Exhibit (d)(5)
PORTFOLIO MANAGEMENT AGREEMENT
This Portfolio Management Agreement (this "Agreement") is made
effective this April 3, 2002 by and among Pacific Life Insurance Company
("Investment Adviser"), a California corporation, Janus Capital Management LLC
("Portfolio Manager"), a Delaware limited liability company, and Pacific Select
Fund (the "Fund"), a Massachusetts Business Trust.
WHEREAS, the Fund is registered with the Securities and Exchange
Commission ("SEC") as an open-end, management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Fund 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 Investment Adviser hereby appoint Janus
Capital Management LLC to act as Portfolio Manager to the Portfolios listed on
Exhibit A (the "Portfolios") for the periods and on the terms set forth in this
Agreement. Portfolio Manager accepts such appointment and agrees to furnish
services herein set forth for the compensation herein provided. In the event
Investment Adviser wishes to retain Portfolio Manager to render investment
advisory services to one or more portfolios, other than the Portfolios listed on
Exhibit A, Investment Adviser shall notify Portfolio Manager in writing. If
Portfolio Manager is willing to render such services, it shall notify the Fund
and Investment Adviser in writing, whereupon such portfolio(s) shall become a
Portfolio hereunder, and be subject to this Agreement.
2. PORTFOLIO MANAGER DUTIES.
(a) Portfolio Manager shall, subject to the supervision of the
Pacific Select Fund's Board of Trustees and the Investment Adviser, 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 responsible for and authorized to and shall exercise
tender offers, exchange offers and to 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 the
Fund, the Investment Adviser or the Portfolio Manager and received by the
Portfolio Manager, (2) all other applicable federal and state laws and
regulations pertaining to registered open-end investment management companies
and vehicles underlying variable annuity and/or variable life insurance
contracts, (3) any applicable written procedures, policies and guidelines
adopted by the Fund's Board of Trustees and furnished to 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, and (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. 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, procedures, policies
and guidelines previously furnished to the Portfolio Manager by the Investment
Advise, (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.
(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 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 Portfolio 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 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 and not all such
services or products may be used by the Portfolio Manager in managing the
Portfolios. 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 Adviser and Board of Trustees of The Fund, indicating
the brokers, dealers or FCMs to which such allocations have been made.
(d) Portfolio Manager shall furnish Investment Adviser
monthly, quarterly, and annual reports concerning transactions and performance
of each Portfolio in such form as may be mutually agreed upon, and agrees to
review and discuss the management of each Portfolio. Portfolio Manager shall
permit the financial statements, books and records with respect to each
Portfolio to be inspected and audited by the Investment Adviser at all
reasonable times during normal business hours. Portfolio Manager shall also
provide Investment Adviser and the Fund with such other information and reports
as may reasonably be requested by Investment Adviser and the Fund from time to
time, other than proprietary information and provided that Portfolio Manager
shall not be responsible for Fund accounting.
(e) 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) and a list of persons who Portfolio Manager wishes to have authorized
to give written and/or oral instructions to the Fund's Custodians for the
Portfolios' assets.
(f) Portfolio Manager will, in connection with the purchase
and sale of securities for the Portfolios, together with Investment Adviser,
arrange for the transmission to the custodian, and the 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 each
Portfolio, as may be reasonably necessary to enable the custodian and
recordkeeping agent to perform its administrative and recordkeeping
responsibilities with respect to the Portfolios, and, with respect to the
Portfolios' securities to be purchased or sold through the Depository Trust
Company, will arrange for the automatic transmission of the confirmation of such
trades to the Fund's custodian, recordkeeping agent, and, if required, to the
Investment Adviser.
(g) Portfolio Manager will assist the custodian and
recordkeeping agent for the Fund in determining or confirming, consistent with
the procedures and policies stated in the Registration Statement for the Fund,
the value of any of the Portfolios' securities or other assets of the Portfolios
for which the custodian and recordkeeping agent seeks assistance from Portfolio
Manager or identifies for review by Portfolio Manager.
