Pacific Select Fund NSAR 6-30-09
EXHIBIT 77Q1(e) COPIES OF ANY NEW OR AMENDED REGISTRANT
INVESTMENT ADVISORY CONTRACTS
The following documents are included in Registrant's Form Type N1A/A,
Accession No. 0000892569-09-000405 filed on April 16, 2009, and
incorporated by reference herein:
Temporary Advisory Fee Waiver Agreement Long/Short Large-Cap Portfolio
of Pacific Select Fund - Analytic Investors LLC
Temporary Advisory Fee Waiver Agreement Long/Short Large-Cap Portfolio
of Pacific Select Fund
Amended Advisory Agreement - BlackRock Investment Management, LLC
PACIFIC SELECT FUND
AMENDMENT NO. 2 TO THE PORTFOLIO MANAGEMENT AGREEMENT
The Portfolio Management Agreement (the Agreement) made the 1st day of
May, 2008, as amended to date, by and among Pacific Life Fund Advisors LLC
(Investment Adviser), a Delaware limited liability company, X.X. Xxxxxx
Investment Management Inc., (Portfolio Manager), a Delaware corporation
and Pacific Select Fund, a Massachusetts business trust (Fund), is hereby
amended to add the provisions set forth below (together the Amendment),
which is made this 8 day of April, 2009.
In consideration of the premises, the promises, and the mutual covenants
contained in the Agreement and the good and fair consideration paid in
connection with that Agreement, the Agreement is hereby amended by adding
the following after the last sentence in Section 2(c):
The Portfolio Manager recognizes that in order for the Portfolio to operate
consistent with its stated investment strategy as a long/short portfolio,
securities lending will be employed to finance both the short positions and
additional long positions. Related to securities lending, the Portfolio
Manager is responsible for timely communication of any written confirmation
of a buy-in to the Investment Adviser and the Funds custodian (Buy-in
Notification) that the Portfolio Manager receives from its broker/dealer(s)
with whom it executes trades. Timely notification is defined as follows:
1. If the buy-in occurs prior to the market open on the third day following
the settlement date of the trade (currently trade date + 6 for domestic
equities), then the Buy-in Notification must be sent to the Funds custodian
by 2 p.m. Eastern Time that same day, and
2. If the buy-in occurs on a day prior to the third day following settlement
date of the trade, then the Buy-in Notification must be sent to Funds
custodian as soon as reasonably practicable that same day.
If (i) the buy-in occurs prior to the market open on the third day following
the settlement date of the trade and the Portfolio Managers Buy-in
Notification is sent to the Funds custodian after 2 p.m. that same day
or (ii) the buy-in occurs on a day prior to the third day following
settlement date of the trade and the Portfolio Managers Buy-in Notification
is not sent that same day, the Portfolio Manager agrees to be liable to the
Fund for any losses incurred by the Fund as a result of such late Buy-In
Notification. If at any time the Portfolio Manager in its sole judgment
determines that the deadlines for Buy-in Notification set forth in this
Section 2(c) cannot be reasonably met by the Portfolio Manager on a
consistent basis going forward, the Portfolio Manager will immediately
notify the Investment Adviser and will transition the portfolio to a
long-only strategy in the most cost effective manner possible.
Concurrently, the Investment Adviser will instruct the Funds securities
lending agent to (i) recall all loaned securities within a maximum of
twenty business days, and (ii) cease lending securities from the Fund.
Upon the earlier of twenty business days after the Portfolio Managers
notice to the Investment Adviser or the Portfolio Managers receipt of
written confirmation from the Investment Adviser that all loaned
securities have been returned to the Fund, this Amendment will terminate.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed as of the day and year provided above for the Amendment.
PACIFIC LIFE FUND ADVISORS LLC
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx Xxxx
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx Xxxx
Title: Vice President Title: Assistant Secretary
X.X. XXXXXX INVESTMENT MANAGEMENT INC.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
PACIFIC SELECT FUND
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
PORTFOLIO MANAGEMENT AGREEMENT
AGREEMENT made effective the 1st day of May, 2009 among PACIFIC LIFE FUND
ADVISORS LLC, a Delaware Limited Liability Company ("Investment Adviser"), and
SSGA FUNDS MANAGEMENT, INC. a Massachusetts corporation ("Portfolio Manager"),
and PACIFIC SELECT FUND, a Massachusetts Business Trust (the "Fund").
WHEREAS, the Fund is registered with the Securities and Exchange Commission
("SEC") as an open-end, management investment company under the Investment
Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Investment Adviser is registered as an investment adviser
under the Investment Advisers Act of 1940, as amended ("Advisers Act");
WHEREAS, the Portfolio Manager is registered with the SEC as an investment
adviser under the Advisers Act;
WHEREAS, the Fund has retained the Investment Adviser to render investment
advisory services to the various portfolios of the Fund pursuant to an Advisory
Agreement, as amended, and such Agreement authorizes the Investment Adviser to
engage a portfolio manager to discharge the Investment Adviser's
responsibilities with respect to the investment management of such portfolios, a
copy of which has been provided to the Portfolio Manager and is incorporated
herein by reference;
WHEREAS, the Fund and the Investment Adviser desire to retain the Portfolio
Manager to furnish investment advisory services to one or more portfolios of the
Fund, and the Portfolio Manager is willing to furnish such services to such
portfolios and the Investment Adviser in the manner and on the terms hereinafter
set forth; and
NOW THEREFORE, in consideration of the promises and mutual covenants herein
contained, it is agreed among the Fund, the Investment Adviser, and the
Portfolio Manager as follows:
1. APPOINTMENT. The Fund and the Investment Adviser hereby appoint
Portfolio Manager to provide investment advisory services to the portfolios of
the Fund listed on Exhibit A attached hereto (each, a "Portfolio") for the
periods and on the terms set forth in this Agreement. The Portfolio Manager
accepts such appointment and agrees to furnish the services set forth herein for
the compensation herein provided.
In the event the Investment Adviser wishes to retain the Portfolio Manager
to render investment advisory services to one or more portfolios of the Fund
other than the Portfolio, the Investment Adviser shall notify the Portfolio
Manager in writing and shall revise Exhibit A to reflect such additional
portfolio(s). If the Portfolio Manager is willing to render such services, it
shall notify the Fund and the Investment Adviser in writing, whereupon such
portfolio shall become a Portfolio hereunder, and be subject to this Agreement.
2. PORTFOLIO MANAGER DUTIES. Subject to the supervision of the Fund's Board
of Trustees (the "Board") and the Investment Adviser, the Portfolio Manager will
provide a continuous investment program for the Portfolio and determine the
composition of the assets of the Portfolio. The Portfolio Manager will provide
investment research and analysis, which may include computerized investment
methodology, and will conduct a continuous program of evaluation, investment,
sales, and reinvestment of the Portfolio's 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 Portfolio, when these transactions should be executed, and what portion of
the assets of the Portfolio should be held in
the various securities and other investments in which it may invest, and the
Portfolio Manager is hereby authorized to execute and perform such services on
behalf of the Portfolio. To the extent permitted by the written investment
policies of the Portfolio, the Portfolio Manager shall make decisions for the
Portfolio 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 Portfolio. The Portfolio Manager is authorized to and shall
exercise tender offers, exchange offers and vote proxies on behalf of each
Portfolio, each as the Portfolio Manager determines is in the best interest of
the Portfolio. The Portfolio Manager is authorized to open brokerage accounts on
behalf of the Portfolio in accordance with Fund procedures. The Portfolio
Manager is authorized to enter into futures account agreements, ISDA master
agreements and related documents, and to open accounts and take other necessary
or appropriate actions related thereto, in accordance with Fund procedures.
In performing these duties, the Portfolio Manager:
(a) will 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
applicable to the Fund, to the Investment Adviser (as provided to the Portfolio
Manager by the Investment Adviser), or to the Portfolio Manager), (2) applicable
rules and regulations under the Securities Exchange Act of 1934, as amended (the
"1934 Act") (3) all other applicable federal and state laws and regulations
pertaining to investment vehicles underlying variable annuity and/or variable
life insurance contracts, (4) any applicable written procedures, policies and
guidelines adopted by the Board and furnished to the Portfolio Manager, (5) the
Fund's objectives, investment policies and investment restrictions as stated in
the Fund's Prospectus and Statement of Additional Information as supplemented or
amended from time to time, as furnished to the Portfolio Manager, (6) the
provisions of the Fund's Registration Statement filed on Form N-1A under the
Securities Act of 1933 (the "1933 Act") and the 1940 Act, as supplemented or
amended from time to time (the "Registration Statement"), (7) Section 851(b)(2)
and (3) of Subchapter M of the Internal Revenue Code of 1986, as amended (the
"Code"), (8) the provisions of Section 817(h) of the Code, applicable to the
Portfolio; and (9) any other applicable laws and regulations, including without
limitation, proxy voting regulations. To the extent that the Portfolio Manager
engages in transactions that require segregation of assets or other
arrangements, including but not limited to, options, futures contracts, short
sales or borrowing transactions, the Portfolio Manager shall designate to the
Fund's Custodian those assets to be segregated in accordance with the 1940 Act,
if necessary, based upon trading strategies and positions the Portfolio Manager
employs on behalf of the Portfolio, as well as to segregate assets, if
necessary, in accordance with the 1934 Act and any other requirements of
broker/dealers who may execute transactions for the Portfolio in connection
therewith. Until the Investment Adviser delivers any supplements or amendments
to the Portfolio Manager, the Portfolio Manager shall be fully protected in
relying on the Fund's Registration Statement previously furnished by the
Investment Adviser to the Portfolio Manager. In managing the Portfolio in
accordance with the requirements of this Section 2, the Portfolio Manager shall
be entitled to receive and act upon advice of counsel to the Fund, to the
Investment Adviser or to the Portfolio Manager that is also acceptable to the
Investment Adviser.
(b) will (i) identify each position in the Portfolio that constitutes
stock in a Passive Foreign Investment Company ("PFIC"), as that term is defined
in Section 1296 of the Code, and (ii) make such determinations and inform the
Investment Adviser at least annually (or more often and by such date(s) as the
Investment Adviser shall request) of any stock in a PFIC.
(c) is responsible, in connection with its responsibilities under this
Section 2, for decisions to buy and sell securities and other investments for
the Portfolio, for broker-dealer
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and futures commission merchant ("FCM") selection, and for negotiation of
commission rates. The Portfolio Manager's primary consideration in effecting a
security or other transaction will be to obtain the best execution for the
Portfolio, taking into account the factors specified in the Prospectus and
Statement of Additional Information for the Fund, as they may be amended or
supplemented from time to time and furnished to the Portfolio Manager. Subject
to such policies as the Board may determine and consistent with Section 28(e) of
the Securities Exchange Act of 1934, as amended (the "1934 Act"), the Portfolio
Manager shall not be deemed to have acted unlawfully or to have breached any
duty created by this Agreement or otherwise solely by reason of its having
caused the Portfolio to pay a broker or dealer, acting as agent, for effecting a
Portfolio transaction at a price in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction, if the
Portfolio Manager determines in good faith that such amount of commission was
reasonable in relation to the value of the brokerage and research services
provided by such broker or dealer, viewed in terms of either that particular
transaction or the Portfolio Manager's (or its affiliates') overall
responsibilities with respect to the Portfolio 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 1934 Act and Rule
11a2-2(T) thereunder, and subject to any other applicable laws and regulations
including Section 17(e) of the 1940 Act, the Portfolio Manager is further
authorized to place orders on behalf of the Portfolio through the Portfolio
Manager if the Portfolio Manager is registered as a broker or dealer with the
SEC or as a FCM with the Commodities Futures Trading Commission ("CFTC"),
through any of its affiliates that are brokers or dealers or FCMs or such other
entities which provide similar services in foreign countries, or through such
brokers and dealers that also provide research or statistical research and
material, or other services to the Portfolio or the Portfolio Manager. Such
allocation shall be in such amounts and proportions as the Portfolio Manager
shall determine consistent with the above standards, and, upon request, the
Portfolio Manager will report on said allocation to the Investment Adviser and
Board, indicating the brokers, dealers or FCMs to which such allocations have
been made and the basis therefor. The Portfolio Manager shall not direct
brokerage to any broker-dealer in recognition of, or otherwise take into account
in making brokerage allocation decisions, sales of shares of a Portfolio or of
any other investment vehicle by that broker-dealer.
