inc.
or any logo associated with those names is the valuable property of the
Portfolio Manager and that the Fund and the Investment Adviser have the right to
use such name (or derivative or logo), in the Fund's prospectus, SAI and
Registration Statement or other filings, forms or reports required under
applicable state or federal securities, insurance, or other law, for so long as
the Portfolio Manager is a Portfolio Manager to the Fund and/or one of the
Portfolios, provided, however, that the Fund may continue to use the name of the
Portfolio Manager in its Registrations Statement and other documents to the
extent deemed necessary by the Fund to comply with disclosure obligations under
applicable law and regulation. Neither the Fund nor the Investment Adviser shall
use the Portfolio Manager's name or logo in promotional or sales related
materials prepared by or on behalf of the Investment Adviser or the Fund,
without prior review and approval by the Portfolio Manager, which may not be
unreasonably withheld. Upon termination of this Agreement, the Fund and the
Investment Adviser shall forthwith cease to use such names (and logo), except as
provided for herein.
17. Limitation of Liability.
A copy of the Declaration of Trust for the Fund is on file with the
Secretary of the State of Massachusetts. The Declaration of Trust has been
executed on behalf of the Fund by a Trustee of the Fund in his capacity as
Trustee of the Fund and not individually. The obligations of this Agreement with
respect to each Portfolio shall be binding upon the assets and property of each
such Portfolio individually, and not jointly, and shall not be binding upon any
Trustee, officer, employee, agent or shareholder, whether past, present, or
future, of the Fund individually, or upon the Fund generally or upon any other
portfolio of the Fund.
18. Notices.
All notices and other communications hereunder shall be in writing
sent by facsimile first, if practicable, but shall only be deemed given if
delivered in person or by messenger, cable, certified mail with return receipt,
or by a reputable overnight delivery service which provides evidence of receipt
to the parties at the following addresses (or at such other address or number
for a party as shall be specified by like notice):
A. if to the Portfolio Manager, to:
__________________________
__________________________
____________________
Facsimile transmission number: ________________
Attention:
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B. if to the Investment Adviser, to:
Pacific Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile transmission number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
C. if to the Fund, to:
Pacific Select Fund
c/o Pacific Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile transmission number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
19. Miscellaneous.
(a) This Agreement shall be governed by the laws of California,
without regard to the conflict of law principles thereof, 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 ▇▇▇▇ ▇▇▇.
(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 and
under the 1940 Act, 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
By: By:
Name: Name:
Title: Title:
------------------------------------------
By: By:
Name: Name:
Title: Title:
PACIFIC SELECT FUND
By: By:
Name: Name:
Title: Title:
12
Exhibit A
PACIFIC SELECT FUND
FEE SCHEDULE
Effective May 1, 2003
Portfolio: Real Estate Portfolio, ▇▇▇▇▇▇▇▇ Portfolio and Mid-Cap Growth
Portfolio
The Investment Adviser will pay to the Portfolio Manager a monthly fee
based on an annual percentage of the combined average daily net assets of the
Real Estate Portfolio, ▇▇▇▇▇▇▇▇ Portfolio and Mid-Cap Growth Portfolio of
Pacific Select Fund and the ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Fund and ▇▇ ▇▇▇ ▇▇▇▇▇▇
Mid-Cap Growth Fund of the Pacific Funds according to the following schedule:
Rate (%) Break Point (assets)
----------------------------------------------
First $2 billion 0.35%
$2-3 billion 0.32%
Excess over $3 billion 0.30%
The fees for services shall be prorated for any portion of a year in which the
Agreement is not effective.
13