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EXHIBIT 4(e)
FORM OF
SUB-ADVISORY AGREEMENT
SUB-ADVISORY AGREEMENT, made as of the __ day of _________, 2000, by
and among PACIFIC GLOBAL FUND, INC., a Maryland corporation doing business as
PACIFIC ADVISORS FUND INC. (the "Corporation"), PACIFIC GLOBAL INVESTMENT
MANAGEMENT COMPANY, a California corporation ("PGIMC") and BACHE CAPITAL
MANAGEMENT, INC., a California corporation ("BCM ").
WITNESSETH:
WHEREAS, the Corporation is engaged in business as an open-end
management company and is registered as such under the Investment Company Act of
1940, as amended (the "1940 Act"); and
WHEREAS, the Corporation is a series type investment company currently
consisting of five series, the Balanced Fund, the Income and Equity Fund, the
Government Securities Fund, the Growth Fund and the Small Cap Fund, each with
its own investment objectives, investment program, policies, and restrictions;
and
WHEREAS, PGIMC is engaged principally in the business of rendering
investment management services and is registered as an investment adviser under
the Investment Advisers Act of 1940, as amended ("Advisers Act"); and
WHEREAS, BCM is engaged principally in the business of rendering
investment advisory services and is registered as an investment adviser under
the Advisers Act; and
WHEREAS, PGIMC and the Corporation on behalf of its separately
designated series, the Balanced Fund (the "Fund"), have entered into an
Investment Management Agreement dated as of October 16, 1992 (the "Investment
Management Agreement") pursuant to which PGIMC provides investment advisory and
administrative services to the Fund; and
WHEREAS, PGIMC proposes to engage the services of BCM as sub-adviser
("Sub-Adviser") to manage the Fund as permitted by the Investment Management
Agreement; and
WHEREAS, BCM is willing to perform sub-advisory services for the Fund
upon the terms and conditions and for the compensation hereinafter set forth;
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NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements hereinafter set forth, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. PGIMC hereby employs BCM to serve as Sub-Adviser with respect to the
assets of the Fund under management of PGIMC and to perform the services
hereinafter set forth. BCM hereby accepts such employment and agrees for the
compensation herein provided to assume all obligations herein set forth and to
bear all expenses of its performance of such obligations (but no other
expenses).
2. Subject to the supervision and control of the Corporation's Board of
Directors and of PGIMC, BCM shall manage the investment and reinvestment of the
Fund's assets in accordance with applicable law, including the Internal Revenue
Code of 1986, as amended, and the investment objectives, investment program,
policies, and restrictions set forth in the then-current Prospectus and
then-current Statement of Additional Information relating to the Fund contained
in the Corporation's Registration Statement under the 1940 Act, and the
Securities Act of 1933, as amended from time to time, and subject to such
further limitations as the Corporation may from time to time impose by written
notice to PGIMC. PGIMC shall promptly inform BCM of such further limitations
imposed by the Corporation. BCM shall establish the overall investment program
for the management of the Fund's assets. PGIMC shall assist in the formulation
and implementation of a continuing investment program for the management of the
Fund's assets. BCM shall amend and update such investment program from time to
time as financial and other economic conditions warrant.
3. Subject to the supervision and control of the Corporation's Board of
Directors and PGIMC, BCM shall each have the authority to make all
determinations with respect to the investment and reinvestment of the assets of
the Fund and to take such steps as may be necessary to implement the same. As an
initial matter, BCM shall make all determinations with respect to the purchase
or sale of investments of the Fund; provided, however, that PGIMC may from time
to time, upon five (5) days written notice to BCM, reassign or reallocate the
duties, as PGIMC deems necessary, appropriate, or desirable. Consistent with its
duties hereunder, BCM shall advise PGIMC and the Corporation's Board of
Directors of the manner in which voting rights, rights to consent to corporate
action, and any other non-investment decisions pertaining to the Fund's
portfolio securities should be exercised.
