EXHIBIT (d)(4)(B)
FUND MANAGEMENT AGREEMENT
This Fund 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 ("Fund
Manager"), a Delaware limited liability company, and Pacific Funds ("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 Investment 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 Investment 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 Investment Adviser to render
investment advisory services to the various funds of the Pacific Funds pursuant
to an Advisory Agreement, as amended, and such Agreement authorizes the
Investment Adviser to engage a Fund Manager to discharge the Investment
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 Investment Adviser desire to retain Fund
Manager 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 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 Pacific Funds, the Investment
Adviser, and the Fund Manager as follows:
1. APPOINTMENT. Pacific Funds and Investment Adviser hereby appoint Janus
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Capital Management LLC to act as Fund Manager to the Funds listed on Exhibit A
(the "Funds") for the periods and on the terms set forth in this Agreement.
Fund 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 Fund Manager to render investment advisory services to one or
more Funds, other than the Funds listed on Exhibit A, Investment Adviser shall
notify Fund Manager in writing. If Fund Manager is willing to render such
services, it shall notify Pacific Funds and Investment Adviser in writing,
whereupon such funds shall become a Fund hereunder, and be subject to this
Agreement.
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2. FUND MANAGER DUTIES.
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(a) Fund Manager shall, subject to the supervision of Pacific Funds'
Board of Trustees and the Investment Adviser, 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 responsible for and authorized to and shall exercise tender offers, exchange
offers and to vote proxies on behalf of each Fund, each as the Fund Manager
determines is in the best interest of the Fund. In performing these duties, the
Fund 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
Pacific Funds, the Investment Adviser or the Fund Manager and received by the
Fund Manager), (2) all other applicable federal and state laws and regulations
pertaining to registered open-end investment management companies, (3) any
applicable written procedures, policies and guidelines adopted by the Pacific
Funds' Board of Trustees and furnished to Fund Manager, (4) each Fund's
objectives, investment policies and investment restrictions as stated in the
Pacific Funds' Prospectus and Statement of Additional Information as
supplemented or amended from time to time, as furnished to the Fund Manager, (5)
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. Until the Investment Adviser delivers any supplements
or amendments to the Fund Manager, the Fund Manager shall be fully protected in
relying on Pacific Funds' Registration Statement, procedures, policies and
guidelines previously furnished to the Fund Manager by the Investment Adviser,
and (6) Section 851(b)(2) and (3) Subchapter M of the Internal Revenue Code of
1986, as amended (the "Code").
(c) Is responsible, in connection with its responsibilities under this
Section 2, for decisions to buy and sell securities and other investments for
each Fund, 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 each Fund, 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
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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 each Fund and to its other clients as to which it exercises
investment discretion and not all such services or products may be used by the
Fund Manager in managing the Funds. 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.
(d) Fund Manager shall furnish Investment Adviser monthly, quarterly,
and annual reports concerning transactions and performance of each Fund in such
form as may be mutually agreed upon, and agrees to review and discuss the
management of each Fund. Fund Manager shall permit the financial statements,
books and records with respect to the Funds to be inspected and audited by the
Investment Adviser at all reasonable times during normal business hours. Fund
Manager shall also provide Investment Adviser and Pacific Funds with such other
information and reports as may reasonably be requested by Investment Adviser and
Pacific Funds from time to time, other than proprietary information and provided
that Fund Manager shall not be responsible for Pacific Funds accounting.
(e) Fund Manager shall provide to Investment Adviser a copy of Fund
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 Pacific Funds' Board of Trustees) 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.
(f) Fund Manager will, in connection with the purchase and sale of
securities for each Fund, together with Investment Adviser, arrange for the
transmission to the custodian, and the 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 each Fund, as may be
reasonably necessary to enable the custodian and recordkeeping agent to perform
its administrative and recordkeeping responsibilities with respect to Pacific
Funds, and, with respect to each Fund's 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,
recordkeeping agent, and, if required, to the Investment Adviser.
(g) Fund Manager 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 Funds' securities or other assets of the
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Funds for which the custodian and recordkeeping agent seeks assistance from Fund
Manager or identifies for review by Fund Manager.
(h) Fund Manager will report regularly to the Board of Trustees of
Pacific Funds on the investment program for each Fund and the issuers and
securities represented in each Fund and will furnish the Board of Trustees of
Pacific Funds, with respect to the Funds, 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
Pacific Funds' 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 Pacific Funds' or, if adopted by the Board of Trustees, the Fund
Manager's Code of Ethics, and such other procedures or requirements that Pacific
Funds or Investment Adviser may request from time to time.
