Exhibit (d)(8)
FUND MANAGEMENT AGREEMENT
AGREEMENT made effective the 1st day of July, 2001 among Pacific Life
Insurance Company, ("Adviser"), a California corporation, and Massachusetts
Financial Services Company, doing business as MFS Investment Management, a
corporation organized under the laws of the State of Delaware ("MFS" or "Fund
Manager"), and Pacific Funds , a Delaware Business Trust.
WHEREAS, Pacific Funds 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, Pacific Funds is authorized to issue shares of beneficial interest
("Shares") in separate funds, with each such fund representing interests in a
separate fund; and
WHEREAS, Pacific Funds currently offers multiple Funds, one or more of
which Pacific Funds and Adviser desire to retain the Fund Manager to render
investment advisory services hereunder, and with respect to which the Fund
Manager is willing to do so; and
WHEREAS, the Adviser is registered as an investment adviser under the
Investment Advisers Act of 1940 ("Advisers Act"); and
WHEREAS, the Fund Manager is registered as an investment adviser under the
Advisers Act; and
WHEREAS, Pacific Funds has retained the Adviser to render investment
advisory services to various funds of Pacific Funds pursuant to an Advisory
Agreement, as amended, and such Agreement authorizes the Adviser to engage a
fund manager to discharge the Adviser's responsibilities with respect to the
investment management of such funds, a copy of which has been provided to the
Fund Manager and is incorporated herein by reference; and
WHEREAS, Pacific Funds and the Adviser desire to retain MFS to furnish
investment advisory services to one or more funds of Pacific Funds, and the Fund
Manager is willing to furnish such services to such funds 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 Pacific Funds, the Adviser, and
the Fund Manager as follows:
1. Appointment. Pacific Funds and the Adviser hereby appoint MFS to act
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as fund manager to provide investment advisory services to the series of funds
listed on the Fee Schedule attached hereto (hereinafter the "Funds") for the
periods and on the terms set forth in this Agreement. The Fund 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 Fund Manager to render
investment advisory services to one or more funds other than the Funds, the
Adviser shall notify the Fund Manager in
writing and shall revise the Fee Schedule to reflect such additional Fund(s). If
the Fund Manager is willing to render such services, it shall notify Pacific
Funds and Adviser in writing, whereupon such Fund shall become a Fund hereunder,
and be subject to this Agreement.
2. Fund Manager Duties. Subject to the supervision of Pacific Funds'
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Board of Trustees and the Adviser, the Fund Manager will provide a continuous
investment program for the Funds and determine the composition of the assets of
the Funds. The Fund 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
Funds' 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 Funds, when these
transactions should be executed, and what portion of the assets of the Funds
should be held in the various securities and other investments in which it may
invest, and the Fund Manager is hereby authorized to execute and perform such
services on behalf of the Funds. To the extent permitted by the written
investment policies of the Funds, the Fund Manager shall make decisions for the
Funds 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
Funds. The Fund Manager is authorized to exercise tender offers, exchange
offers and to vote proxies on behalf of the Fund, each as the Fund Manager
determines is in the best interest of the Fund. In performing these duties, the
Fund Manager:
(a) Will manage each of the Funds so that it will meet the requirements
of Section 851(b)(2) and (3) and Subchapter M of the Internal Revenue Code.
(b) Shall conform with (i) 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
Pacific Funds, the Adviser or the Fund Manager), (ii) with all other applicable
federal and state laws and regulations pertaining to registered open-end
investment management companies, (iii) with any applicable written procedures,
policies and guidelines adopted by Pacific Funds' Board of Trustees and
furnished to Fund Manager, (iv) with the Funds' objectives, investment policies
and investment restrictions as stated in Pacific Funds' Prospectus and Statement
of Additional Information as supplemented or amended from time to time, as
furnished to the Fund Manager, and (v) with the provisions of Pacific Funds'
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
Adviser agrees to provide promptly to the Fund Manager a copy of the documents
and other materials mentioned above and all changes made to such documents,
together with a list of companies the securities of which are not to be bought
or sold for the Funds (such list shall include each security name, cusip number,
sedol and/or applicable ticker, if applicable) and a list of affiliated brokers
and underwriters for reporting transactions under applicable provisions of the
1940 Act. These documents, other materials and any amendments thereto shall not
be deemed effective with respect to the Fund Manager until three business days
after the Fund Manager's receipt thereof. Until the Adviser delivers any
supplements or amendments to the Fund Manager, the Fund Manager shall be fully
protected in relying on Pacific Funds' Registration Statement previously
furnished to the Fund Manager by the Adviser.