4. BCM shall regularly furnish reports to PGIMC for PGIMC's use in
discharging its obligations under the Investment Management Agreement, which
reports may be distributed by PGIMC to the Corporation at periodic meetings of
the Corporation's Board of Directors and at such other times as may be
reasonably requested by the Corporation's Board of Directors. Such reports shall
include:
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BCM's economic outlook and investment research and strategy of BCM; a
discussion of the Fund's portfolio activity, including a schedule of the Fund's
investments and other assets and a statement of all purchases and sales for the
Fund during the period since the last preceding report, and the Fund's
performance since the last report and for such other relevant periods as shall
be mutually agreed upon; and any other information about material developments
affecting the Fund. Copies of all such reports shall be furnished to PGIMC for
examination and review within a reasonable time prior to the presentation of
such reports to the Corporation's Board of Directors.
5. (a) BCM shall select the brokers or dealers that will execute the
purchases and sales of portfolio securities for the Fund and place, in the name
of the Fund or its nominee, all such orders. Such brokers or dealers may include
brokers or dealers affiliated with BCM, PGIMC and the Corporation ("affiliated
brokers or dealers "). All purchases and sales of portfolio securities for the
Fund placed with affiliated brokers or dealers shall be placed in compliance
with procedures established by the Corporation's Board of Directors. When
placing such orders, BCM shall use its best efforts to obtain the best available
price and most favorable execution for the Fund. BCM shall use its best efforts
to recapture all available tender and exchange offer solicitation fees and
similar payments in connection with tenders or exchanges of the securities of
the Fund. BCM shall send, by facsimile or comparable means, copies of all
portfolio transactions to the Corporation's custodian on the date such portfolio
transactions are executed. BCM shall advise the Board of Directors of the
Corporation of any fees or payments of whatever type that it may be possible for
BCM or any affiliate of BCM to receive in connection with the purchase or sale
of investment securities for the Fund.
(b) Subject to prior authorization by PGIMC and to the appropriate
policies, procedures, and/or guidelines established by the Board of Directors,
BCM may also effect individual securities transactions at commission rates in
excess of the minimum commission rates available, if BCM determines in good
faith that such amount of commission is reasonable in relation to the value of
the brokerage or research services provided by such broker or dealer, viewed in
terms of either that particular transaction or BCM's overall responsibilities
with respect to the Fund and BCM's other advisory clients. The execution of such
transactions shall not be deemed to represent an unlawful act or breach of any
duty created by this Agreement or otherwise.
(c) BCM shall promptly communicate to PGIMC and the Corporation's Board
of Directors such information relating to portfolio transactions as PGIMC or the
Board of Directors may reasonably request.
(d) The parties understand that the Fund shall bear all brokerage
commissions in connection with purchases and sales of portfolio securities for
the Fund and all ordinary and reasonable transaction costs in connection with
purchases of such securities in private placements and subsequent sales thereof.
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6. BCM shall:
(a) provide, without charge, persons to render such reasonable
clerical, administrative, and other services (other than services described in
any other sub-paragraphs of this paragraph 6) to the Fund as the Corporation's
Board of Directors may from time to time reasonably request;
(b) furnish the Corporation, for the Fund, without charge, such
reasonable administrative and management supervision and office facilities,
which may be their own offices, as shall be appropriate or as the Corporation's
Board of Directors may reasonably request, subject to the requirements of any
regulatory authority to which PGIMC or BCM may be subject;
(c) generally assist in all other aspects of the Fund's operations as
the Corporation's Board of Directors may reasonably request;
(d) provide, as the Corporation's Board of Directors may reasonably
request and without charge, persons satisfactory to the Board of Directors to
serve as the Corporation's officers;
(e) provide, at a cost to the Fund to be agreed upon from time to time
by the Corporation, PGIMC, and BCM, persons, who may be employees of PGIMC, BCM,
or their respective affiliates, satisfactory to the Corporation's Board of
Directors, to provide other services for the Fund, and such facilities and
equipment as may be necessary for such persons to carry out their duties
hereunder, including without limitation office space and facilities, telephone
and CRT terminals and equipment (including telephone lines) necessary for access
to the Fund's records;
(f) provide data processing services, recordkeeping, and clerical
services, internal auditing and regulatory compliance services, internal
executive and administrative services and stationery and office supplies;
(g) provide information to the Corporation or PGIMC as necessary to
prepare reports to shareholders, tax returns, and reports to and filings with
the Securities and Exchange Commission and any other regulatory and
administrative bodies that have jurisdiction over the operations of the Fund and
shall submit to all such regulatory and administrative bodies such information,
reports, or other material as necessary to comply with applicable laws or
regulations; and
(h) maintain records relating to the services provided under this
Agreement, which records shall be the property of, and under control of, the
Corporation.