(i) Fund Manager shall be responsible for the preparation and filing
of Schedule 13G and Form 13F for each Fund on behalf of Pacific Funds. Fund
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. Fund Manager shall vote proxies received in
connection with securities held by the Funds.
(j) Fund 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 Pacific Funds has authorized
such disclosure, or if such disclosure is required by applicable federal or
state law or regulations or regulatory authorities having requisite authority.
Pacific Funds and Investment Adviser will not knowingly disclose or use any
records or information respecting 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 by this
Agreement, if Fund 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.
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(a) Investment Adviser or its agent shall provide timely information
to Fund Manager regarding such matters as the composition of assets in each
Fund, cash requirements and cash available for investment in each Fund, and all
other information as may be reasonably necessary for Fund Manager to perform its
responsibilities hereunder.
(b) Investment Adviser has herewith furnished Fund Manager a copy of
the Fund's registration statement currently in effect and agrees during the
continuance of this Agreement to furnish Fund Manager copies of any amendments
or supplements thereto before or at the time the amendments or supplements
become effective. Investment Adviser agrees to furnish Fund Manager with
minutes of meetings of the Trustees of Pacific Funds applicable to the Fund to
the extent they may affect the duties of Investment Adviser, a copy of any
financial statements or reports prepared for Pacific Funds, including the Funds,
by certified or independent public accountants, and with copies of
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any financial statements or reports made by Pacific Funds to its shareholders or
to any governmental body or securities exchange, and any further materials or
information which Fund Manager may reasonably request to enable it to perform
its functions under this Agreement.
4. CUSTODIAN. Investment Adviser shall provide Fund Manager with a copy
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of Pacific Funds' 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. The Funds' assets shall be maintained in the custody of
the Custodian identified in, and in accordance with the terms and conditions of,
the Custody Agreement. Fund Manager shall have no liability for the acts or
omissions of the Custodian. Any assets added to the Funds shall be delivered
directly to the Custodian.
5. EXPENSES. The Fund Manager shall bear all expenses incurred by its
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staff and for their activities in connection with the performance of its
services under this Agreement. 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 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 Pacific
Funds. 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. Pacific Funds, Investment Adviser, and Fund Manager shall not
be considered as partners or participants in a joint venture.
6. PURCHASE AND SALE OF ASSETS. Absent instructions from Investment
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Adviser to the contrary, Fund Manager shall place all orders for the purchase
and sale of securities for the Funds with brokers or dealers selected by Fund
Manager which may include brokers or dealers affiliated with Fund Manager.
Purchase or sell orders for the Funds may be aggregated with contemporaneous
purchase or sell orders of other clients of Fund Manager. Fund Manager shall
use its best efforts to obtain execution of the Funds' transactions at prices
which are advantageous to the Funds and at commission rates that are reasonable
in relation to the benefits received. However, Fund Manager may select brokers
or dealers on the basis that they provide brokerage, research, or other services
or products to the Funds and/or other accounts serviced by Fund Manager.
7. COMPENSATION OF FUND MANAGER. Investment Adviser shall pay to Fund
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Manager a monthly fee in accordance with the fee schedule as outlined on Exhibit
A as attached to this Agreement. Monthly fees shall be calculated by Investment
Adviser based upon the average daily net assets of the Funds (including cash or
cash equivalents) for the preceding month for investment advisory services
rendered during that preceding month, and shall be payable to Fund Manager by
the fifteenth day of the succeeding month. The fee for the first month during
which Fund 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.
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(a) The Fund Manager agrees that it shall promptly notify the
Investment Adviser and Pacific Funds (i) in the event that the SEC or any
banking or other regulatory body has censured the Fund Manager; placed
limitations upon its activities, functions, or operations related to its
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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
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 Investment Adviser and Pacific Funds promptly 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 Investment Adviser agrees that it shall promptly notify the
Fund Manager (i) in the event that the SEC has censured the Investment 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 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.
9. 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 Pacific Funds.