(h) Portfolio Manager will report regularly to the Fund's
Board of Trustees on the investment program for each Portfolio and the issuers
and securities represented in each Portfolio and will furnish the Fund's Board
of Trustees with respect to the Portfolios such periodic and special reports as
the Trustees and Investment Adviser may reasonably request, including, but not
limited to, the monthly compliance checklist, 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, liquidity determination of
securities purchased pursuant to Rule 144A and 4(2) commercial paper, and
compliance with the Fund's or, if adopted by the Board of Trustees, the
Portfolio Manager's Code of Ethics, and such other procedures or requirements
that the Fund or Investment Adviser may request from time to time.
(i) Portfolio Manager shall be responsible for the preparation
and filing of Schedule 13G and Form 13F for each Portfolio, on behalf of the
Fund. Portfolio Manager shall not be responsible for the preparation or filing
of any other reports required of the Fund by any governmental or regulatory
agency, except as expressly agreed to in writing. Portfolio Manager shall vote
proxies received in connection with securities held by each Portfolio.
(j) Portfolio Manager will not knowingly disclose or use any
records or information obtained pursuant to this Agreement (excluding investment
research and investment advice) in any manner whatsoever except as expressly
authorized in this agreement or in the ordinary course of business in connection
with placing orders for the purchase and sale of securities, and will keep
confidential any information obtained pursuant to this Agreement, and disclose
such information only if the Board of Trustees of the Fund has authorized such
disclosure, or if such disclosure is required by applicable federal or state law
or regulations or regulatory authorities having requisite authority. The Fund
and Investment Adviser will not knowingly disclose or use any records or
information respecting 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 by this Agreement, if
Portfolio Manager 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.
3. OBLIGATIONS OF INVESTMENT ADVISER AND THE FUND.
(a) Investment Adviser or its agent shall provide timely
information to Portfolio Manager regarding such matters as the composition of
assets in each Portfolio, cash requirements and cash available for investment in
each Portfolio, and all other information as may be reasonably necessary for
Portfolio Manager to perform its responsibilities hereunder.
(b) Investment Adviser has herewith furnished Portfolio
Manager a copy of the Fund's registration statement currently in effect and
agrees during the continuance of this Agreement to furnish Portfolio Manager
copies of any amendments or supplements thereto before or at the time the
amendments or supplements become effective.
Investment Adviser agrees to furnish Portfolio Manager with minutes of meetings
of the Trustees of the Fund applicable to the Portfolios to the extent they may
affect the duties of Investment Adviser, a copy of any financial statements or
reports prepared for the Fund, including the Portfolios, by certified or
independent public accountants, and with copies of any financial statements or
reports made by the Fund to its shareholders or to any governmental body or
securities exchange, and any further materials or information which Portfolio
Manager may reasonably request to enable it to perform its functions under this
Agreement.
4. CUSTODIAN. Investment Adviser shall provide Portfolio Manager with a
copy of the Fund's agreement with the Custodian designated to hold the assets in
the Fund and any modification thereto (excepting any information concerning the
calculation of fees, in particular, the "Fee Schedule") (the "Custody
Agreement") in advance. Portfolio assets shall be maintained in the custody of
the Custodian identified in, and in accordance with the terms and conditions of,
the Custody Agreement. Portfolio Manager shall have no liability for the acts or
omissions of the Custodian. Any assets added to the Portfolios shall be
delivered directly to the Custodian.
5. EXPENSES. The Portfolio Manager shall bear all expenses incurred by
its staff and for their activities in connection with the performance of its
services under this Agreement. 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 relating to local administration of securities; fees
for any pricing services; costs of regulatory compliance; and pro rata costs
associated with maintaining legal existence and shareholder relations of the
Fund. All other expenses not specifically assumed by the Portfolio Manager
hereunder or by the Adviser under the Advisory Agreement are borne by the
applicable Portfolio. Pacific Select Fund, Investment Adviser, and Portfolio
Manager shall not be considered as partners or participants in a joint venture.
