EXHIBIT (d)(31)
PORTFOLIO MANAGEMENT AGREEMENT
AGREEMENT made effective this 30th day of November, 2001 among Pacific Life
Insurance Company, ("Investment Adviser"), a California corporation, and Xxxxxx
Investment Management, Inc. ("Portfolio Manager"), a Delaware Limited Liability
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"); and
WHEREAS, the Fund currently offers multiple Portfolios, one or more of
which the Fund and Investment 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; and
WHEREAS, the Investment 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 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; and
WHEREAS, the Fund and the Investment Adviser desire to retain 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 between the Fund, the Investment
Adviser, and the Portfolio Manager as follows:
1. Appointment. The Fund and the Investment Adviser hereby appoint Xxxxxx
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Investment Management, LLC to act as Portfolio Manager to provide investment
advisory services to the series of Portfolios listed on the Fee Schedule
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 other than the
Portfolios, the Investment Adviser shall notify the Portfolio Manager in writing
and shall revise the Fee Schedule to reflect such additional Portfolio(s). If
the Portfolio Manager is willing to render such services, it shall notify the
Fund and Investment Adviser in writing, whereupon such Portfolio shall become a
Portfolio hereunder, and be subject to this Agreement.
2. Portfolio Manager Duties.
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(a) Subject to the supervision of the Fund's Board of Trustees 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:
(b) 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 Fund,
to the Investment Adviser (as provided to the Portfolio Manager by the
Investment Adviser), or to the Portfolio Manager), (2) with all other applicable
federal and state laws and regulations pertaining to investment vehicles
underlying variable annuity and/or variable life insurance contracts, (3) with
any applicable written procedures, policies and guidelines adopted by the Fund's
Board of Trustees and furnished to Portfolio Manager, (4) with 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) 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 Investment 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 Investment Adviser, (6) Section 851(b)(2) and
(3) Subchapter M of the Internal Revenue Code of 1986, as amended (the "Code"),
and (7) the provisions of Section 817(h) of the Code, applicable to the
Portfolio.
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(c) 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 Internal Revenue 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.
(d) 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 supplemented from time to time and furnished to
the Portfolio Manager. 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 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 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 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"), 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 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 of Trustees of the Fund, indicating the brokers, dealers or
FCMs to which such allocations have been made the basis therefor.
(e) 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 Fund's Registration Statement as
furnished to 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.
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(f) 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.
(g) 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 Procedures and/or 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. 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 procedures, as they may be amended from time to time. It is
understood that the Portfolio Manager is not responsible for the administrative
affairs of any Pacific Select Fund Portfolio, including the determination of its
net asset value.
(h) Will maintain and preserve such records related to each
Portfolio's transactions as required under the 1940 Act and the Investment
Advisers Act. The Portfolio Manager is not responsible for any other records of
the Pacific Select Fund. 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 to comply with requirements of the 1940 Act and the
Investment 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.
(i) 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 Fund's Portfolios, and will furnish the Fund's Board of Trustees with
respect to the Portfolios such periodic and special reports as the Trustees and
the Investment Adviser may reasonably request, including, but not limited to, 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 Investment Company Act of 1940, 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.
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(j) Portfolio Manager shall provide to Investment Adviser a copy of
Portfolio Manager's Form ADV, and any supplements or amendments thereto, as
filed with the Securities and Exchange Commission, on an annual basis, (or more
frequently if requested by the Investment Adviser or the Fund's Board of
Trustees). The Portfolio Manager will provide a list of persons who Portfolio
Manager wishes to have authorized to give written and/or oral instructions to
Custodians of assets for the Portfolios.
(k) Portfolio Manager shall be responsible for the preparation and
filing of Schedule 13G and Form 13F on behalf of the Fund reflecting holdings
over which Fund Manager and its affiliates have investment direction.
(l) 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, 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
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 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 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 of Trustees of the
Fund has authorized such disclosure, or if such disclosure is
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required by applicable federal or state law or regulations or regulatory
authorities having the requisite authority.
3. Disclosure about Portfolio Manager. The Portfolio Manager has
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reviewed the current Registration Statement for the Fund and agrees to promptly
review future Registration Statements, including any supplements thereto which
relate to Portfolio Manager , 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 about the Portfolio Manager or any performance information the
Portfolio Manager provides that is included in or serves as the basis for
information included in the Registration Statement for the Fund, 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 represents and warrants that it is a duly registered investment adviser
under the Investment Advisers Act and a duly registered investment adviser in
all states in which the Portfolio Manager is required to be registered.
4. Expenses. The Portfolio Manager shall bear all expenses incurred by
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it and its staff and for their activities in connection with the performance if
its 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.
5. Compensation. For the services provided and the expenses borne by the
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Portfolio Manager pursuant to this Agreement, the Investment 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.
These fees for services shall be prorated for any portion of a year in which the
Agreement is not effective.
6. Seed Money. The Investment Adviser agrees that the Portfolio Manager
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shall not be responsible for providing money for the initial capitalization of
any Portfolio.
7. Compliance.
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(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
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believing that a Portfolio 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 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 Internal
Revenue 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.
8. 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 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
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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
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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.
11. 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,
provided, however, that 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
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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,
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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
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the rules thereunder or other applicable law, the Fund and Investment Adviser
agree that Portfolio Manager, any affiliated person of Portfolio Manager, and
each person, if any, who, within the meaning of Section 15 of the 1933 Act,
controls 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
misfeasance, bad faith, or negligence in the performance of Portfolio Manager's
duties, or by reason of reckless disregard of 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.