(d) may, on occasions when the purchase or sale of a security is
deemed to be in the best interest of a Portfolio 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 the Registration Statement as
furnished to the Portfolio 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 Portfolio Manager in a manner that is fair and equitable and
consistent with the Portfolio Manager's fiduciary obligations to the Portfolio
and to such other clients.
(e) will, in connection with the purchase and sale of securities for
the Portfolio, together with the Investment Adviser, arrange for the
transmission to the custodian and recordkeeping agent for the Fund, on a daily
basis, such confirmation(s), trade tickets, and other documents and information,
including, but not limited to, CUSIP, SEDOL, or other numbers that identify
securities to be purchased or sold on behalf of the Portfolio, as may be
reasonably necessary to enable the custodian and recordkeeping agent to perform
its administrative and recordkeeping responsibilities with respect to the
Portfolio, and with respect to Portfolio securities to be purchased or sold
through the Depository Trust Company, will arrange for the automatic
transmission of the confirmation of such trades to the Fund's custodian and
recordkeeping agent, and, if required, the Investment Adviser. The Portfolio
Manager agrees to comply with such rules, procedures and time frames as the
Fund's custodian may reasonably set or provide with respect to the clearance and
settlement of transactions for a
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Portfolio, including but not limited to submission of trade tickets. Any
Portfolio assets shall be delivered directly to the Fund's custodian.
(f) will provide reasonable assistance to the Investment Adviser,
custodian or recordkeeping agent for the Fund and the Fund's Board in connection
with any valuation determination for the Portfolios, consistent with the
procedures and policies stated in the Fund's valuation procedures and/or the
Registration Statement, the value of any portfolio securities or other assets of
the Portfolio for which the Investment Adviser, custodian or recordkeeping agent
or the Fund Board reasonably seeks assistance from the Portfolio Manager.
Such reasonable assistance shall include (but is not limited to): (i)
designating and providing timely access, on an as-needed basis and upon the
reasonable request of the Investment Adviser or custodian, to one or more
employees of the Portfolio Manager who are knowledgeable about the
security/issuer, its financial condition, trading and/or other relevant factors
for valuation, which employees shall be available for consultation when the
Board's Valuation Committee convenes; (ii) applying to the Portfolio's assets
the Portfolio Manager's procedures used for recommending the fair valuation of
assets held by the other accounts under management of the Portfolio Manager and
notifying the Investment Adviser of the valuation of such assets determined
under such procedures, including in the event that the application of such
procedures would result in a determination of fair value with respect to any
asset held by the Portfolio where a market quotation is not readily available or
is deemed to be unreliable with respect to such asset; (iii) notifying the
Investment Adviser in the event any Portfolio security's value does not appear
to reflect material corporate actions, news, significant events or such security
otherwise requires review to determine if fair valuation is necessary under the
Fund's procedures; provided however that the Portfolio Manager shall have no
obligation to affirmatively monitor Portfolio holdings for material corporate
actions, news, and/or significant events; (iv) upon the request of the
Investment Adviser or custodian, assisting in obtaining bids and offers or
quotes from broker/dealers or market-makers with respect to securities held by
the Portfolio; (v) verifying pricing and providing fair valuations
recommendations for fair valuations in accordance with the Fund's valuation
procedures, as they may be amended from time to time; and (vi) maintaining
adequate records and written backup information with respect to the securities
valuation services provided hereunder, and providing such information to the
Investment Adviser or the Fund upon request. Such records shall be deemed to be
Fund records.
Notwithstanding the foregoing, the Investment Adviser and the Fund
acknowledge that the Portfolio Manager is not the pricing agent for the Fund and
is not responsible for valuing the Fund's securities.
(g) will maintain and preserve such records related to each
Portfolio's transactions as required under the 1940 Act and the Advisers Act.
The Portfolio Manager will make available to the Fund and the Investment Adviser
promptly upon request, any of the Portfolio's investment records and ledgers
maintained by the Portfolio Manager (which shall not include the records and
ledgers maintained by the custodian and recordkeeping agent for the Fund), as
are necessary to assist the Fund and the Investment Adviser in complying 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 the Fund are being
conducted in a manner consistent with applicable laws and regulations.
(h) will regularly report to the Board on the investment program for
the Portfolio and the issuers and securities represented in the Portfolio, and
will furnish the Board, with respect to the Portfolio, such periodic and special
reports as the Board and the Investment Adviser may reasonably request,
including, but not limited to, reports concerning transactions and performance
of each Portfolio, a quarterly compliance checklist, reports regarding
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compliance with the Fund's procedures pursuant to Rules 17e-l, 17a-7, 10f-3 and
12d3-1 under the 1940 Act, 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, IOs/POs, confirmation of the liquidity of all other securities in the
Funds, and compliance with the Portfolio Manager's Code of Ethics, and such
other reports or certifications that the Investment Adviser may reasonably
request from time to time.
(i) has adopted a written Code of Ethics complying with the
requirements of Rule 17j-l under the 1940 Act and Rule 204A-l under the Advisers
Act and will provide the Investment Adviser and the Fund with a copy of the Code
of Ethics, together with evidence of its adoption. Within 30 days of the end of
each calendar quarter during which this Agreement remains in effect, the chief
compliance officer and/or president and/or managing director (as the Investment
Adviser determines appropriate) of the Portfolio Manager shall certify to the
Investment Adviser that the Portfolio Manager has complied with the requirements
of Rule 17j-l during the previous calendar quarter and that there have been no
material violations of the Code of Ethics or, if a material violation has
occurred, that appropriate action has been taken in response to such violation.
Upon written request of the Investment Adviser or the Fund, the Portfolio
Manager shall permit representatives of the Investment Adviser and the Trust to
examine the reports (or summaries of the reports) required to be made under the
Code of Ethics and other records evidencing enforcement of the Code of
Ethics.(j) will provide to the Investment Adviser a copy of the Portfolio
Manager's Form ADV, and any supplements or amendments thereto, as filed with the
SEC, on an annual basis (or more frequently if requested by the Investment
Adviser or the Board) including any portion which contains disclosure of legal
or regulatory actions. The Portfolio Manager represents and warrants that it is
a duly registered investment adviser under the Advisers Act and will notify the
Investment Adviser immediately if any action is brought by any regulatory body
which would affect that registration. The Portfolio Manager will provide a list
of persons whom the Portfolio Manager wishes to have authorized to give written
and/or oral instructions to Custodians of assets for the Portfolio.
(k) will be responsible for the preparation and filing of such reports
with respect to the assets of the Portfolio reflecting holdings over which the
Portfolio Manager or its affiliates have investment discretion as may be
required from time to time, including but not limited to Schedule 13G, Form 13F
and Form SH.
(l) will not permit any employee of the Portfolio Manager to have any
material involvement with the management of the Portfolio 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
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 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
5
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.
(m) 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 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. The Fund and the Investment Adviser will not disclose or
use any records or information with respect to the Portfolio Manager obtained
pursuant to this Agreement, in any manner whatsoever except as expressly
authorized in this Agreement, and will keep confidential any information
obtained pursuant to this Agreement, and disclose such information only as
expressly authorized in this Agreement, if the Board 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.
(n) will assist the Investment Adviser, the Fund, and any of its or
their trustees, directors, officers, and/or employees in complying with the
provisions of the Xxxxxxxx-Xxxxx Act of 2002 to the extent such provisions
relate to the services to be provided by, and the obligations of, the Portfolio
Manager hereunder. Specifically, and without limitation to the foregoing, the
Portfolio Manager agrees to provide certifications to the principal executive
and financial officers of the Fund (the "certifying officers") that correspond
to and/or support the certifications required to be made by the certifying
officers in connection with the preparation and/or filing of the Fund's Form
N-CSRs, N-Qs, N-SARs, shareholder reports, financial statements, and other
disclosure documents or regulatory filings, in such form and content as the Fund
shall reasonably request or in accordance with procedures adopted by the Fund.
(o) is, along with its affiliated persons, permitted to enter into
transactions with the other portfolios of the Fund and affiliated persons of
those other portfolios of the Fund (collectively, the "Other Portfolios"). In
doing so, the Portfolio Manager is prohibited from consulting with the
Investment Adviser or the portfolio managers of these Other Portfolios
concerning securities transactions of the Portfolio except for the purpose of
complying with the conditions of Rule 12d3-1(a) and (b) under the 1940 Act.
(p) will exercise voting rights with respect to portfolio securities
held by a Portfolio in accordance with written policies and procedures adopted
by the Portfolio Manager, which may be amended from time to time, and which at
all times shall comply with the requirements of applicable federal statutes and
regulations and any related SEC guidance relating to such statutes and
regulations (collectively, "Proxy Voting Policies and Procedures"). The
Portfolio Manager shall vote proxies on behalf of each Portfolio in a manner
deemed by the Portfolio Manager to be in the best interests of each Portfolio
pursuant to the Portfolio Manager's written Proxy Voting Policies and
Procedures. The Portfolio Manager shall provide disclosure regarding the Proxy
Voting Policies and Procedures in accordance with the requirements of Form N-1A
for inclusion in the Registration Statement. The Portfolio Manager shall report
to the Investment Adviser in a timely manner a record of all proxies voted, in
such form and format that complies with acceptable federal statutes and
regulations (e.g., requirements of Form N-PX). The Portfolio Manager shall
certify at least annually or more often as may reasonably be requested by the
Investment Adviser, as to its compliance with its own Proxy Voting Policies and
Procedures and applicable federal statues and regulations.
6
(q) will provide reasonable assistance to the Fund and the Fund's
Chief Compliance Officer ("CCO") in complying with Rule 38a-l under the 1940
Act. Specifically, the Portfolio Manager represents and warrants that it shall
maintain a compliance program in accordance with the requirements of Rule
206(4)-7 under the Advisers Act, and shall provide the CCO with reasonable
access to information regarding the Portfolio Manager's compliance program,
which access shall include on-site visits with the Portfolio Manager as may be
reasonably requested from time to time. In connection with the periodic review
and annual report required to be prepared by the CCO pursuant to Rule 38a-l, the
Portfolio Manager agrees to provide certifications as may be reasonably
requested by the CCO related to the design and implementation of the Portfolio
Manager's compliance program.
(r) will comply with the Fund's policy on selective disclosure of
portfolio holdings of the Fund (the "Selective Disclosure Policy"), as provided
in writing to the Portfolio Manager and as may be amended from time to time. The
Portfolio Manager agrees to provide a certification with respect to compliance
with the Fund's Selective Disclosure Policy as may be reasonably requested by
the Fund from time to time.
(s) will use its best efforts to notify the Investment Adviser
promptly in the event that, in the judgment of the Portfolio Manager, Portfolio
share transaction activity becomes disruptive to the ability of the Portfolio
Manager to effectively manage the assets of a Portfolio consistent with the
Portfolio's investment objectives and policies.