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(c) Is responsible, in connection with its responsibilities under this
Section 2, for decisions to buy and sell securities and other investments for
the Funds, for broker-dealer and futures commission merchant ("FCM") selection,
and for negotiation of commission rates. The Fund Manager's primary
consideration in effecting a security or other transaction will be to obtain the
best execution for the Funds, taking into account the factors specified in the
Prospectus and Statement of Additional Information for Pacific Funds, as they
may be amended or supplemented from time to time and furnished to the Fund
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 Fund
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 Fund to pay a broker or dealer, acting as agent, for effecting a fund
transaction at a price in excess of the amount of commission another broker or
dealer would have charged for effecting that transaction, if the Fund 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
Fund Manager's (or its affiliates) overall responsibilities with respect to the
Funds 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 Fund Manager is further authorized to place orders on behalf
of the Funds through the Fund Manager if the Fund 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 Funds or the Fund Manager. Such
allocation shall be in such amounts and proportions as the Fund Manager shall
determine consistent with the above standards, and, upon request, the Fund
Manager will report on said allocation to the Adviser and Board of Trustees of
Pacific Funds, indicating the brokers, dealers or FCMs to which such allocations
have been made and the basis therefor.
(d) May, on occasions when the purchase or sale of a security is deemed
to be in the best interest of a Fund 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 Pacific Funds' Registration Statement as furnished to Fund
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 Fund
Manager in a manner that is fair and equitable and consistent with the Fund
Manager's fiduciary obligations to Pacific Funds and to such other clients.
(e) Will, in connection with the purchase and sale of securities for
the Funds, together with the Adviser, arrange for the transmission to the
custodian and recordkeeping agent for Pacific Funds, 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 Fund, as may be reasonably necessary to
enable the custodian and recordkeeping agent to perform its administrative and
recordkeeping responsibilities with respect to the Funds, and with respect to
Fund securities to be purchased or sold through the Depository Trust Company,
will arrange for the automatic transmission of the
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confirmation of such trades to Pacific Funds' custodian, and recordkeeping
agent, and, if required, the Adviser.
(f) Will assist the custodian and recordkeeping agent for Pacific Funds
in determining or confirming, consistent with the procedures and policies stated
in the Registration Statement for Pacific Funds, the value of any fund
securities or other assets of the Funds for which the custodian and
recordkeeping agent seeks assistance from the Fund Manager or identifies for
review by the Fund Manager. This includes (but is not limited to) obtaining bids
and offers or quotes from broker/dealers or market-makers, verifying pricing and
providing recommendations as to fair valuations and providing information to
assist Pacific Funds in making fair valuations in accordance with Pacific Funds
procedures, as they may be amended from time to time.
(g) Will maintain and preserve such records related to each Fund's
transactions as required under the 1940 Act and the Advisers Act "Required
Records". The Fund Manager will make available to Pacific Funds and the Adviser
promptly upon request, any of the Fund's investment records and ledgers
maintained by the Fund Manager (which shall not include the records and ledgers
maintained by the custodian and recordkeeping agent for Pacific Funds), as are
necessary to assist Pacific Funds 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 Required
Records which may be requested in order to ascertain whether the operations of
Pacific Funds are being conducted in a manner consistent with applicable laws
and regulations.
(h) Will regularly report to Pacific Funds' Board of Trustees on the
investment program for the Funds and the issuers and securities represented in
the Fundsfunds, and will furnish Pacific Funds' Board of Trustees with respect
to the Funds such periodic and special reports as the Trustees and the Adviser
may reasonably request, including, but not limited to reports regarding
compliance with Pacific Funds' 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, and compliance with the Fund Manager's Code of
Ethics, and such other procedures or requirements that Pacific Funds or Adviser
may reasonably request from time to time.