6. PURCHASE AND SALE OF ASSETS. Absent instructions from Investment
Adviser to the contrary, Portfolio Manager shall place all orders for the
purchase and sale of securities for the Portfolio(s) with brokers or dealers
selected by Portfolio Manager, which may include brokers or dealers affiliated
with Portfolio Manager. Purchase or sell orders for the Portfolios may be
aggregated with contemporaneous purchase or sell orders of other clients of
Portfolio Manager. Portfolio Manager shall use its best efforts to obtain
execution of Portfolio transactions at prices which are advantageous to the
Portfolios and at commission rates that are reasonable in relation to the
benefits received. However, Portfolio Manager may select brokers or dealers on
the basis that they provide brokerage research, or other services or products to
the Portfolio(s) and/or other accounts serviced by Portfolio Manager
7. COMPENSATION OF PORTFOLIO MANAGER. Investment Adviser shall pay to
Portfolio Manager a monthly fee in accordance with the fee schedule listed on
Exhibit A. Monthly fees shall be calculated by Investment Adviser based upon the
average daily net assets of each Portfolio (including cash or cash equivalents)
for the preceding month for investment advisory services rendered during that
preceding month, and shall be payable to Portfolio Manager by the fifteenth day
of the succeeding month. The fee for the first month during which Portfolio
Manager shall render investment advisory services under this Agreement shall be
based upon the number of days the account was open in that month. If this
Agreement is terminated, the fee shall be based upon the number of days the
account was open during the month in which the Agreement is terminated.
8. COMPLIANCE.
(a) The Portfolio Manager agrees that it shall promptly notify the
Investment Adviser and the Fund (i) in the event that the SEC or any banking or
other regulatory body has censured the Portfolio Manager; placed limitations
upon its activities, functions, or operations related to its responsibilities
under this Agreement; suspended or revoked its registration, if any, or its
ability to serve as an investment adviser; or has commenced proceedings or an
investigation that can be reasonably expected to result in any of these actions,
and (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. The Portfolio Manager further agrees to notify the Investment
Adviser and the Fund promptly 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 promptly
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 Adviser's
registration as an investment adviser; or has commenced proceedings that may
result in any of these actions, and (ii) upon having a reasonable basis for
believing that Fund 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.
9. COOPERATION. Each party to this Agreement agrees to 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 the Fund.
10. NON-EXCLUSIVITY. Investment Adviser and the Fund agree that the
services of Portfolio Manager are not to be deemed exclusive and that Portfolio
Manager and its affiliates are free to act as investment adviser and provide
other services to various investment companies and other managed accounts.
Subject to Section 17j-1 of the 1940 Act, this Agreement shall not in any way
limit or restrict Portfolio Manager or any of its directors, officers,
employees, or agents from buying, selling, or trading any securities or other
investment instruments for its or their own account or for the account of others
for whom it or they may be acting, provided that such activities will not
adversely affect or otherwise impair the performance by Portfolio Manager of its
duties and obligations under this Agreement. Investment Adviser and the Fund
recognize and agree that Portfolio Manager may provide advice to or take action
with respect to other clients, which advice or action, including the timing and
nature of such action, may differ from or be identical to advice given or action
taken with respect to the Fund. Portfolio Manager shall for all purposes herein
be deemed to be an independent contractor and shall, unless otherwise provided
or authorized, have no authority to act for or represent the Fund or Investment
Adviser in any way or otherwise by deemed an agent of the Fund or Investment
Adviser other than in furtherance of its duties and responsibilities as set
forth in this Agreement.
11. LIABILITY. Except as may otherwise be required by the 1940 Act or
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
willful misfeasance, bad faith, or gross 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.