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(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 (i) may be based upon any willful misfeasance, bad faith,
gross 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), or (ii) may be based
upon any untrue statement of a material fact contained in a registration
statement or prospectus covering the Fund, or any amendment thereof or any
supplement thereto, or the 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 Investment Adviser, the Fund, or any affiliated person of the
Fund by the Portfolio Manager or any affiliated person of the Portfolio Manager
(other than a PL Indemnified Person) for the purpose of inclusion in the Fund's
Registration Statement, 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.
(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
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(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 (i) may be based upon any misfeasance, nonfeasance, bad faith
or negligence by the Investment Adviser, any of its employees or any affiliate
acting on behalf of the Investment 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 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 Investment Adviser or any
affiliated person of the Investment Adviser by a Portfolio Manager Indemnified
Person (other than an Investment Adviser Indemnified Person) for the purpose of
inclusion in the Fund's Registration Statement, 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
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of the date of execution first written above, and shall continue in effect until
December 31, 2003 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 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 0000 Xxx) 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, 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) 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, forfeiture, compulsory buyout amount or performance of any other
obligation which could deter termination, 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, forfeiture, compulsory buyout amount or performance of any other
obligation which could deter termination, upon (60) sixty days prior written
notice to the Portfolio Manager and the Fund.
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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) for a period of six years, and 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.
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(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 the Investment Advisory
Agreement between the Fund and the Investment Adviser, the Portfolio Manager
shall forthwith cease to use such name (or derivative or logo).
(b) It is understood that the name "Xxxxxx" or "Xxxxxx Investments"
or logo associated with those names is the valuable property of the Portfolio
Manager and that the Fund and 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, and for so long as the Portfolio
Manager is a Portfolio Manager to the Fund and/or one of the Portfolios.
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).
17. Limitation of Liability.
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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
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. 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):
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A. if to the Portfolio Manager, to:
Xxxxxx Investment Management, LLC.
0 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile transmission number: (000) 000-0000
Attention: General Counsel
B. if to the Investment Adviser, to:
Pacific Life Insurance Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Facsimile transmission number: (000) 000-0000
Attention: Xxxxx X. Xxxxx
C. if to the Fund, to:
Pacific Select Fund
c/o Pacific Life Insurance Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Facsimile transmission number: (000) 000-0000
Attention: Xxxxx X. Xxxxx
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 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
0000 Xxx.
(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.
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(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.
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: /s/ Xxxxxx X. Milfs By: /s/ Xxxxx X. Xxxxxxx
-------------------- ---------------------
Name: Xxxxxx X. Milfs Name: Xxxxx X. Xxxxxxx
Title: Vice President & Secretary Title: President
XXXXXX INVESTMENT MANAGEMENT, LLC
By: /s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxx Xxxxxx
-------------------- ---------------------
Name: Xxxxxxx Xxxxxxxx Name: Xxxx Xxxxxx
Title: Managing Director Title: Senior Vice President
PACIFIC SELECT FUND
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: President
12
PACIFIC SELECT FUND
FEE SCHEDULE
XXXXXX INVESTMENT MANAGEMENT, LLC
Effective: December 1, 2001
----------------
Portfolio: Aggressive Equity
The Investment Adviser will pay to the Portfolio Manager a monthly fee
based on an annual percentage of the average daily net assets of the Aggressive
Equity Portfolio according to the following schedule:
Rate (%) Break Point (assets)
--------------------------------
0.60% First $100 million
0.45% Next $400 million
0.40% On excess
Portfolio: Equity
The Investment Adviser will pay to the Portfolio Manager a monthly fee
based on an annual percentage of the average daily net assets of the Equity
Portfolio according to the following schedule:
Rate (%) Break Point (assets)
--------------------------------
0.35% First $100 million
0.30% Next $100 million
0.25% Next $800 million
0.20% On excess
The fees for services shall be prorated for any portion of a year in which
the Agreement is not effective.
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PACIFIC SELECT FUND
FEE SCHEDULE
XXXXXX INVESTMENT MANAGEMENT, LLC
Effective: January 1, 2002
---------------
Portfolio: Aggressive Equity
The Investment Adviser will pay to the Portfolio Manager a monthly fee
based on an annual percentage of the average daily net assets of the Aggressive
Equity Portfolio according to the following schedule:
Rate (%) Break Point (assets)
--------------------------------
0.60% First $100 million
0.45% Next $400 million
0.40% On excess
Portfolio: Equity
The Investment Adviser will pay to the Portfolio Manager a monthly fee
based on an annual percentage of the average daily net assets of the Equity
Portfolio according to the following schedule:
Rate (%) Break Point (assets)
--------------------------------
0.35% First $100 million
0.30% Next $100 million
0.25% Next $800 million
0.20% On excess
Portfolio: Equity Income
The Investment Adviser will pay to the Portfolio Manager a monthly fee
based on an annual percentage of the average daily net assets of the Equity
Income Portfolio according to the following schedule:
Rate (%) Break Point (assets)
--------------------------------
0.65% First $150 million
0.60% Next $150 million
0.55% On Excess
Portfolio: Research
The Investment Adviser will pay to the Portfolio Manager a monthly fee
based on an annual percentage of the average daily net assets of the Research
Portfolio according to the following schedule:
Rate (%) Break Point (assets)
--------------------------------
0.75% First $250 million
0.65% On Excess
The fees for services shall be prorated for any portion of a year in which
the Agreement is not effective.
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