(t) will provide reasonable assistance as may be reasonably requested
by the Investment Adviser in connection with compliance by the Portfolio with
any current or future legal and regulatory requirements related to the services
provided by the Portfolio Manager hereunder.
(u) will provide such certifications to the Fund as the Fund or the
Investment Adviser may reasonably request related to the services provided by
the Portfolio Manager hereunder, including (but not limited to) certifications
of compliance with Trust procedures, the Registration Statement, and applicable
securities regulations.
(v) The Portfolio Manager shall not be responsible for filing proofs
of claim or otherwise participating in class action lawsuits with respect to
securities held by a Portfolio.
(w) will provide reasonable assistance to the Investment Adviser with
respect to the annual audit of the Fund's financial statements, including, but
not limited to: (i) providing broker contacts as needed for obtaining trade
confirmations (in particular with respect to investments in loans (including
participations and assignments) and all derivatives, including swaps); (ii)
providing copies of all documentation relating to investments in loans
(including participations and assignments) and derivative contracts, within a
reasonable time after the execution of such documentation; (iii) providing
assistance in obtaining trade confirmations in the event the Fund or the Fund's
independent registered public accounting firm is unable to obtain such
confirmations directly from the brokers; and (iv) obtaining market quotations
for investments (including investments in loans (including participations and
assignments) and derivatives) that are not readily ascertainable in the event
the Fund or the Fund's independent registered public accounting firm is unable
to obtain such market quotations through independent means.
(x) will, on an annual basis,provide the Investment Adviser and the
Fund with comparative fee information of all other accounts managed by Portfolio
Manager with the same or substantially similar investment objectives and
policies.
3. DISCLOSURE ABOUT PORTFOLIO MANAGER AND PORTFOLIO.
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(a) The Portfolio Manager represents that it has reviewed the current
Registration Statement and agrees to promptly review future amendments to the
Registration Statement, including any supplements thereto, which relate to the
Portfolio Manager or the Portfolio, filed with the SEC (or which will be filed
with the SEC in the future) and represents and warrants that, solely with
respect to the disclosure respecting or relating to the Portfolio Manager,
including any performance information the Portfolio Manager provides that is
included in or serves as the basis for information included in the Registration
Statement, such Registration Statement contains as of the date hereof, and will
contain as of the date of any 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 Portfolio Manager further
agrees to notify the Investment Adviser and the Fund immediately of any material
fact about the Portfolio Manager, known to the Portfolio Manager respecting or
relating to the Portfolio Manager, that is not contained in the Registration
Statement or prospectus for the Fund, or any amendment or supplement thereto, or
of any statement respecting or relating to the Portfolio Manager contained
therein that becomes untrue in any material respect. With respect to the
disclosure respecting each Portfolio, the Portfolio Manager represents and
agrees that each Portfolio's description in the Fund's prospectus, including the
Portfolio's goal, investment strategies and risks (the "Portfolio Description")
as of the date of this Agreement and as of the date of any Registration
Statement or supplement thereto, is consistent with the manner in which the
Portfolio Manager intends to manage each Portfolio, and the identification of
risks is inclusive of all material risks known to the Portfolio Manager that are
expected to arise in connection with the manner in which the Portfolio Manager
intends to manage the Portfolio. The Portfolio Manager further agrees to notify
the Investment Adviser and the Fund promptly in the event that the Portfolio
Manager becomes aware that the Portfolio Description for a Portfolio is
inconsistent in any material respect with the manner in which the Portfolio
Manager is managing the Portfolio, and in the event that the identified risks
are inconsistent in any material respect with the risks known to the Portfolio
Manager that arise in connection with the manner in which the Portfolio Manager
is managing the Portfolio. In addition, the Portfolio Manager agrees to comply
with the Investment Adviser's reasonable request for information regarding the
personnel of the Portfolio Manager who are responsible for the day-to-day
management of a Portfolio's assets.
(b) The Investment Adviser shall provide the Portfolio Manager with drafts
of any prospective amendments to the Registration Statement that relate to the
Portfolio Manager or the Portfolio reasonably in advance of any prospective
filing and/or distribution date for the Portfolio Manager to review and comment.
The Portfolio Manager shall not be responsible for any disclosure in the
Registration Statement that has not been provided to the Portfolio Manager with
reasonable time for review prior to filing and/or distribution.
4. EXPENSES. The Portfolio Manager shall bear all expenses incurred by it
and its staff with respect to all activities in connection with the performance
of the Portfolio Manager's services under this Agreement, including but not
limited to salaries, overhead, travel, preparation of Board materials, review of
marketing materials relating to Portfolio Manager or other information provided
by Portfolio Manager to the Investment Adviser and/or the Funds Distributor, and
marketing support. Portfolio Manager agrees to pay to the Investment Adviser the
cost of generating a prospectus supplement, which includes preparation, filing,
printing, and distribution (including mailing) of the supplement, if the
Portfolio Manager makes any changes that require immediate disclosure in the
prospectus or any required regulatory documents by supplement, including changes
to its structure or ownership, to investment personnel, to investment style or
management, or otherwise ("Changes"), and at the time of notification to the
Fund by the Portfolio Manager of such Changes. In the event, the Fund is
generating a supplement for other purposes at the same time as a supplement is
required for the Portfolio Manager as described above, the Fund will seek to
combine its supplement with the supplement
8
required for the Portfolio Manager and will share the expenses pro rata with the
Portfolio Manager based upon the number of pages required by the Fund and the
Portfolio Manager, so long as combining the two supplements is not economically
disadvantageous to the Fund, . In the event two or more portfolio managers each
require a supplement simultaneously, the expense of each supplement will be
shared pro rata with such other portfolio manager(s) based upon the number of
pages required by each such portfolio manager. All other expenses not
specifically assumed by the Portfolio Manager hereunder or by the Investment
Adviser under the Advisory Agreement are borne by the applicable Portfolio of
the Fund. The Fund, the Portfolio Manager and the Investment Adviser shall not
be considered as partners or participants in a joint venture.
5. COMPENSATION. For the services provided and the expenses borne by the
Portfolio Manager pursuant to this Agreement, the Investment Adviser will pay to
the Portfolio Manager a fee in accordance with Exhibit A attached to this
Agreement. This fee will be computed and accrued daily and payable monthly. The
fees for any month during which this Agreement is in effect for less than the
entire month shall be pro-rated based on the number of days during such month
that the Agreement was in effect.
6. SEED MONEY. The Investment Adviser agrees that the Portfolio Manager
shall not be responsible for providing money for the initial capitalization of
any Portfolio.
7. COMPLIANCE.
(a) The Portfolio Manager agrees that it shall immediately notify the
Investment Adviser and the Fund (i) in the event that the SEC, CFTC, or any
banking or other regulatory body has censured the Portfolio 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; (ii) upon having a reasonable basis for
believing that a Portfolio has ceased to qualify or might not qualify as a
regulated investment company under Subchapter M of the Code; and (iii) upon
having a reasonable basis for believing that the Portfolio has ceased to comply
with the diversification provisions of Section 817(h) of the Code or the
Regulations thereunder. The Portfolio Manager further agrees to notify the
Investment Adviser and Fund immediately of any material fact known to the
Portfolio Manager respecting or relating to the Portfolio Manager that is not
contained in the Registration Statement, or 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 immediately notify the
Portfolio Manager (i) in the event that the SEC has censured the Investment
Adviser or the Fund; placed limitations upon either of their activities,
functions, or operations; suspended or revoked the Investment Adviser's
registration as an investment adviser; or has commenced proceedings or an
investigation that may result in any of these actions; (ii) upon having a
reasonable basis for believing that a Portfolio has ceased to qualify or might
not qualify as a regulated investment company under Subchapter M of the Code; or
(iii) upon having a reasonable basis for believing that the Portfolio has ceased
to comply with the diversification provisions of Section 817(h) of the Code or
the Regulations thereunder.
8. INDEPENDENT CONTRACTOR. The Portfolio Manager shall for all purposes
herein be deemed to be an independent contractor and shall, unless otherwise
expressly provided herein or authorized by the Investment Adviser from time to
time, have no authority to act for or represent the Investment Adviser in any
way or otherwise be deemed its agent. The Portfolio Manager understands that
unless provided herein or authorized from time to time by the Fund, the
Portfolio Manager shall have no authority to act for or represent the Fund in
any way or otherwise be deemed the Fund's agent.
9
9. BOOKS AND RECORDS. In compliance with the requirements of and to the
extent required by Section 31(a) of the 1940 Act and the rules thereunder, the
Portfolio Manager hereby agrees that all records which it maintains for the
Portfolio are the property of the Fund and further agrees to surrender promptly
to the Fund any of such records upon the Fund's or the Investment Adviser's
request, although the Portfolio 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 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 this
Agreement, it is understood and agreed that the Fund reserves the right to
direct, approve or disapprove any action hereunder taken on its behalf by the
Portfolio Manager, provided, however, that the Portfolio Manager shall not be
liable for any losses to the Fund resulting from the Fund's direction, or from
the Fund's disapproval of any action proposed to be taken by the Portfolio
Manager.
12. SERVICES NOT EXCLUSIVE. It is understood that the services of the
Portfolio Manager and its employees are not exclusive, and nothing in this
Agreement shall prevent the Portfolio 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 Portfolio) or from engaging in other activities.
13. LIABILITY. Except as may otherwise be required by the 1940 Act or the
rules thereunder or other applicable law, the Fund and the Investment Adviser
agree that the Portfolio Manager, any affiliated person of the Portfolio
Manager, and each person, if any, who, within the meaning of Section 15 of the
1933 Act, controls the Portfolio Manager, shall not be liable for, or subject to
any damages, expenses, or losses in connection with, any act or omission
connected with or arising out of any services rendered under this Agreement,
except by reason of willful misfeasance, bad faith, or gross negligence in the
performance of the Portfolio Manager's duties, or by reason of reckless
disregard of the Portfolio Manager's obligations and duties under this
Agreement. Notwithstanding the foregoing, nothing contained in this Agreement
shall constitute a waiver or limitation of rights that the Fund may have under
federal or state securities laws.
14. INDEMNIFICATION.
(a) The Portfolio Manager agrees to indemnify and hold harmless, the
Investment Adviser, any affiliated person within the meaning of Section 2(a)(3)
of the 1940 Act ("affiliated person") of the Investment Adviser, and each
person, if any, who, within the meaning of Section 15 of the 1933 Act, controls
("controlling person") the Investment Adviser (collectively, "PL Indemnified
Persons") against any and all losses, claims, damages, liabilities or litigation
(including reasonable legal and other expenses), to which the Investment Adviser
or such affiliated person or controlling 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 Portfolio Manager's responsibilities to the
Fund which (i) are based upon any willful misfeasance, bad faith, gross
negligence, or reckless disregard of, the Portfolio Manager's obligations and/or
duties under this Agreement by the Portfolio Manager or by any of its directors,
officers or employees, or any affiliate acting on behalf of the Portfolio
Manager (other than a PL Indemnified Person), or (ii) are based upon any untrue
statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus covering the Shares of the Fund or any
Portfolio, 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
10
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
Investment Adviser, the Fund, or any affiliated person of the Fund by the
Portfolio Manager or any affiliated person of the Portfolio Manager (other than
a PL Indemnified Person) provided, however, that in no case is the Portfolio
Manager's indemnity 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 obligations and duties
under this Agreement.
