EXHIBIT (d)(3)
FUND MANAGEMENT AGREEMENT
AGREEMENT made effective this 1st day of July, 2001 among Pacific Life
Insurance Company, ("Adviser"), a California corporation, and INVESCO Funds
Group, Inc., a Delaware corporation ("INVESCO" or "Fund Manager"),and Pacific
Funds (Pacific Funds"), a Delaware Business Trust.
WHEREAS, the 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 with the SEC as an investment
adviser under the Advisers Act; and
WHEREAS, Pacific Funds has retained the Adviser to render investment
advisory services to the 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 the INVESCO 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 INVESCO to
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act 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 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. Fund manager is authorized to act on behalf of the Funds in the
purchase and sale of private placement investment securities, to the extent
permitted by the written investment policies of the Funds. This authority shall
include the power to execute purchase and sale documents on behalf of the Funds,
as required by the rules and regulations governing issuers of private placement
investment securities and institutional market participants. 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
Funds, each as the Fund Manager determines is in the best interest of the Funds.
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) 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
(5) with the provisions of the 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. Until the Adviser delivers any
supplements or amendments to the Fund Manager, the Fund Manager shall be fully
protected in relying on the Pacific Funds' Registration Statement previously
furnished to the Fund Manager by the Adviser.
(c) Will: (i) use its best efforts to identify each position in the
Funds 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 Adviser at least annually, (or more
often and by such date(s) as the 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 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 Funds 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.
(e) 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.
(f) 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 Funds, 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 confirmation of such trades
to Pacific Funds' custodian, and recordkeeping agent, and, if required, the
Adviser.
(g) Will assist the custodian and recordkeeping agent for the 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
recommending fair valuations in accordance with Pacific Funds procedures, as
they may be amended from time to time.
(h) Will maintain and preserve such records related to each Funds'
transactions as required under the 1940 Act and the Advisers Act. The Fund
Manager will make available to Pacific Funds and the Adviser promptly upon
request, any of the Funds' 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 any information or reports
in connection with such services 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.
(i) Will regularly report to Pacific Funds' Board of Trustees on the
investment program for the Funds and the issuers and securities represented in
the Funds' funds, 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, the monthly compliance checklist, monthly tax compliance
worksheet, 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 the Adviser may request from time to time.
(j) 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 required
by applicable federal or state law or regulations or regulatory authorities
having the requisite authority.
(k) 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.
(l) 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 or the Funds, 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 information relating, directly or
indirectly, to the Fund Manager or the Funds 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. The Fund
Manager further represents and warrants that it is a duly registered investment
adviser under the Advisers Act and a duly registered investment adviser in all
states in which the 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. These fees for
services shall be prorated for any portion of a year in which the Agreement is
not effective.
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 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 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 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 Fund)
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 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 the Trust which (i) may be based upon any willful misfeasance, bad faith,
gross 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
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 statements therein not misleading, if such a statement
or omission was made in reliance upon information furnished in writing to the
Adviser, the Trust, or any affiliated person of the Trust 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 willful misfeasance, bad faith or gross
negligence by the Adviser, any of its employees or any affiliate acting on
behalf of the Adviser (other than a 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 Pacific Funds or the Adviser or any 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 the
Fund, 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 the 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.
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, and that the Fund Manager has the right to use such name (or
derivative or logo) only with the prior written approval of the Adviser and only
so long as the Adviser is an investment adviser to 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 INVESCO Funds Group, Inc. or
"INVESCO" or "INVESCO Funds" or logo associated with that name is the valuable
property of the Fund Manager and that the Adviser has 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 Pacific Funds and/or one of the
Funds. Neither Pacific Funds nor the Adviser shall use the Fund Manager's name
in promotional or sales related materials prepared by or on behalf of the
Adviser or Pacific Funds, without prior review and approval by the Fund Manager,
which may not be unreasonably withheld. 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 Amended and Restated 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 the Trust by a
Trustee of the Trust in his capacity as Trustee of the Trust and not
individually. The obligations of this Agreement shall be binding upon the
assets and property of 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:
INVESCO Funds Group, Inc.
0000 Xxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile transmission number: 000-000-0000
Attention: General Counsel
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 Xxxxx
C. if to the Fund, 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 Xxxxx
19. Miscellaneous.
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(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.
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: /s/ Xxxxxx X. Milfs By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxxx X. Milfs Name: Xxxxx X. Xxxxxxx
Title: Vice President & Secretary Title: President
FUND MANAGER
Attest: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxx X. Xxxxx Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President, Secretary, Title: Senior Vice President
and General Counsel
PACIFIC FUNDS
Attest: /s/ Xxxxxx X. Milfs By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxxx X. Milfs Name: Xxxxx X. Xxxxxxx
Title: Secretary Title: President
PACIFIC FUNDS
FEE SCHEDULE
Funds: PF INVESCO Health Sciences and Technology Funds
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
INVESCO Health Sciences and PF INVESCO Technology Funds and the
Financial Services, Health Sciences, Technology and Telecommunication
Portfolios of the Pacific Select Fund according to the following
schedule:
Rate (%) Break Point (assets)
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.50% On first $1 billion
.47% On excess
These fees for services shall be prorated for any portion of a year in which the
Agreement is not effective.