10. NON-EXCLUSIVITY. Investment Adviser and Pacific Funds agree that
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the services of Fund Manager are not to be deemed exclusive and that Fund
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 Fund 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 Fund Manager of its duties and
obligations under this Agreement. Investment Adviser and Pacific Funds
recognize and agree that Fund 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. Fund 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 Pacific Funds or
Investment Adviser in any way or otherwise by deemed an agent of Pacific Funds
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
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or the rules thereunder or other applicable law, Pacific Funds and Investment
Adviser agree that Fund Manager, any affiliated person of Fund Manager, and each
person, if any, who, within the meaning of Section 15 of the 1933 Act, controls
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 Fund Manager's
duties, or by reason of reckless disregard of Fund Manager's obligations and
duties under this Agreement.
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12. INDEMNIFICATION.
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(b) The Investment 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 ("affiliated person") 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 or Fund 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 Pacific Funds 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 Fund Manager Indemnified Persons); provided however, that in no case is the
indemnity of the Investment Adviser in favor of the Fund Manager or 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.
(b) The Fund 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 Fund Manager's responsibilities to Pacific Funds which 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 Manager or by any of its directors, officers, or employees, or any
affiliate acting on behalf of the Fund Manager (other than PL Indemnified
Persons); provided, however, that in no case is the indemnity of the Fund
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
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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 Pacific Funds or by vote of a majority of the outstanding voting
securities of the Funds. 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 ▇▇▇▇ ▇▇▇) of a 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 the Funds, 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
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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 Pacific Funds.
14. AMENDMENT. This Agreement may be amended only if such amendment is
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specifically approved by (a) the vote of a majority of the outstanding voting
securities of the Funds, 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
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under the 1940 Act, Fund Manager hereby agrees that all records which it
maintains for the Fund are the property of Pacific Funds and further agrees to
surrender promptly to Pacific Funds any of such records upon Pacific Funds' or
Investment Adviser's request, although Fund Manager may, at its own expense,
make and retain a copy of such records. Fund 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.
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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 Investment Adviser
and its affiliates. Fund 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 Pacific Funds
and/or the Funds. Upon termination of the Investment Advisory Agreement between
Pacific Funds and the Investment Adviser, the Fund 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 Fund Manager and that Pacific Funds and Investment 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 Investment Adviser shall use the
Fund Manager's name or logo in promotional or sales related materials prepared
by or on behalf of the Investment Adviser or Pacific Funds, without prior review
and written approval by the Fund Manager. Upon termination of this Agreement
among Pacific Funds, the Investment Adviser and the Fund Manager, Pacific Funds
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
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Trust for Pacific Funds is on file with the Secretary of the State of Delaware.
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. DISCLOSURE ABOUT FUND MANAGER. Fund Manager has reviewed the
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current Registration Statement for Pacific Funds and agrees to promptly review
future Registration Statements,
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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 Fund 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. Fund Manager further agrees to notify
Investment Adviser and Pacific Funds immediately of any material fact known to
Fund Manager respecting or relating to 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.
19. NOTICES. All notices and other communications hereunder shall be in
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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: Janus Capital Management LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile transmission number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
B. if to the Adviser, to: Pacific Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile transmission number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
C. if to Pacific Funds, to: Pacific Funds
c/o Pacific Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile transmission number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
20. GENERAL
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(a) Fund Manager may perform its services through any employee,
officer, or agent of Fund 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.
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(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 Pacific Funds.
(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/ ▇▇▇▇▇▇ ▇. Milfs By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------- ------------------------------------
Name: ▇▇▇▇▇▇ ▇. Milfs Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, Title: President
Secretary
JANUS CAPITAL MANAGEMENT LLC
Attest: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------- ------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Associate Counsel Title: Vice President of Janus
Capital Management LLC
PACIFIC FUNDS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
10
EXHIBIT A
---------
PACIFIC FUNDS
FEE SCHEDULE
JANUS CAPITAL MANAGEMENT LLC
EFFECTIVE: April 3, 2002
Fund: ▇▇ ▇▇▇▇▇ Strategic Value Fund
The Investment Adviser will pay to the Fund Manager a monthly fee based on
an annual percentage of the combined average daily net assets of the ▇▇ ▇▇▇▇▇
Strategic Value Fund and the Strategic Value Portfolio of the Pacific Select
Fund, according to the following schedule:
Rate (%) Break Point (assets)
-------- --------------------
.55% On first $100 million
.50% On next $400 million
.45% On excess
Fund: ▇▇ ▇▇▇▇▇ Growth LT Fund
The Investment Adviser will pay to the Fund Manager a monthly fee based on
an annual percentage of the combined average daily net assets of the ▇▇ ▇▇▇▇▇
Growth LT Fund and the Growth LT Portfolio of the Pacific Select Fund, according
to the following schedule:
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.
11