12. INDEMNIFICATION.
(a) 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 ("affiliated person") 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 legal and other expenses) to which a
Portfolio Manager or Portfolio Manager Indemnified Persons 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 Investment Adviser's
responsibilities as Investment Adviser of The Fund which may be based upon any
willful misfeasance, bad faith, gross negligence, or reckless disregard of, the
Investment Adviser's obligations and/or duties under this Agreement by the
Investment Adviser or by any of its directors, officers, or employees, or any
affiliate acting on behalf of the Investment Adviser (other than Portfolio
Manager Indemnified Persons); provided however, that in no case is the indemnity
of the Investment Adviser in favor of the Portfolio Manager or 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.
(b) 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 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 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, 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 PL Indemnified
Persons); provided, however, that in no case is the indemnity of the Portfolio
Manager 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 obligation and duties
under this Agreement.
13 DURATION AND TERMINATION. This Agreement shall remain in full force
and effect until December 31, 2002 and is renewable annually thereafter by
agreement of the parties to this Agreement and by specific approval of the Board
of Trustees of the Fund or by vote of a majority of the outstanding voting
securities of each Portfolio. Any such renewal shall be approved by a vote of a
majority of the Trustees who are not interested persons under the 1940 Act, cast
in person at a meeting called for the purpose of voting on such renewal.
However, any approval of this Agreement by the holders of a majority of the
outstanding shares (as defined in the 0000 Xxx) of any Portfolio shall be
effective to continue this Agreement with respect to such Portfolio
notwithstanding (a) that this Agreement has not been approved by the holders of
a majority of the outstanding shares of any other Portfolio or (b) that this
Agreement has not been approved by the vote of a majority of the outstanding
shares of each Portfolio, unless such approval shall be required by any other
applicable law or otherwise. This Agreement may be terminated without penalty,
forfeiture, compulsory buyout amount, or performance of any obligation that
could deter termination at any time by either party upon (60) sixty days prior
written notice to the other party, and will automatically terminate in the event
of its assignment, as defined in the 1940 Act, or upon termination of the
Investment Adviser's Agreement with the Fund.
14. AMENDMENT. This Agreement may be amended only if such amendment is
specifically approved by (a) the vote of a majority of the outstanding voting
securities of the Portfolios, if required by applicable law, and (b) the vote of
a majority of those directors of the Fund who are not parties to this Agreement
or interested persons of any such party cast in person at a meeting called for
the purpose of voting on such approval.
15. BOOKS AND RECORDS. In compliance with the requirements of Rule
31a-3 under the 1940 Act, 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
Investment Adviser's request, although Portfolio Manager may, at its own
expense, make and retain a copy of such records. Portfolio Manager further
agrees to preserve such records for the periods prescribed by Rule 31a-2 under
the 1940 Act and to preserve the records required by Rule 204-2 under the
Advisers Act for the period specified in the Rule.
16. USE OF NAME.
(a) It is understood that the name "Pacific Life Insurance
Company" and "Pacific Life" and "the Fund" and any derivative thereof or logo
associated with those names are the valuable property of the Investment Adviser
and its affiliates. Portfolio Manager shall not use such names (or derivatives
or logos) without the prior written approval of the Investment Adviser and only
for so long as the Investment Adviser is an investment adviser to the Fund
and/or the Funds. Upon termination of the Investment Advisory Agreement between
the Fund and the Adviser, the Portfolio Manager shall forthwith cease to use
such name (or derivative or logo).
(b) It is understood that the name "Janus Capital Management LLC"
or any derivative thereof or logo associated with those names are 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 one or more Portfolios of the
Fund. 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
written approval by the Portfolio Manager. Upon termination of this Agreement
among the Fund, the Investment Adviser and the Portfolio Manager, the Fund and
the Investment Adviser shall forthwith cease to use such name (or logo).
17. LIMITATION AND LIABILITY. A copy of the Agreement and Declaration
of Trust for the Fund is on file with the Secretary of the State of
Massachusetts. The obligations of this Agreement shall be binding upon the
assets and property of the Fund and shall not be binding upon any trustee,
officer, employee, agent, or shareholder, whether past, present, or future, of
the Fund individually.