BCM may (at its cost except as contemplated by paragraph 5 and 6(e) of this
Agreement) employ, retain, or otherwise avail itself of the services and
facilities of persons and entities within its own organization or
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any other organization for the purpose of providing BCM, PGIMC, the
Corporation or the Fund with such information, advice or assistance,
including but not limited to advice regarding economic factors and trends and
advice as to transactions in specific securities, as BCM may deem necessary,
appropriate, or convenient for the discharge of its obligations hereunder or
otherwise helpful to PGIMC, the Corporation or the Fund, or in the discharge
of BCM's overall responsibilities with respect to the other accounts which it
serves as investment manager.
7. BCM shall cooperate with and make available to PGIMC, the
Corporation, and any agents engaged by the Corporation, BCM's expertise relating
to matters affecting the Fund which involve markets, securities or individual
companies. Such matters shall include, but shall not be limited to, the pricing
of certain securities owned by the Fund for the purpose of pricing Fund shares
and the selection of agents engaged by the Corporation on behalf of the Fund.
8. (a) As compensation for all services rendered by BCM under this
Agreement, PGIMC shall have the sole responsibility to pay to BCM a fee
calculated at the annual rate of .40% on the first $200 million of the average
daily net asset value of the Fund, .37% on the next $200 million, .34% of the
next $200 million, .31% of the next $200 million, .28% of the next $200 million
and .25% in excess of $1 billion of average daily net asset value.
The sub-advisory fee shall accrue on each calendar day, and the sum of the daily
fee accruals shall be paid monthly to BCM on the first business day of the next
succeeding calendar month. The daily fee accruals shall be computed by
multiplying the fraction of one over the number of calendar days in the year by
the applicable annual sub-advisory fee rate described above, and multiplying
this product by the net assets of the Fund as determined in accordance with the
Fund's then-current Prospectus as of the close of business on the previous
business day on which the Fund's net asset value was determined. The
sub-advisory fee shall be payable through the date of termination.
BCM shall promptly reduce its fee by the amount of any commissions, tender and
exchange offer solicitation fees, other fees, or similar payments received by
BCM, or any affiliated person of BCM, in connection with the Fund's portfolio
transactions, less the amount of any direct expenses incurred by BCM, or any
affiliated persons of BCM, in obtaining such commissions, fees, or payments.
Such "commissions" or "other fees" shall exclude those charged by brokers or
dealers affiliated with BCM, PGIMC and the Corporation as referred to in
paragraph 5(a). Such "tender and exchange offer solicitation fees" shall exclude
those received by BCM acting in the capacity of manager for any such offer.
(b) BCM shall not be entitled to receive any payment for the
performance of its services hereunder from the Fund and shall look solely and
exclusively to PGIMC for payment of all fees for such services.
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(c) BCM shall bear all expenses in connection with the performance of
its services under this Agreement, except as otherwise provided herein. Expenses
incurred in connection with the investment operations of the Fund, including
brokers' commissions, transfer and capital gains or other income taxes, and fees
relating to purchases, sales, or loans of investments, shall be paid out of the
assets of the Fund. Other expenses incurred in the operation of the Fund shall
also be paid by the Fund, as described in the then-current Prospectus and
Statement of Additional Information and as provided in the Investment Management
Agreement between the Corporation, on behalf of the Fund, and PGIMC.
9. BCM shall not be liable for any loss or losses sustained by reason
of any investment including the purchase, holding or sale of any security as
long as BCM shall have acted in good faith and with due care; and, in any event,
BCM shall be liable for its willful misfeasance, bad faith, or negligence in the
performance of its investment advisory duties or for failure to exercise due
care in rendering other services under this Agreement. A good faith mistake in
judgement shall not be deemed to be the absence of due care.
10. (a) This Agreement shall become affective when it shall have been
approved by vote of the Fund's shareholders in accordance with the provision of
Section 15 of the 1940 Act and applicable state law. Unless sooner terminated as
hereinafter provided, this Agreement shall continue in effect through December
31, 2002. Thereafter, this Agreement shall continue in effect from year to year,
so long as its continuance is approved in the manner required by the 1940 Act.