(b) The Investment Adviser agrees to indemnify and hold harmless the
Portfolio Manager, any affiliated person within the meaning of Section 2(a)(3)
of the 1940 Act of the Portfolio Manager and each person, if any, who, within
the meaning of Section 15 of the 1933 Act controls ("controlling person") the
Portfolio Manager (collectively, "Portfolio Manager Indemnified Persons")
against any and all losses, claims, damages, liabilities or litigation
(including reasonable legal and other expenses) to which a Portfolio 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 Investment Adviser's responsibilities as Investment Adviser of the Fund
which (i) are based upon any willful misfeasance, bad faith or gross negligence
by the Investment Adviser, any of its directors, officers, or employees or any
affiliate acting on behalf of the Investment Adviser (other than a Portfolio
Manager Indemnified Person), or (ii) are based upon any untrue statement or
alleged untrue statement of a material fact contained in a Registration
Statement or prospectus covering the Shares of the Fund or any Portfolio, 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, unless such a statement or omission
was made in reliance upon information furnished in writing to the Investment
Adviser, the Fund, or any affiliated person of the Fund by the Portfolio Manager
or any affiliated person of the Portfolio Manager (other than a PL Indemnified
Person) provided however, that in no case is the Investment Adviser's indemnity
in favor of the Portfolio Manager Indemnified Persons deemed to protect such
person against any liability to which any such person would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance of his duties, or by reason of his reckless disregard of obligations
and duties under this Agreement.
15. DURATION AND TERMINATION. This Agreement shall become effective as of
the date of execution first written above, and shall continue in effect for two
years and continue thereafter on an annual basis with respect to each Portfolio;
provided that such annual continuance is specifically approved at least annually
(a) by the vote of a majority of the Board, or (b) by the vote of a majority of
the outstanding voting shares of each Portfolio, and provided that continuance
is also approved by the vote of a majority of the Board who are not parties to
this Agreement or "interested persons" (as such term is defined in the 1940 Act)
of the Fund, the Investment Adviser, or the Portfolio Manager, cast in person at
a meeting called for the purpose of voting on such approval.
This Agreement may be terminated with respect to any Portfolio:
(a) by the Fund at any time with respect to the services provided by
the Portfolio Manager, without the payment of any penalty, by vote of a majority
of the Board or by a vote of a majority of the outstanding voting shares of the
Fund or, with respect to a particular Portfolio, by vote of a majority of the
outstanding voting shares of such Portfolio, upon sixty (60) days' prior written
notice to the Portfolio Manager and the Investment Adviser;
(b) by the Portfolio Manager at any time, without the payment of any
penalty, upon sixty (60) days' prior written notice to the Investment Adviser
and the Fund.
11
(c) by the Investment Adviser at any time, without the payment of any
penalty, upon sixty (60) days' prior written notice to the Portfolio Manager and
the Fund.
This Agreement will terminate automatically in event of its assignment
under the 1940 Act and any rules adopted by the SEC thereunder, but shall not
terminate in connection with any transaction not deemed an assignment. In the
event this Agreement is terminated or is not approved in the manner described
above (i) Portfolio Manager agrees to provide all reports, certification and
assistance called for pursuant to paragraphs 2(b), 2(h), 2(i), 2(k), 2(n), 2(p),
and 2(q) within 30 business days of termination; and (ii) the Sections or
Paragraphs numbered 2(g) for a period of six years, and 2(m), 2(t), 2(v), 9, 10,
13, 14, 16, 17, 18 and 19 of this Agreement as well as any applicable provision
of this Paragraph numbered 15 shall remain in effect.
16. USE OF NAME.
(a) It is understood that the name "Pacific Life Insurance Company",
"Pacific Life Fund Advisors LLC", "Pacific Asset Management", and "Pacific
Select Fund" and any abbreviated forms and any derivatives thereof and any logos
associated with those names (including, without limitation, the whale logo) are
the valuable property of the Investment Adviser and its affiliates, and that the
Portfolio Manager shall not use such names (or abbreviations, derivatives or
logos) without the prior written approval of the Investment Adviser and only so
long as the Investment Adviser is an investment adviser to the Fund and/or the
Portfolio. Upon termination of this Agreement, the Portfolio Manager shall
forthwith cease to use such names (or abbreviations, derivatives or logos).
(b) It is understood that the names "State Street Global Advisors",
"SSgA", "SSgA Funds Management, Inc." and "SSgA FM" and any derivative thereof
or any logo associated with that name is the valuable property of the Portfolio
Manager and that the Fund and the Investment Adviser have the right to use such
name (or derivative or logo), in the Fund's prospectus, SAI and Registration
Statement or other filings, forms or reports required under applicable state or
federal securities, insurance, or other law, for so long as the Portfolio
Manager is a Portfolio Manager to the Fund and/or one of the Portfolio,
provided, however, that the Fund may continue to use the name of the Portfolio
Manager in its Registrations Statement and other documents to the extent deemed
necessary by the Fund to comply with disclosure obligations under applicable law
and regulation. Neither the Fund nor the Investment Adviser shall use the
Portfolio Manager's name or logo in promotional or sales related materials
prepared by or on behalf of the Investment Adviser or the Fund, without prior
review and approval by the Portfolio Manager, which may not be unreasonably
withheld. Upon termination of this Agreement, the Fund and the Investment
Adviser shall forthwith cease to use such names (and logo), except as provided
for herein.
17. LIMITATION OF LIABILITY. A copy of the Declaration of Trust for the
Fund is on file with the Secretary of the State of Massachusetts. The
Declaration of Trust has been executed on behalf of the Fund by a Trustee of the
Fund in his capacity as Trustee of the Fund and not individually. The
obligations of this Agreement with respect to each Portfolio shall be binding
upon the assets and property of each such Portfolio individually, and not
jointly, and shall not be binding upon any Trustee, officer, employee, agent or
shareholder, whether past, present, or future, of the Fund individually, or upon
the Fund generally or upon any other portfolio of the Fund.
18. NOTICES. All notices and other communications hereunder shall be in
writing sent by facsimile first, if practicable, but shall only be deemed given
if delivered in person or by messenger, cable, certified mail with return
receipt, or by a reputable overnight delivery service which provides evidence of
receipt to the parties at the following addresses (or at such other address or
number for a party as shall be specified by like notice):
12
A. if to the Portfolio Manager, to:
SSgA Funds Management, Inc.
State Street Financial Center, 30th Floor
0 Xxxxxxx Xxxxxx
Boston, MA 02111
Facsimile transmission number: 000-000-0000
Attention: Xxxxx X. Xxxx
B. if to the Investment Adviser, to:
Pacific Life Fund Advisors LLC
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Facsimile transmission number: (000) 000-0000
Attention: Xxxxx X. Xxxxx
C. if to the Fund, to:
Pacific Select Fund
c/o Pacific Life Insurance Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Facsimile transmission number: (000) 000-0000
Attention: Xxxxx X. Xxxxx
19. MISCELLANEOUS.
(a) This Agreement shall be governed by the laws of California,
without regard to the conflict of law principles thereof, provided that nothing
herein shall be construed in a manner inconsistent with the 1940 Act, the
Advisers Act, 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.
(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 terminates automatically upon assignment.
(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.
13
PACIFIC LIFE FUND ADVISORS, LLC
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------- ----------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
Title: President and Chief Title: Vice President & Secretary
Executive Officer
SSGA FUNDS MANAGEMENT, INC.
By: /s/ Xxxxx Xxxx By:
------------------------------- ----------------------------------
Name: Xxxxx Xxxx Name:
Title: President Title:
PACIFIC SELECT FUND
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------- ----------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
Title: Chairman and Chief Title: Secretary
Executive Officer
14
EXHIBIT A
PACIFIC SELECT FUND
FEE SCHEDULE
EFFECTIVE: MAY 1, 2009
PORTFOLIO: PD AGGREGATE BOND INDEX PORTFOLIO
The Investment Adviser will pay to the Portfolio Manager a monthly fee for
its services for the PD Aggregate Bond Index Portfolio based onthe annual
percentage of the average daily net assets of the Portfolio according to
the following schedule:
RATE% BREAK POINT (ASSETs)
----- --------------------
0.06% On the first $50 million
0.05% On the next $50 million; and
0.04% On any amounts in excess of $100 million
PORTFOLIO: PD HIGH YIELD BOND INDEX PORTFOLIO
The Investment Adviser will pay to the Portfolio Manager a monthly fee for
its services for the PD High Yield Bond Index Portfolio based on the annual
percentage of the average daily net assets of the Portfolio according to
the following schedule:
RATE% BREAK POINT (ASSETs)
----- --------------------
0.25% On the first $50 million
0.12% On the next $50 million; and
0.04% On any amount in excess of $100 million
Fees for services shall be prorated for either Portfolio for any portion of a
year in which the Agreement is not effective with respect to that Portfolio.
15
PORTFOLIO MANAGEMENT AGREEMENT
AGREEMENT made effective the 1st day of May, 2009 among PACIFIC LIFE FUND
ADVISORS LLC, a Delaware Limited Liability Company ("Investment Adviser"), and
DIMENSIONAL FUND ADVISORS LP, a Delaware Limited Partnership ("Portfolio
Manager"), and PACIFIC SELECT FUND, a Massachusetts Business Trust (the "Fund").
WHEREAS, the Fund is registered with the Securities and Exchange Commission
("SEC") as an open-end, management investment company under the Investment
Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Investment Adviser is registered as an investment adviser
under the Investment Advisers Act of 1940, as amended ("Advisers Act");
WHEREAS, the Portfolio Manager is registered with the SEC as an investment
adviser under the Advisers Act;
WHEREAS, the Fund has retained the Investment Adviser to render investment
advisory services to the various portfolios of the Fund pursuant to an Advisory
Agreement, as amended, and such Agreement authorizes the Investment Adviser to
engage a portfolio manager to discharge the Investment Adviser's
responsibilities with respect to the investment management of such portfolios;
WHEREAS, the Fund and the Investment Adviser desire to retain the Portfolio
Manager to furnish investment advisory services to one or more portfolios of the
Fund, and the Portfolio Manager is willing to furnish such services to such
portfolios and the Investment Adviser in the manner and on the terms hereinafter
set forth; and
NOW THEREFORE, in consideration of the promises and mutual covenants herein
contained, it is agreed among the Fund, the Investment Adviser, and the
Portfolio Manager as follows:
1. APPOINTMENT. The Fund and the Investment Adviser hereby appoint
Dimensional Fund Advisors LP to act as Portfolio Manager to provide investment
advisory services to the portfolios of the Fund listed on Exhibit A attached
hereto (each, a "Portfolio") for the periods and on the terms set forth in this
Agreement. The Portfolio Manager accepts such appointment and agrees to furnish
the services herein set forth for the compensation herein provided.
In the event the Investment Adviser wishes to retain the Portfolio Manager
to render investment advisory services to one or more portfolios of the Fund
other than the Portfolio, the Investment Adviser shall notify the Portfolio
Manager in writing and shall revise Exhibit A to reflect such additional
portfolio(s). If the Portfolio Manager is willing to render such services, it
shall notify the Fund and the Investment Adviser in writing, whereupon such
portfolio shall become a Portfolio hereunder, and be subject to this Agreement.