(i) Will not disclose or use any records or information obtained
pursuant to this Agreement (excluding investment research and investment advice)
in any manner whatsoever except as expressly authorized in this Agreement or in
the ordinary course of business in connection with placing orders for the
purchase and sale of securities 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 Pacific Funds 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. Pacific Funds and the Adviser will
not disclose or use any records or information respecting the Fund 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
Pacific Funds 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.
(j) Shall not permit any employee of the Fund Manager to have any
material connection with the handling of the Funds 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.
(k) Shall provide to Adviser a complete copy of Fund Manager's Form
ADV as filed with the Securities and Exchange Commission and a list of persons
who Fund Manager wishes to have authorized to give written and/or oral
instructions to Custodians of Pacific Funds assets for the Funds. The Adviser
has received a current copy of the Fund 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 Pacific Funds' Board
of Trustees) the Fund Manager agrees to provide the Adviser with current copies
of the Fund Manager's Form ADV, and any supplements or amendments thereto, as
filed with the SEC.
3. Disclosure about Fund Manager. The Fund Manager has reviewed the
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current Registration Statement for Pacific Funds and agrees to promptly review
future Registration Statements, including any supplements thereto which relate
to Fund 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 Fund Manager or any performance information the Fund Manager provides that
is included in the Registration Statement for Pacific Funds, 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. Fund Manager represents and
warrants that any performance information provided by it to the Adviser or
Pacific Funds in writing, which is used as the basis for calculating adjusted
performance, shall be true and correct, does not contain any misstatement of a
material fact or omit any statement of material fact which was required to be
stated therein or necessary to make the information provided to the Adviser or
Pacific Funds not misleading. The Fund Manager further represents and warrants
that to the
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extent that any statements or omissions made in any Registration Statement for
Pacific Funds, or any amendment or supplement thereto, are made in direct
reliance upon and in direct conformity with specific information furnished by
the Fund Manager expressly for use therein ("Furnished Information"), such
Registration Statement and any amendments or supplements thereto will, with
respect to the Furnished Information, when they become effective, conform in all
material respects to the requirements of the Securities Act of 1933 and the
rules and regulations of the Commission thereunder (the "1933 Act") and the Act
and will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading. The Fund Manager 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 Fund Manager is
required to be registered.
4. Expenses. The Fund Manager shall bear all expenses incurred by it and
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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, marketing
support. Each Fund 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
Pacific Funds legal existence and shareholder relations. All other expenses not
specifically assumed by the Fund Manager hereunder or by the Adviser under the
Advisory Agreement are borne by the applicable Fund of Pacific Funds.
5. Compensation. For the services provided and the expenses borne by the
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Fund Manager pursuant to this Agreement, the Adviser will pay to the Fund
Manager a fee in accordance with the Fee Schedule attached to this Agreement.
This fee will be computed and accrued daily and payable monthly. The monthly
management fee shall be paid to the Fund Manager not later than the 15th
business day of the month following the month in which such services were
rendered and shall be based upon the average net asset values of Funds for the
month as determined as of the close of each business day of the month.
Documentation that verifies the calculation of such fee will be provided upon
request of the Fund Manager. If the management of the Funds by the Fund Manager
commences or terminates at any time other than the beginning or end of a month,
the management fee shall be prorated for that portion of such month.
6. Seed Money. The Adviser agrees that the Fund Manager shall not be
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responsible for providing money for the initial capitalization of any Fund.
7. Compliance.
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(a) The Fund Manager agrees that it shall immediately notify the
Adviser and Pacific Funds (i) in the event that the SEC, CFTC, or any banking or
other regulatory body has censured the Fund 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, and (ii) upon having a reasonable basis for believing that a Fund has
ceased to qualify or might not qualify as a regulated investment company under
Subchapter M of the Internal Revenue Code. The Fund Manager further agrees to
notify the Adviser and Pacific Funds immediately of any material fact known to
the Fund Manager respecting or relating to the
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Fund Manager that is not contained in the Registration Statement or prospectus
for Pacific Funds, 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 Fund
Manager (i) in the event that the SEC has censured the Adviser or Pacific Funds;
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, and (ii) upon having a reasonable basis for believing that a Fund has
ceased to qualify or might not qualify as a regulated investment company under
Subchapter M of the Internal Revenue Code.