(b) This Agreement shall be effective on a temporary interim basis from
the day and year first written above until the earlier of 150 days after such
date or until it shall have been approved or rejected by the Fund's shareholders
in accordance with the provisions of Section 15 of the 1940 Act and applicable
state law (the "temporary agreement period"). During the temporary agreement
period, BCM shall not be entitled to any compensation under this Agreement prior
to January 1, 2001. From and including January 1, 2001until the end of the
temporary agreement period, any compensation earned by BCM shall be held in an
interest bearing escrow account by the Fund's custodian. If this Agreement is
approved by the Fund's shareholders as provided above before the end of the
interim agreement period, then the amount in the escrow account including
interest shall be paid to BCM. Otherwise, this Agreement shall terminate and BCM
shall be paid the lesser of the amount in the escrow account including interest
or any costs incurred in performing the interim agreement plus interest earned
on that amount while in escrow.
(c) This Agreement may be terminated at any time without the payment of
any penalty, (a) by the Board of Directors of the Corporation, including the
vote or written consent of a majority of the directors of the Corporation who
are not parties to this Agreement or the Investment Management Agreement or
interested persons of any such party, (b) by the vote of a majority of the
outstanding voting
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securities of the Fund, (c) by PGIMC on sixty (60) days' prior written notice
to BCM, or (d) by BCM on sixty (60) days' prior written notice to the Fund,
provided, that if BCM terminates this Agreement for any reason other than the
Corporation's decision to make a change in fundamental investment policies or
restrictions applicable to the Fund over BCM's written objection to such
change, the termination by BCM will not be effective until PGIMC shall have
contracted with one or more persons to serve as a successor sub-adviser for
the Fund and such person or persons shall have assumed such position but in
no event will the termination be delayed more than one hundred eighty (180)
days after the end of the notice period. This Agreement shall terminate
automatically in the event of its assignment, or upon termination of the
Investment Management Agreement between the Corporation and PGIMC.
(d) As used in this Agreement, the terms "assignment," "interested
person," and "vote of a majority of the outstanding voting securities" of the
Fund shall have the meanings set forth for such terms in the 1940 Act.
(e) In the event of termination of this Agreement, BCM shall promptly
return to the Corporation all records maintained by BCM with respect to the Fund
and BCM shall be free from any claim or retention of rights therein. BCM may
retain copies of such records that it maintains pursuant to the requirements of
the 1940 Act. BCM and PGIMC shall not disclose or use any records or information
obtained pursuant to this Agreement in any manner whatsoever except as expressly
authorized by this Agreement and applicable law. BCM and PGIMC shall keep
confidential any information obtained in connection with their duties hereunder
and shall disclose such information only if the Corporation, on behalf of the
Fund, has authorized such disclosure or if such disclosure is expressly required
by applicable law or federal or state regulatory authorities. BCM, PGIMC and the
Corporation shall furnish to the other parties any documents and other materials
prepared for distribution which refer to the other party prior to use and each
party shall have the right to limit use of such documents to which it reasonably
objects.
(f) Any notice under this Agreement shall be given in writing,
addressed and delivered, or mailed postpaid (a) if to BCM, to Bache Capital
Management, Inc., 3 Berkshire Place, La Canada, CA 91011, (b) if to PGIMC, to
Pacific Global Investment Management Company, 206 North Jackson Street,
Glendale, CA 91206; and (c) if to the Corporation, at the foregoing office of
PGIMC.
11. Nothing in this Agreement shall limit or restrict the right of any
director, officer, or employee of BCM to engage in any other business or to
devote his or her time and attention in part to the management or other aspects
of any other business, whether of a similar nature or a dissimilar nature, nor
to limit or restrict the right of BCM to engage in any other business or to
render services of any kind to any other corporation, firm, individual, or
association.
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12. 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.
13. Except insofar as the 1940 Act or other federal laws and
regulations may be controlling, this Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PACIFIC GLOBAL
ATTEST: INVESTMENT MANAGEMENT COMPANY
_______________________ ______________________________________
President
ATTEST: BACHE CAPITAL MANAGEMENT, INC.
_______________________ ______________________________________
President
ATTEST: PACIFIC GLOBAL FUND, INC. d/b/a
PACIFIC ADVISORS FUND INC.
_______________________ ______________________________________
President
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