2. PORTFOLIO MANAGER DUTIES. Subject to the supervision of the Fund's Board
of Trustees (the "Board") and the Investment Adviser, the Portfolio Manager will
provide a continuous investment program for the Portfolio and determine the
composition of the assets of the Portfolio. The Portfolio Manager will provide
investment research and analysis, which may include computerized investment
methodology, and will conduct a continuous program of evaluation, investment,
sales, and reinvestment of the Portfolio's 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 Portfolio, when these transactions should be executed, and what portion of
the assets of the Portfolio should be held in
the various securities and other investments in which it may invest, and the
Portfolio Manager is hereby authorized to execute and perform such services on
behalf of the Portfolio. To the extent permitted by the written investment
policies of the Portfolio, the Portfolio Manager shall make decisions for the
Portfolio 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 Portfolio. The Portfolio Manager is authorized to and shall
exercise tender offers, exchange offers and vote or refrain from voting proxies
on behalf of each Portfolio, as the Portfolio Manager determines is in the best
interest of the Portfolio in accordance with the Portfolio Manager's proxy
voting policy. The Portfolio Manager is authorized to open brokerage accounts on
behalf of the Portfolio in accordance with Fund procedures. The Portfolio
Manager is authorized to enter into futures account agreements, ISDA master
agreements and related documents, and to open accounts and take other necessary
or appropriate actions related thereto, in accordance with Fund procedures.
In performing these duties, the Portfolio Manager:
(a) will conform with (1) the 1940 Act and all rules and regulations
thereunder, and releases and interpretations related thereto (including any
no-action letters and exemptive orders which have been granted by the SEC to the
Fund, to the Investment Adviser (as provided to the Portfolio Manager by the
Investment Adviser), or to the Portfolio Manager), (2) applicable rules and
regulations under the Securities Exchange Act of 1934, as amended (the "1934
Act") (3) all other applicable federal and state laws and regulations pertaining
to investment vehicles underlying variable annuity and/or variable life
insurance contracts, (4) any applicable written procedures, policies and
guidelines adopted by the Board and furnished to the Portfolio Manager, (5) the
Fund's objectives, investment policies and investment restrictions as stated in
the Fund's Prospectus and Statement of Additional Information as supplemented or
amended from time to time, as furnished to the Portfolio Manager, (6) the
provisions of the Fund's Registration Statement filed on Form N-1A under the
Securities Act of 1933 (the "1933 Act") and the 1940 Act, as supplemented or
amended from time to time (the "Registration Statement"), (7) Section 851(b)(2)
and (3) of Subchapter M of the Internal Revenue Code of 1986, as amended (the
"Code"), (8) the provisions of Section 817(h) of the Code, applicable to the
Portfolio; and (9) any other applicable laws and regulations, including without
limitation, proxy voting regulations. To the extent that the Portfolio Manager
engages in transactions that require segregation of assets or other
arrangements, including but not limited to, options, futures contracts, short
sales or borrowing transactions, the Portfolio Manager shall segregate assets in
accordance with the 1940 Act, if necessary, based upon trading strategies and
positions the Portfolio Manager employs on behalf of the Portfolio, as well as
to segregate assets, if necessary, in accordance with the 1934 Act and any other
requirements of broker/dealers who may execute transactions for the Portfolio in
connection therewith. Until the Investment Adviser delivers any supplements or
amendments to the Portfolio Manager, the Portfolio Manager shall be fully
protected in relying on the Fund's Registration Statement previously furnished
by the Investment Adviser to the Portfolio Manager. In managing the Portfolio in
accordance with the requirements of this Section 2, the Portfolio Manager shall
be entitled to receive and act upon advice of counsel to the Fund, to the
Investment Adviser or to the Portfolio Manager that is also acceptable to the
Investment Adviser.
(b) will (i) identify each position in the Portfolio that Portfolio
Manager treats as stock in a Passive Foreign Investment Company ("PFIC"), as
that term is defined in Section 1296 of the Code, and (ii) inform the Investment
Adviser at least annually (or more often and by such date(s) as the Investment
Adviser shall reasonably request) of any stock in a PFIC that Portfolio Manager
has identified. Notwithstanding the foregoing, Portfolio Manager
does not undertake to provide any tax advice with respect to the treatment of
securities as a PFIC.
(c) is responsible, in connection with its responsibilities under this
Section 2, for decisions to buy and sell securities and other investments for
the Portfolio, for broker-dealer and futures commission merchant ("FCM")
selection, and for negotiation of commission rates. The Portfolio Manager's
primary consideration in effecting a security or other transaction will be to
obtain the best execution for the Portfolio, taking into account the factors
specified in the Fund's Prospectus and Statement of Additional Information for
the Fund, as they may be amended or supplemented from time to time and furnished
to the Portfolio Manager. The Fund will provide the Portfolio Manager with 60
days advanced written notice of any material change to be made to the Fund's
policies on best execution or to such factors identified in the Fund's
Prospectus and Statement of Additional Information; provided, however, the Fund
shall not be obligated to provide notice in the event the change is due to
relevant changes in applicable federal or state laws, rules, regulations, SEC
staff no-action letters, SEC guidance or interpretations or other
interpretations of applicable regulators. Subject to the policies the Board may
determine and consistent with Section 28(e) of the Securities Exchange Act of
1934, as amended (the "1934 Act"), the Portfolio Manager shall not be deemed to
have acted unlawfully or to have breached any duty created by this Agreement or
otherwise solely by reason of its having caused the Portfolio to pay a broker or
dealer, acting as agent, for effecting a Portfolio transaction at a price in
excess of the amount of commission another broker or dealer would have charged
for effecting that transaction, if the Portfolio Manager determines in good
faith that such amount of commission was reasonable in relation to the value of
the brokerage and research services provided by such broker or dealer, viewed in
terms of either that particular transaction or the Portfolio Manager's (or its
affiliates') overall responsibilities with respect to the Portfolio 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
1934 Act and Rule lla2-2(T) thereunder, and subject to any other applicable laws
and regulations including Section 17(e) of the 1940 Act, the Portfolio Manager
is further authorized to place orders on behalf of the Portfolio through the
Portfolio Manager if the Portfolio Manager is registered as a broker or dealer
with the SEC or as a FCM with the Commodities Futures Trading Commission
("CFTC"), through any of its affiliates that are brokers or dealers or FCMs or
such other entities which provide similar services in foreign countries, or
through such brokers and dealers that also provide research or statistical
research and material, or other services to the Portfolio or the Portfolio
Manager. Such allocation shall be in such amounts and proportions as the
Portfolio Manager shall determine consistent with the above standards, and, upon
request, the Portfolio Manager will report on said allocation to the Investment
Adviser and Board, indicating the brokers, dealers or FCMs to which such
allocations have been made and the basis therefor. The Portfolio Manager shall
not direct brokerage to any broker-dealer in recognition of, or otherwise take
into account in making brokerage allocation decisions, sales of shares of a
Portfolio or of any other investment vehicle by that broker-dealer.
(d) may, on occasions when the purchase or sale of a security is
deemed to be in the best interest of a Portfolio 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 the Registration Statement as
furnished to the Portfolio 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 Portfolio Manager in a manner that is fair and equitable and
consistent with the Portfolio Manager's fiduciary obligations to the Portfolio
and to such other clients. The Fund will provide the Portfolio Manager with 60
days advanced written notice of any material change to be made to such policies
identified in the Fund's Registration Statement; provided, however, the Fund
shall not be obligated to provide notice in the event the change is due to
relevant changes in applicable federal or state laws,
rules, regulations, SEC staff no-action letters, SEC guidance or interpretations
or other interpretations of applicable regulators.
(e) will, in connection with the purchase and sale of securities for
the Portfolio, together with the Investment Adviser, arrange for the
transmission to the custodian and recordkeeping agent for the Fund, on a daily
basis, such confirmation(s), trade tickets, and other documents and information,
including, but not limited to, CUSIP, SEDOL, or other numbers that identify
securities to be purchased or sold on behalf of the Portfolio, as may be
reasonably necessary to enable the custodian and recordkeeping agent to perform
its administrative and recordkeeping responsibilities with respect to the
Portfolio, and with respect to Portfolio securities to be purchased or sold
through the Depository Trust Company, will arrange for the automatic
transmission of the confirmation of such trades to the Fund's custodian and
recordkeeping agent, and, if required, the Investment Adviser. The Portfolio
Manager agrees to comply with such rules, procedures and time frames as the
Fund's custodian may reasonably set or provide with respect to the clearance and
settlement of transactions for a Portfolio, including but not limited to
submission of trade tickets. Any Portfolio assets shall be delivered directly to
the Fund's custodian.
(f) will provide reasonable assistance to the Investment Adviser,
custodian or recordkeeping agent for the Fund in determining or confirming,
consistent with the procedures and policies stated in the Fund's valuation
procedures and/or the Registration Statement, the value of any portfolio
securities or other assets of the Portfolio for which the Investment Adviser,
custodian or recordkeeping agent seeks assistance from the Portfolio Manager or
identifies for review by the Portfolio Manager. Such reasonable assistance shall
include (but is not limited to): (i) designating and providing timely access, on
an as-needed basis and upon the reasonable request of the Investment Adviser or
custodian, to one or more employees of the Portfolio Manager who are
knowledgeable about the security/issuer, its financial condition, trading and/or
other relevant factors for valuation, which employees shall be available for
consultation when the Board's Valuation Committee convenes; (ii) notifying the
Investment Adviser by 4:00 p.m. Pacific time in the event any Portfolio
security's value does not appear to the Portfolio Manager to reflect corporate
actions, news, significant events or such security otherwise requires review to
determine if fair valuation is necessary under the Fund's procedures and the
Portfolio Manager makes any determination or recommendation regarding the fair
value of such Portfolio security; (iii) applying to the Portfolio's assets the
procedures of the Portfolio Manager used for valuing the assets held by other
U.S. domiciled mutual funds under management of the Portfolio Manager and
notifying the Investment Adviser if the application of such procedures would
result in a determination of fair value with respect to any asset held by the
Portfolio where a market quotation is not readily available or is deemed to be
unreliable with respect to such asset; (iv) upon the request of the Investment
Adviser or custodian, assisting in obtaining bids and offers or quotes from
broker/dealers or market-makers with respect to securities held by the
Portfolio; (v) upon the reasonable request of the Investment Adviser, verifying
pricing; (vi) providing recommendations for fair valuations in accordance with
the Fund's valuation procedures, as they may be amended from time to time; and
(vii) maintaining adequate records and written backup information with respect
to the assistance provided pursuant to this section 2(f), and providing such
information to the Investment Adviser or the Fund upon request. Such records
shall be deemed to be Fund records. Notwithstanding sections (ii), (iii) and
(vi) above, certain of the Portfolio Manager's proprietary U.S. domiciled
international mutual funds and other accounts have adopted different policies
and procedures regarding fair valuation and purchase from third party vendors
certain factor pricing for their holdings and adjust the funds and accounts
based on this information, such factor pricing information will not be provided
to the Investment Adviser.
(g) will maintain and preserve such records related to each
Portfolio's transactions as required under the 1940 Act and the Advisers Act.
The Portfolio Manager will
make available to the Fund and the Investment Adviser promptly upon request, any
of the Portfolio's investment records and ledgers maintained by the Portfolio
Manager (which shall not include the records and ledgers maintained by the
custodian and recordkeeping agent for the Fund), as are necessary to assist the
Fund and the Investment Adviser in complying 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 the Fund are being conducted in a manner consistent
with applicable laws and regulations.
(h) will regularly report to the Board on the investment program for
the Portfolio and the issuers and securities represented in the Portfolio, and
will furnish the Board, with respect to the Portfolio, such periodic and special
reports as the Board and the Investment Adviser may reasonably request,
including, but not limited to, reports concerning transactions and performance
of each Portfolio, a quarterly compliance checklist, reports regarding
compliance with the Fund's procedures pursuant to Rules 17e-l, 17a-7, 10f-3 and
12d3-1 under the 1940 Act, 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, IOs/POs, confirmation of the liquidity of all other securities in the
Funds, and compliance with the Portfolio Manager's Code of Ethics, and such
other reports or certifications that the Investment Adviser may reasonably
request from time to time.