18. DISCLOSURE ABOUT PORTFOLIO MANAGER. Portfolio Manager has 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 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 about Portfolio Manager such Registration Statement contains,
as of the date thereof, no untrue statement of any material fact and does not
omit any statement of a material fact which was required to be stated therein or
necessary to make the statements contained therein not misleading. Portfolio
Manager further agrees to notify Investment Adviser and the Fund immediately of
any material fact known to Portfolio Manager respecting or relating to 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.
19. 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:
Janus Capital Management LLC
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile transmission number: (000) 000-0000
Attention: Xxxxxx Xxxx
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 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
20. GENERAL
(a) Portfolio Manager may perform its services through any
employee, officer, or agent of Portfolio Manager, and Investment Adviser shall
not be entitled to the advice, recommendation, or judgment of any specific
person.
(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) 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.
(d) Each party to this Agreement agrees to 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 the Fund.
(e) If any term or provision or this Agreement or the
application thereof to any person or circumstances is held to be invalid or
unenforceable to any extent, the remainder of this Agreement or the application
of such provision to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
(f) This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Colorado exclusive of conflicts of
laws, 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
1940 Act.
PACIFIC LIFE INSURANCE COMPANY
Attest: /s/ Xxxxxx X. Milfs By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxxx X. Milfs Name: Xxxx X. Xxxxxxx
Title: Vice President, Title: President
Secretary
JANUS CAPITAL MANAGEMENT LLC
Attest: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxx
-------------------- ------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxx
Title: Associate Counsel Title: Vice President of Janus Capital
Management LLC
PACIFIC SELECT FUND
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxx X. Xxxxxxx
Title: President
Exhibit A
PACIFIC SELECT FUND
FEE SCHEDULE
JANUS CAPITAL MANAGEMENT LLC
EFFECTIVE: April 3, 2002
Portfolio: Strategic Value
The Investment Adviser will pay to the Portfolio Manager a
monthly fee based on the average daily net assets of the Strategic
Value Portfolio at an annual rate equal to:
Rate (%) Break Point (assets)
.55% On first $100 million
.50% On next $400 million
.45% On excess
Portfolio: Growth LT
The Investment Adviser will pay to the Portfolio Manager a
monthly fee based on the average daily net assets of the Growth LT
Portfolio at an annual rate equal to:
Rate (%) Break Point (assets)
.55% On first $100 million
.50% On next $400 million
.45% On excess
Portfolio: Focused 30
The Investment Adviser will pay to the Portfolio Manager a
monthly fee based on the average daily net assets of the Focused 30
Portfolio at an annual rate equal to:
Rate (%) Break Point (assets)
.55% On first $100 million
.50% On next $400 million
.45% On excess
These fees for services shall be prorated for any portion of a year in which the
Agreement is not effective.
Exhibit A
PACIFIC SELECT FUND
FEE SCHEDULE
JANUS CAPITAL MANAGEMENT LLC
EFFECTIVE: May 1, 2002
Portfolio: Strategic Value
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 Strategic Value Portfolio of the Pacific Select Fund
and the XX Xxxxx Strategic Value Fund, according to the following
schedule:
Rate (%) Break Point (assets)
.50% On first $250 million
.45% On next $500 million
.40% On next $750 million
.35% On excess
Portfolio: Growth LT
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 Growth LT Portfolio of the Pacific Select Fund and
the XX Xxxxx Growth LT Fund, according to the following schedule:
Rate (%) Break Point (assets)
.50% On first $250 million
.45% On next $500 million
.40% On next $750 million
.35% On excess
Portfolio: Focused 30
The Investment Adviser will pay to the Portfolio Manager a
monthly fee based on the average daily net assets of the Focused 30
Portfolio at an annual rate equal to:
Rate (%) Break Point (assets)
.50% On first $250 million
.45% On next $500 million
.40% On next $750 million
.35% On excess
These fees for services shall be prorated for any portion of a year in which the
Agreement is not effective.