8. Independent Contractor. The Fund Manager shall for all purposes herein
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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 Fund Manager understands that unless provided herein or
authorized from time to time by Pacific Funds, the Fund Manager shall have no
authority to act for or represent Pacific Funds in any way or otherwise be
deemed Pacific Funds' Agent.
9. Books and Records. In compliance with the requirements of Rule 31a-3
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under the 1940 Act, the Fund Manager hereby agrees that all records which it
maintains for the Funds are the property of Pacific Funds and further agrees to
surrender promptly to Pacific Funds any of such records upon Pacific Funds' or
the Adviser's request, although the Fund Manager may, at its own expense, make
and retain a copy of such records.
10. Cooperation. Each party to this Agreement agrees to reasonably
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cooperate with each other party and with all appropriate governmental
authorities having the requisite jurisdiction (including, but not limited to,
the SEC and state insurance authorities) in connection with any investigation or
inquiry relating to this Agreement or Pacific Funds.
11. Responsibility and Control. Notwithstanding any other provision of
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this Agreement, it is understood and agreed that Pacific Funds 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 Fund Manager.
12. Services Not Exclusive. It is understood that the services of the
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Fund Manager and its employees are not exclusive, and nothing in this Agreement
shall prevent the Fund 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 Funds)
or from engaging in other activities.
13. 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,
Pacific Funds and the Adviser agree that the Fund Manager, any affiliated person
of the Fund Manager, and each person, if any, who, within the meaning of Section
15 of the 1933 Act, controls the Fund 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
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willful misfeasance, bad faith, or gross negligence in the performance of the
Fund Manager's duties, or by reason of reckless disregard of the Fund Manager's
obligations and duties under this Agreement. Notwithstanding the foregoing, the
Fund Manager may be liable to Pacific Funds for acts of good faith and nothing
contained in this Agreement shall constitute a waiver or limitation of rights
that Pacific Funds may have under federal or state securities laws.
14. Indemnification.
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(a) The Fund 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, "PL Indemnified Persons") against any and all losses,
claims, damages, liabilities or litigation (including 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 Fund Manager's responsibilities
to Pacific Funds which (i) may be based upon any misfeasance, non-feasance, bad
faith, negligence or reckless disregard of the Fund Manager's obligations and/or
duties under this Agreement by the Fund Managers or by any of its directors,
officers or employees, or any affiliate acting on behalf of the Fund Manager
(other than a PL 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 Pacific Funds, 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 as provided
in Section 3 hereof to the Adviser, Pacific Funds, or any affiliated person of
Pacific Funds by the Fund Manager or any affiliated person of the Fund Manager
(other than a PL Indemnified Person); provided, however, that in no case is the
Fund 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
duties, or by reason of his reckless disregard of obligation and duties under
this Agreement.
(b) The Adviser agrees to indemnify and hold harmless the Fund
Manager, any affiliated person within the meaning of Section 2(a)(3) of the 1940
Act of the Fund Manager and each person, if any, who, within the meaning of
Section 15 of the 1933 Act controls ("controlling person") the Fund Manager
(collectively, "Fund Manager Indemnified Persons") against any and all losses,
claims, damages, liabilities or litigation (including legal and other expenses)
to which a Fund 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 Pacific
Funds which (i) may be based upon any misfeasance, nonfeasance, bad faith or
negligence by the Adviser, any of its employees or any affiliate acting on
behalf of the Adviser (other than a Fund 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
Pacific Funds or any Fund, 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 as provided in Section 3 hereof Pacific Funds or the Adviser or any
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affiliated person of the Adviser by a Fund 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 Fund 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
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the date of execution first written above, and shall continue in effect until
December 31, 2002 and continue thereafter on an annual basis with respect to
each Fund; provided that such annual continuance is specifically approved at
least annually (a) by the vote of a majority of the Board of Trustees of Pacific
Funds, or (b) by the vote of a majority of the outstanding voting shares of each
Fund, and provided that continuance is also approved by the vote of a majority
of the Board of Trustees of Pacific Funds who are not parties to this Agreement
or "interested persons" (as such term is defined in the 1940 Act) of Pacific
Funds, the Adviser, or the Fund 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
0000 Xxx) of Pacific Funds. This Agreement may be terminated with respect to
any Fund:
(a) by Pacific Funds at any time with respect to the services provided
by the Fund 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 Pacific
Funds or by a vote of a majority of the outstanding voting shares of Pacific
Funds or, with respect to a particular Fund, by vote of a majority of the
outstanding voting shares of such Fund, on 60 days' written notice to the Fund
Manager and the Adviser;
(b) by the Fund 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 Pacific Funds.