(i) will adopt a written Code of Ethics complying with the
requirements of Rule 17j-l under the 1940 Act and Rule 204A-l under the Advisers
Act and will provide the Investment Adviser and the Fund with a copy of the Code
of Ethics, together with evidence of its adoption. Within 30 days of the end of
each calendar quarter during which this Agreement remains in effect, the chief
compliance officer and/or president and/or managing director (as the Investment
Adviser determines appropriate) of the Portfolio Manager shall certify to the
Investment Adviser that the Portfolio Manager has complied with the requirements
of Rule 17j-l during the previous calendar quarter and that there have been no
violations of the Code of Ethics or, if a violation has occurred, that
appropriate action has been taken in response to such violation. Upon written
request of the Investment Adviser or the Fund, the Portfolio Manager shall
permit representatives of the Investment Adviser and the Trust to examine the
reports or summaries of the reports required to be made under the Code of Ethics
and other records evidencing enforcement of the Code of Ethics.
(j) will provide to the Investment Adviser a copy of the Portfolio
Manager's Form ADV, and any supplements or amendments thereto, as filed with the
SEC, on an annual basis (or more frequently if requested by the Investment
Adviser or the Board) including any portion which contains disclosure of legal
or regulatory actions. The Portfolio Manager represents and warrants that it is
a duly registered investment adviser under the Advisers Act and will notify the
Investment Adviser immediately if any action is brought by any regulatory body
which would affect that registration. The Portfolio Manager will provide a list
of persons whom the Portfolio Manager wishes to have authorized to give written
and/or oral instructions to Custodians of assets for the Portfolio.
(k) will be responsible for meeting the Portfolio Manager's regulatory
obligations, including the preparation and filing of such reports with respect
to the assets of the Portfolio reflecting holdings over which the Portfolio
Manager or its affiliates have investment discretion as may be required from
time to time, including but not limited to Schedule 13G, Form 13F and Form SH.
(l) will not permit any employee of the Portfolio Manager to have any
material involvement with the management of the Portfolio 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
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 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.
(m) 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 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. The Fund and the Investment Adviser will not disclose or
use any records or information with respect to the Portfolio Manager obtained
pursuant to this Agreement, in any manner whatsoever except as expressly
authorized in this Agreement, and will keep confidential any information
obtained pursuant to this Agreement, and disclose such information only as
expressly authorized in this Agreement, if the Board 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.
(n) will assist the Investment Adviser, the Fund, and any of its or
their trustees, directors, officers, and/or employees in complying with the
provisions of the Xxxxxxxx-Xxxxx Act of 2002 ("SOX") to the extent such
provisions relate to the services to be provided by, and the obligations of, the
Portfolio Manager hereunder. Specifically, and without limitation to the
foregoing, the Portfolio Manager agrees to provide certifications to the
principal executive and financial officers of the Fund (the "certifying
officers") that correspond to and/or support the certifications required to be
made by the certifying officers for compliance with SOX in connection with the
preparation and/or filing of the Fund's annual and semi-annual shareholder
reports and financial statements included in Form N-CSR, N-Qs or other
disclosure documents or regulatory filings requiring SOX certifications, which
are attributable to the Portfolio(s) managed by the Portfolio Manager in such
form and content as the Fund shall reasonably request or in accordance with
procedures adopted by the Fund. Portfolio Manager acknowledges that, as of the
effective date of this Agreement, it has received the form and content of such
certifications required. Investment Adviser shall provide 60 days advanced
written notice of any material changes to the form and content of such
certifications; provided,
however, notice shall not be provided in the event the change is in response to
relevant changes of applicable federal or state laws, rules, regulations, SEC
staff no-action letters, SEC guidance or interpretations or other
interpretations of applicable regulators.
(o) is, along with its affiliated persons, permitted to enter into
transactions with the other portfolios of the Fund and affiliated persons of
those other portfolios of the Fund (collectively, the "Other Portfolios"). In
doing so, the Portfolio Manager is prohibited from consulting with the
Investment Adviser or the portfolio managers of these Other Portfolios
concerning securities transactions of the Portfolio except for the purpose of
complying with the conditions of Rule 12d3-1(a) and (b) under the 1940 Act.
(p) will exercise voting rights with respect to portfolio securities
held by a Portfolio in accordance with written policies and procedures adopted
by the Portfolio Manager, which may be amended from time to time, and which at
all times shall comply with the requirements of applicable federal statutes and
regulations and any related SEC guidance relating to such statutes and
regulations (collectively, "Proxy Voting Policies and Procedures"). The
Portfolio Manager shall vote proxies on behalf of each Portfolio in a manner
deemed by the Portfolio Manager to be in the best interests of each Portfolio
pursuant to the Portfolio Manager's written Proxy Voting Policies and
Procedures. The Portfolio Manager shall provide disclosure regarding the Proxy
Voting Policies and Procedures in accordance with the requirements of Form N-1A
for inclusion in the Registration Statement. The Portfolio Manager shall report
to the Investment Adviser in a timely manner a record of all proxies voted, in
such form and format that complies with acceptable federal statutes and
regulations (e.g., requirements of Form N-PX). The Portfolio Manager shall
certify at least annually or more often as may reasonably be requested by the
Investment Adviser, as to its compliance with its own Proxy Voting Policies and
Procedures and applicable federal statues and regulations.
(q) will provide reasonable assistance to the Fund and the Fund's
Chief Compliance Officer ("CCO") in complying with Rule 38a-l under the 1940
Act. Specifically, the Portfolio Manager represents and warrants that it shall
maintain a compliance program in accordance with the requirements of Rule
206(4)-7 under the Advisers Act, and shall provide the CCO with reasonable
access to information regarding the Portfolio Manager's compliance program,
which access shall include on-site visits with the Portfolio Manager as may be
reasonably requested from time to time. In connection with the periodic review
and annual report required to be prepared by the CCO pursuant to Rule 38a-l, the
Portfolio Manager agrees to provide certifications as may be reasonably
requested by the CCO related to the design and implementation of the Portfolio
Manager's compliance program.
(r) will comply with the Fund's policy on selective disclosure of
portfolio holdings of the Fund (the "Selective Disclosure Policy"), as provided
in writing to the Portfolio Manager and as may be amended from time to time. The
Portfolio Manager agrees to provide a certification with respect to compliance
with the Fund's Selective Disclosure Policy as may be reasonably requested by
the Fund from time to time. It is further agreed that any portfolio holdings
information regarding Portfolios managed by the Portfolio Manager will be
publicly disclosed only after a two (2) month delay and that such delay in the
availability of such portfolio holdings information will be disclosed on the
Investment Adviser's website.
(s) will use its best efforts to notify the Investment Adviser
promptly in the event that, in the judgment of the Portfolio Manager, Portfolio
share transaction activity becomes disruptive to the ability of the Portfolio
Manager to effectively manage the assets of a Portfolio consistent with the
Portfolio's investment objectives and policies.
(t) will provide assistance as may be reasonably requested by the
Investment Adviser in connection with compliance by the Portfolio with any
current or future legal and regulatory requirements related to the services
provided by the Portfolio Manager hereunder.
(u) will, upon the reasonable request of the Fund or the Investment
Adviser, provide to the Fund certifications related to the services provided by
the Portfolio Manager hereunder, including (but not limited to) certifications
of compliance with Trust procedures, the Registration Statement, and applicable
securities regulations. Portfolio Manager acknowledges that, as of the effective
date of this Agreement, it has received the form and content of such
certifications required. Investment Adviser shall provide 60 days written notice
of any material changes to the form and content of such certifications;
provided, however, notice shall not be provided in the event the change is in
response to relevant changes of applicable federal or state laws, rules,
regulations, SEC staff no-action letters, SEC guidance or interpretations or
other interpretations of applicable regulators.
(v) will, upon request by the Investment Adviser, research and confirm
to the Investment Adviser whether the Portfolio held or traded in a particular
security, on any particular day or during any particular timeframe within the
term of this Agreement, as the Investment Adviser may specify, and provide
relevant trade information (for example, a schedule of purchases and sales
and/or holdings) for such security, to provide assistance to Investment Adviser
relating to class action litigations involving a security held by the
Portfolio(s).
(w) will provide reasonable assistance to the Investment Adviser with
respect to the annual audit of the Fund's financial statements, including, but
not limited to: (i) providing broker contacts as needed for obtaining trade
confirmations (in particular with respect to investments in loans (including
participations and assignments) and all derivatives, including swaps); (ii)
providing copies of all documentation relating to investments in loans
(including participations and assignments) and derivative contracts, within a
reasonable time after the execution of such documentation; (iii) providing
assistance in obtaining trade confirmations in the event the Fund or the Fund's
independent registered public accounting firm is unable to obtain such
confirmations directly from the brokers; and (iv) obtaining market quotations
for investments (including investments in loans (including participations and
assignments) and derivatives) that are not readily ascertainable in the event
the Fund or the Fund's independent registered public accounting firm is unable
to obtain such market quotations through independent means.
(x) will, on an annual basis, advise the Investment Adviser (i) if the
Portfolio Manager acts as sub-adviser to another U.S. registered mutual fund
with substantially similar structure and with shares registered under the
Securities Act of 1933 that follows the same investment strategy as the
Portfolio and (ii) if so, whether the Portfolio Manager's fee rate for any such
U.S. registered mutual fund described in (i) above is less than the rate charged
the Investment Adviser for management of the Portfolio.
(y) will, for the duration of this Agreement, not directly or
indirectly solicit or induce any personnel of Investment Adviser or its
affiliated companies to leave the employ of Investment Adviser or affiliated
company. After personnel of Investment Adviser or an affiliate cease to be in
the employ of Investment Adviser or affiliate, Portfolio Manager shall be free
to directly or indirectly employ or retain such personnel in any capacity, so
long as Portfolio Manager did not solicit or induce such personnel to leave the
employ of Investment Adviser or its affiliate.
(z) will, for the duration of this Agreement, have the authority to
complete Qualified Institutional Buyer, Accredited Investor and other similar
representation letters on
behalf of the Fund and Portfolio(s) as may be necessary in order for the Fund or
Portfolio(s) to participate in corporate actions that involve a security the
Portfolio(s) holds.
3. DISCLOSURE ABOUT PORTFOLIO MANAGER AND PORTFOLIO. The Portfolio Manager
has reviewed the current Registration Statement and agrees to promptly review
future amendments to the Registration Statement, including any supplements
thereto, which relate to the Portfolio Manager or the Portfolio, filed with the
SEC (or which will be filed with the SEC in the future) and represents and
warrants that, solely with respect to the disclosure respecting or relating to
the Portfolio Manager, including any performance information the Portfolio
Manager provides that is included in or serves as the basis for information
included in the Registration Statement, such Registration Statement contains as
of the date hereof, and will contain as of the date of any 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 Portfolio Manager further agrees to notify the Investment Adviser and the
Fund promptly of any material fact about the Portfolio Manager, known to the
Portfolio Manager respecting or relating to the Portfolio Manager, that is not
contained in the Registration Statement or prospectus for the Fund, or any
amendment or supplement thereto, or of any statement respecting or relating to
the Portfolio Manager contained therein that becomes untrue in any material
respect. With respect to the disclosure respecting each Portfolio, the Portfolio
Manager represents and agrees that the descriptions in the Fund's Prospecctus,
as of the date of this Agreement and as of the date of any Registration
Statement or supplement thereto, as furnished to the Portfolio Manager, (a)
about the Portfolio's investment goal and main investments ("Portfolio
Description") is consistent with the manner in which the Portfolio Manager
intends to manage each Portfolio, and (b) about the Portfolio's risks ("Risk
Description") is consistent with risks known to the Portfolio Manager that arise
in connection with the manner in which the Portfolio Manager intends to manage
the Portfolio. The Portfolio Manager further agrees to notify the Investment
Adviser and the Fund promptly in the event that the Portfolio Manager becomes
aware that the Portfolio Description for a Portfolio is inconsistent in any
material respect with the manner in which the Portfolio Manager is managing the
Portfolio, and in the event that the Risk Description is inconsistent in any
material respect with the risks known to the Portfolio Manager that arise in
connection with the manner in which the Portfolio Manager is managing the
Portfolio. In addition, the Portfolio Manager agrees to comply with the
Investment Adviser's reasonable request for information regarding the personnel
of the Portfolio Manager who are responsible for the day-to-day management of a
Portfolio's assets.
4. EXPENSES. The Portfolio Manager shall bear all expenses incurred by it
and its staff with respect to all activities in connection with the performance
of the Portfolio Manager's services under this Agreement, including but not
limited to salaries, overhead, travel, preparation of Board materials, review of
marketing materials relating to Portfolio Manager or other information provided
by Portfolio Manager to the Investment Adviser and/or the Funds Distributor.
Portfolio Manager agrees to pay to the Investment Adviser the cost of generating
a prospectus supplement, which includes preparation, filing, printing, and
distribution (including mailing) of the supplement, if such supplement is
required because the Portfolio Manager makes any material changes that require
immediate disclosure in the prospectus or any required regulatory documents by
supplement, including, but not limited to, a change in control, changes to the
investment personnel listed in the Fund's registration statement, a change to a
principal investment strategy, or other material changes ("Changes"), and at the
time of notification to the Fund by the Portfolio Manager of such Changes, the
Fund is not generating a supplement for other purposes or otherwise in the
process of updating its registration statement. In the event two or more
portfolio managers each require a supplement simultaneously, the expense of each
supplement will be shared pro rata with such other portfolio manager(s) based
upon the number of pages required by each such portfolio manager. All other
expenses not specifically assumed by the Portfolio Manager hereunder or by the
Investment Adviser under the Advisory
Agreement are borne by the applicable Portfolio of the Fund. The Fund, the
Portfolio Manager and the Investment Adviser shall not be considered as partners
or participants in a joint venture.
5. COMPENSATION. For the services provided and the expenses borne by the
Portfolio Manager pursuant to this Agreement, the Investment Adviser will pay to
the Portfolio Manager a fee in accordance with Exhibit A attached to this
Agreement. This fee will be computed and accrued daily and payable monthly. The
fees for any month during which this Agreement is in effect for less than the
entire month shall be pro-rated based on the number of days during such month
that the Agreement was in effect.
6. SEED MONEY. The Investment Adviser agrees that the Portfolio Manager
shall not be responsible for providing money for the initial capitalization of
any Portfolio.
7. COMPLIANCE.
(a) The Portfolio Manager agrees that it shall promptly notify the
Investment Adviser and the Fund (i) in the event that the SEC, CFTC, or any
banking or other regulatory body has censured the Portfolio 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; (ii) upon having a reasonable basis for
believing that a Portfolio has ceased to qualify or might not qualify as a
regulated investment company under Subchapter M of the Code; and (iii) upon
having a reasonable basis for believing that the Portfolio has ceased to comply
with the diversification provisions of Section 817(h) of the Code or the
Regulations thereunder. The Portfolio Manager further agrees to notify the
Investment Adviser and Fund immediately of any material fact known to the
Portfolio Manager respecting or relating to the Portfolio Manager that is not
contained in the Registration Statement, or any amendment or supplement thereto,
or of any statement contained therein that becomes untrue in any material
respect.
(b) The Investment Adviser agrees that it shall promptly notify the
Portfolio Manager (i) in the event that the SEC has censured the Investment
Adviser or the Fund; placed limitations upon either of their activities,
functions, or operations; suspended or revoked the Investment Adviser's
registration as an investment adviser; or has commenced proceedings or an
investigation that may result in any of these actions; (ii) upon having a
reasonable basis for believing that a Portfolio has ceased to qualify or might
not qualify as a regulated investment company under Subchapter M of the Code; or
(iii) upon having a reasonable basis for believing that the Portfolio has ceased
to comply with the diversification provisions of Section 817(h) of the Code or
the Regulations thereunder.
8. INDEPENDENT CONTRACTOR. The Portfolio Manager shall for all purposes
herein be deemed to be an independent contractor and shall, unless otherwise
expressly provided herein or authorized by the Investment Adviser from time to
time, have no authority to act for or represent the Investment Adviser in any
way or otherwise be deemed its agent. The Portfolio Manager understands that
unless provided herein or authorized from time to time by the Fund, the
Portfolio Manager shall have no authority to act for or represent the Fund in
any way or otherwise be deemed the Fund's agent.
9. BOOKS AND RECORDS. In compliance with the requirements of and to the
extent required by Section 31(a) of the 1940 Act and the rules thereunder, the
Portfolio Manager hereby agrees that all records which it maintains for the
Portfolio are the property of the Fund and further agrees to surrender promptly
to the Fund any of such records upon the Fund's or the Investment Adviser's
request, although the Portfolio 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 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 this
Agreement, it is understood and agreed that the Fund reserves the right to
direct, approve or disapprove any action hereunder taken on its behalf by the
Portfolio Manager, provided, however, that the Portfolio Manager shall not be
liable for any losses to the Fund resulting from the Fund's direction, or from
the Fund's disapproval of any action proposed to be taken by the Portfolio
Manager.
12. SERVICES NOT EXCLUSIVE. It is understood that the services of the
Portfolio Manager and its employees are not exclusive, and nothing in this
Agreement shall prevent the Portfolio 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 Portfolio) or from engaging in other activities.
13. LIABILITY. Except as may otherwise be required by the 1940 Act or the
rules thereunder or other applicable law, the Fund and the Investment Adviser
agree that the Portfolio Manager, any affiliated person of the Portfolio
Manager, and each person, if any, who, within the meaning of Section 15 of the
1933 Act, controls the Portfolio Manager, shall not be liable for, or subject to
any damages, expenses, or losses in connection with, any act or omission
connected with or arising out of any services rendered under this Agreement,
except by reason of willful misfeasance, bad faith, or gross negligence in the
performance of the Portfolio Manager's duties, or by reason of reckless
disregard of the Portfolio Manager's obligations and duties under this
Agreement. Notwithstanding the foregoing, nothing contained in this Agreement
shall constitute a waiver or limitation of rights that the Fund may have under
federal or state securities laws.
14. INDEMNIFICATION.
(a) The Portfolio Manager agrees to indemnify and hold harmless, the
Investment Adviser, any affiliated person within the meaning of Section 2(a)(3)
of the 1940 Act ("affiliated person") of the Investment Adviser, and each
person, if any, who, within the meaning of Section 15 of the 1933 Act, controls
("controlling person") the Investment Adviser (collectively, "PL Indemnified
Persons") against any and all losses, claims, damages, liabilities or litigation
(including reasonable legal and other expenses), to which the Investment Adviser
or such affiliated person or controlling 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 Portfolio Manager's responsibilities to the
Fund which (i) are based upon any willful misfeasance, bad faith, gross
negligence, or reckless disregard of, the Portfolio Manager's obligations and/or
duties under this Agreement by the Portfolio Manager or by any of its directors,
officers or employees, or any affiliate acting on behalf of the Portfolio
Manager (other than a PL Indemnified Person), or (ii) are based upon any untrue
statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus covering the Shares of the Fund or any
Portfolio, 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 Investment Adviser, the Fund, or any affiliated person of the Fund by the
Portfolio Manager or any affiliated person of the Portfolio Manager (other than
a PL Indemnified Person) provided, however, that in no case is the Portfolio
Manager's indemnity 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 obligations and duties under this
Agreement.
(b) The Investment Adviser agrees to indemnify and hold harmless the
Portfolio Manager, any affiliated person within the meaning of Section 2(a)(3)
of the 1940 Act of the Portfolio Manager and each person, if any, who, within
the meaning of Section 15 of the 1933 Act controls ("controlling person") the
Portfolio Manager (collectively, "Portfolio Manager Indemnified Persons")
against any and all losses, claims, damages, liabilities or litigation
(including reasonable legal and other expenses) to which a Portfolio 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 Investment Adviser's responsibilities as Investment Adviser of the Fund
which (i) are based upon any willful misfeasance, bad faith or negligence by the
Investment Adviser, any of its directors, officers, or employees or any
affiliate acting on behalf of the Investment Adviser (other than a Portfolio
Manager Indemnified Person), or (ii) are based upon any untrue statement or
alleged untrue statement of a material fact contained in a Registration
Statement or prospectus covering the Shares of the Fund or any Portfolio, 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, unless such a statement or omission
was made in reliance upon information furnished in writing to the Investment
Adviser, the Fund, or any affiliated person of the Fund by the Portfolio Manager
or any affiliated person of the Portfolio Manager (other than a PL Indemnified
Person) provided however, that in no case is the Investment Adviser's indemnity
in favor of the Portfolio Manager Indemnified Persons deemed to protect such
person against any liability to which any such person would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance of his duties, or by reason of his reckless disregard of obligations
and duties under this Agreement.
15. DURATION AND TERMINATION. This Agreement shall become effective as of
the date of execution first written above, and shall continue in effect for two
years and continue thereafter on an annual basis with respect to each Portfolio;
provided that such annual continuance is specifically approved at least annually
(a) by the vote of a majority of the Board, or (b) by the vote of a majority of
the outstanding voting shares of each Portfolio, and provided that continuance
is also approved by the vote of a majority of the Board who are not parties to
this Agreement or "interested persons" (as such term is defined in the 1940 Act)
of the Fund, the Investment Adviser, or the Portfolio Manager, cast in person at
a meeting called for the purpose of voting on such approval.
This Agreement may be terminated with respect to any Portfolio:
(a) by the Fund at any time with respect to the services provided by
the Portfolio Manager, without the payment of any penalty, by vote of a majority
of the Board or by a vote of a majority of the outstanding voting shares of the
Fund or, with respect to a particular Portfolio, by vote of a majority of the
outstanding voting shares of such Portfolio, upon sixty (60) days' prior written
notice to the Portfolio Manager and the Investment Adviser;
(b) by the Portfolio Manager at any time, without the payment of any
penalty, upon sixty (60) days' prior written notice to the Investment Adviser
and the Fund.
(c) by the Investment Adviser at any time, without the payment of any
penalty, upon sixty (60) days' prior written notice to the Portfolio Manager and
the Fund.
This Agreement will terminate automatically in event of its assignment
under the 1940 Act and any rules adopted by the SEC thereunder, but shall not
terminate in connection with any
transaction not deemed an assignment. In the event this Agreement is terminated
or is not approved in the manner described above (i) Portfolio Manager agrees to
provide all reports, certification and assistance called for pursuant to
paragraphs 2(b), 2(h), 2(i), 2(k), 2(n), 2(p), and 2(q) within 30 business days
of termination; and (ii) the Sections or Paragraphs numbered 2(g) for a period
of six years, and 2(m), 2(t), 2(v), 9, 10, 13, 14, 17, 18, 19 and 20 of this
Agreement as well as any applicable provision of this Paragraph numbered 15
shall remain in effect.