(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 Fund Manager
and Pacific Funds.
Any approval of this Agreement by the holders of a majority of the
outstanding shares (as defined in the 0000 Xxx) of a particular Fund shall be
effective to continue this Agreement with respect to such Fund notwithstanding
(a) that this Agreement has not been approved by the holders of a majority of
the outstanding shares of any other Fund or (b) that this Agreement has not been
approved by the vote of a majority of the outstanding shares of Pacific Funds,
unless such approval shall be required by any other applicable law or otherwise.
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.
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16. Use of Name.
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(a) It is understood that the name "Pacific Life Insurance Company"
and "Pacific Life", and "Pacific Funds" and any derivative thereof or logo
associated with those names are the valuable property of the Adviser and its
affiliates. Fund Manager shall not use such names (or derivatives or logos)
without the prior written approval of the Adviser and only for so long as the
Adviser is an investment adviser to Pacific Funds and/or the Funds. Upon
termination of the Investment Advisory Agreement between Pacific Funds and the
Adviser, the Fund Manager shall forthwith cease to use such name (or derivative
or logo).
(b) It is understood that the name "Massachusetts Financial Services
Company" or "MFS Investment Management" or "MFS" or any derivative thereof or
logo associated with those names are the valuable property of the Fund Manager
and that Pacific Funds and Adviser have the right to use such name (or
derivative or logo), in Pacific Funds' 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 Fund Manager
is a Fund Manager to one or more Funds of Pacific Funds. Neither Pacific Funds
nor the Adviser shall use the Fund Manager's name or logo in promotional or
sales related materials prepared by or on behalf of the Adviser or Pacific
Funds, without prior review and written approval by the Fund Manager. Upon
termination of this Agreement among Pacific Funds, the Adviser and the Fund
Manager, Pacific Funds and the Adviser shall forthwith cease to use such name
(or logo).
17. Limitation of Liability.
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A copy of the Agreement and Declaration of Trust for Pacific Funds is
on file with the Secretary of the State of Delaware. The Agreement and
Declaration of Trust has been executed on behalf of Pacific Funds by a Trustee
of Pacific Funds in his capacity as Trustee of Pacific Funds and not
individually. The obligations of this Agreement shall be binding upon the
assets and property of Pacific Funds and shall not be binding upon any Trustee,
officer, employee, agent or shareholder, whether past, present, or future, of
Pacific Funds individually.
18. Notices
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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 Fund Manager, to:
Massachusetts Financial Services Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax # (000) 000-0000
Attention: Legal Department
Xxxxx X. XxxXxxxxx
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B. if to the 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 Pacific Funds, to:
Pacific Funds
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, 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: _______________________________
Name: Name:
Title: Title:
MASSACHUSETTS FINANCIAL SERVICES COMPANY
Attest: _________________________ By: _______________________________
Name: Name:
Title: Title:
PACIFIC FUNDS
Attest: _________________________ By: _______________________________
Name: Name:
Title: Title:
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PACIFIC FUNDS
FEE SCHEDULE
Fund: PF MFS Mid-Cap Growth Fund
The Adviser will pay to the Fund Manager a monthly fee based on an
annual percentage of the combined average daily net assets of the PF
MFS Mid-Cap Growth Fund and the Capital Opportunities and Mid-Cap
Growth Portfolios of the Pacific Select Fund, according to the
following schedule:
Rate (%) Break Point (assets)
--------------------------------
.40% On first $300 million
.375% On next $300 million
.35% On next $300 million
.325% On next $600 million
.25% On excess
Fund: PF MFS Global Growth Fund
The Adviser will pay to the Fund Manager a monthly fee based on an
annual percentage of the combined daily net assets of the PF MFS Global
Growth Fund and the Global Growth Portfolio of the Pacific Select Fund,
according to the following schedule:
Rate (%) Break Point (assets)
--------------------------------
.55% On first $200 million
.50% On next $300 million
.45% On next $500 million
.40% On excess
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