16. SUPPLEMENTAL ARRANGEMENTS. The Portfolio Manager may enter into
arrangements with other persons affiliated with the Portfolio Manager or with
unaffiliated third parties to provide administrative, proxy voting or consulting
services related to this Agreement, provided that any such arrangements are
entered into in accordance with all applicable requirements of the 1940 Act and
any other applicable law. Portfolio Manager acknowledges and agrees that any
delegation by Portfolio manager to one or more persons for administrative, proxy
voting or consulting services shall in no way relieve Portfolio Manager of its
duties and obligations pursuant to this Agreement, all such duties and
obligations shall remain the sole responsibility of Portfolio Manager as if no
such delegation had occurred, Portfolio Manager shall at all times provide
appropriate supervision and oversight of any such persons, and Portfolio Manager
shall be fully responsible and liable for all actions or omissions to act by
such persons. Portfolio Manager acknowledges and agrees that any such person to
which Portfolio Manager delegates administrative, proxy votingor consulting
services is not a party to this Agreement and is not an intended beneficiary of
this Agreement.
17. USE OF NAME.
(a) It is understood that the name "Pacific Life Insurance Company",
"Pacific Life Fund Advisors LLC", "Pacific Asset Management", and "Pacific
Select Fund" and any abbreviated forms and any derivatives thereof and any logos
associated with those names (including, without limitation, the whale logo) are
the valuable property of the Investment Adviser and its affiliates, and that the
Portfolio Manager shall not use such names (or abbreviations, derivatives or
logos) without the prior written approval of the Investment Adviser and only so
long as the Investment Adviser is an investment adviser to the Fund and/or the
Portfolio. Upon termination of this Agreement, the Portfolio Manager shall
forthwith cease to use such names (or abbreviations, derivatives or logos).
(b) It is understood that the name "DIMENSIONAL FUND ADVISORS" and any
abbreviated forms and any derivative thereof or any logo associated with that
name is the valuable property of the Portfolio Manager and that the Fund and the
Investment Adviser have the right to use such name (or derivative or logo), in
the Fund's prospectus, SAI and Registration Statement or other filings, forms or
reports required under applicable state or federal securities, insurance, or
other law, for so long as the Portfolio Manager is a Portfolio Manager to the
Fund and/or one of the Portfolio, provided, however, that the Fund may continue
to use the name of the Portfolio Manager in its Registrations Statement and
other documents to the extent deemed necessary by the Fund to comply with
disclosure obligations under applicable law and regulation. Neither the Fund nor
the Investment Adviser shall use the Portfolio Manager's name or logo in
promotional or sales related materials prepared by or on behalf of the
Investment Adviser or the Fund, without prior review and approval by the
Portfolio Manager, which may not be unreasonably withheld. Portfolio Manager
must provide written notice of any reasonable objection within three business
days (or such other time as may be mutually agreed upon) after receipt of such
promotional or sales related materials. Investment Adviser or the Fund are not
required to obtain approval from Portfolio Manager for substantially similar
language previously approved by Portfolio Manager used in other promotional or
sales related materials. Upon termination of this Agreement, the Fund and the
Investment Adviser shall forthwith cease to use such names (and logo), except as
provided for herein.
(c) It is further understood that the Investment Adviser or Fund must
provide Portfolio Manager with a reasonable opportunity to review all
registration statements, proxy statements and reports to shareholders, and any
other materials that include information regarding the Portfolio Manager for
which the Investment Adviser or Fund may seek related certifications, as
specified under Sections 2(n) and 2(u) under this Agreement or otherwise.
Investment Adviser will use its best efforts, to the extent possible and
practicable, given the timing of the registration statement filing schedules, to
provide the Portfolio Manager with at least three business days to review the
final registration statement as it relates to the Portfolio Manager before
Portfolio Manager is required to issue its certification with respect thereto.
18. LIMITATION OF LIABILITY. A copy of the Declaration of Trust for the
Fund is on file with the Secretary of the State of Massachusetts. The
Declaration of Trust has been executed on behalf of the Fund by a Trustee of the
Fund in his capacity as Trustee of the Fund and not individually. The
obligations of this Agreement with respect to each Portfolio shall be binding
upon the assets and property of each such Portfolio individually, and not
jointly, and shall not be binding upon any Trustee, officer, employee, agent or
shareholder, whether past, present, or future, of the Fund individually, or upon
the Fund generally or upon any other portfolio of the Fund.
19. NOTICES. All notices and other communications hereunder shall be in
writing sent by facsimile first, if practicable, but shall only be deemed given
if delivered in person or by messenger, cable, certified mail with return
receipt, or by a reputable overnight delivery service which provides evidence of
receipt to the parties at the following addresses (or at such other address or
number for a party as shall be specified by like notice):
A. if to the Portfolio Manager, to:
Dimensional Fund Advisors LP
0000 Xxx Xxxx Xx., Xxxxxxxx Xxx
Xxxxxx, XX 00000
Facsimile transmission number: (000) 000-0000
Attention: General Counsel
B. if to the Investment Adviser, to:
Pacific Life Fund Advisors LLC
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Facsimile transmission number: (000) 000-0000
Attention: Xxxxx X. Xxxxx
C. if to the Fund, to:
Pacific Select Fund
c/o Pacific Life Insurance Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Facsimile transmission number: (000) 000-0000
Attention: Xxxxx X. Xxxxx
20. MISCELLANEOUS.
(a) This Agreement shall be governed by the laws of California,
without regard to the conflict of law principles thereof, provided that nothing
herein shall be construed in a manner inconsistent with the 1940 Act, the
Advisers Act, 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.
(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 and
under the 1940 Act, this Agreement may only be modified or 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 FUND ADVISORS, LLC
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------- ----------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
Title: President and Chief Title: Vice President & Secretary
Executive Officer
DIMENSIONAL FUND ADVISORS LP
BY: DIMENSIONAL HOLDINGS INC., ITS GENERAL PARTNER
By: /s/ Xxxxxxxxx X. Xxxxxx By:
------------------------------- ----------------------------------
Name: Xxxxxxxxx X. Xxxxxx Name:
Title: Vice President & Title:
Secretary
PACIFIC SELECT FUND
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------- ----------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
Title: Chairman and Chief Title: Secretary
Executive Officer
EXHIBIT A
PACIFIC SELECT FUND
FEE SCHEDULE
EFFECTIVE: MAY 1, 2009
PORTFOLIO: PD INTERNATIONAL LARGE-CAP PORTFOLIO
The Investment Adviser will pay to the Portfolio Manager a monthly fee for
its services for the above noted Portfolio based on:
(a) The annual percentage of the average daily net assets of the PD
INTERNATIONAL LARGE-CAP PORTFOLIO according to the following schedule:
RATE% BREAK POINT (ASSETs)
----- --------------------
0.15% First $100 million
0.10% Excess over $100 million
Fees for services shall be prorated for any portion of a year in which the
Agreement is not effective.
PACIFIC SELECT FUND
FEE SCHEDULE
(CONTINUED)
EFFECTIVE: MAY 1, 2009
PORTFOLIO: PD EMERGING MARKETS PORTFOLIO
The Investment Adviser will pay to the Portfolio Manager a monthly fee for
its services for the above noted Portfolio based on:
(a) The annual percentage of the average daily net assets of the PD
EMERGING MARKETS PORTFOLIO according to the following schedule:
RATE% BREAK POINT (ASSETs)
----- --------------------
0.50% First $50 million
0.25% Excess over $50 million.
Fees for services shall be prorated for any portion of a year in which the
Agreement is not effective.
PORTFOLIO MANAGEMENT AGREEMENT
AGREEMENT made effective the 1st day of May, 2009 among PACIFIC LIFE FUND
ADVISORS LLC, a Delaware Limited Liability Company ("Investment Adviser"), and
UBS Global Asset Management (Americas) Inc. a Delaware Corporation ("Portfolio
Manager"), and PACIFIC SELECT FUND, a Massachusetts Business Trust (the "Fund").
WHEREAS, the Fund is registered with the Securities and Exchange Commission
("SEC") as an open-end, management investment company under the Investment
Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Investment Adviser is registered as an investment adviser
under the Investment Advisers Act of 1940, as amended ("Advisers Act");
WHEREAS, the Portfolio Manager is registered with the SEC as an investment
adviser under the Advisers Act;
WHEREAS, the Fund has retained the Investment Adviser to render investment
advisory services to the various portfolios of the Fund pursuant to an Advisory
Agreement, as amended, and such Agreement authorizes the Investment Adviser to
engage a portfolio manager to discharge the Investment Adviser's
responsibilities with respect to the investment management of such portfolios, a
copy of which has been provided to the Portfolio Manager and is incorporated
herein by reference;
WHEREAS, the Fund and the Investment Adviser desire to retain the Portfolio
Manager to furnish investment advisory services to one or more portfolios of the
Fund, and the Portfolio Manager is willing to furnish such services to such
portfolios and the Investment Adviser in the manner and on the terms hereinafter
set forth; and
NOW THEREFORE, in consideration of the promises and mutual covenants herein
contained, it is agreed among the Fund, the Investment Adviser, and the
Portfolio Manager as follows:
1. APPOINTMENT. The Fund and the Investment Adviser hereby appoint the
Portfolio Manager to provide investment advisory services to the portfolios of
the Fund listed on Exhibit A attached hereto (each, a "Portfolio") for the
periods and on the terms set forth in this Agreement. The Portfolio Manager
accepts such appointment and agrees to furnish the services herein set forth for
the compensation herein provided.
In the event the Investment Adviser wishes to retain the Portfolio Manager
to render investment advisory services to one or more portfolios of the Fund
other than the Portfolio, the Investment Adviser shall notify the Portfolio
Manager in writing and shall revise Exhibit A to reflect such additional
portfolio(s). If the Portfolio Manager is willing to render such services, it
shall notify the Fund and the Investment Adviser in writing, whereupon such
portfolio shall become a Portfolio hereunder, and be subject to this Agreement.
2. PORTFOLIO MANAGER DUTIES. Subject to the supervision of the Fund's Board
of Trustees (the "Board") and the Investment Adviser, the Portfolio Manager will
provide a continuous investment program for the Portfolio and determine the
composition of the assets of the Portfolio. The Portfolio Manager will provide
investment research and analysis, which may include computerized investment
methodology, and will conduct a continuous program of evaluation, investment,
sales, and reinvestment of the Portfolio's 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 Portfolio, when these
transactions should be executed, and what portion of the assets of the Portfolio
should be held in the various securities and other investments in which it may
invest, and the Portfolio Manager is hereby authorized to execute and perform
such services on behalf of the Portfolio. To the extent permitted by the written
investment policies of the Portfolio, the Portfolio Manager shall make decisions
for the Portfolio 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 Portfolio. The Portfolio Manager is authorized to and shall
exercise tender offers, exchange offers and vote proxies on behalf of each
Portfolio, each as the Portfolio Manager determines is in the best interest of
the Portfolio. The Portfolio Manager is authorized to open brokerage accounts on
behalf of the Portfolio in accordance with Fund procedures. The Portfolio
Manager is authorized to enter into futures account agreements, ISDA master
agreements and related documents, and to open accounts and take other necessary
or appropriate actions related thereto, in accordance with Fund procedures.
In performing these duties, the Portfolio Manager:
(a) will conform with (1) the 1940 Act and all rules and regulations
thereunder, and releases and interpretations related thereto (including any
no-action letters and exemptive orders which have been granted by the SEC to the
Fund, to the Investment Adviser (as provided to the Portfolio Manager by the
Investment Adviser), or to the Portfolio Manager), (2) applicable rules and
regulations under the Securities Exchange Act of 1934, as amended (the "1934
Act") (3) all other applicable federal and state laws and regulations pertaining
to investment vehicles underlying variable annuity and/or variable life
insurance contracts, (4) any applicable written procedures, policies and
guidelines adopted by the Board and furnished to the Portfolio Manager, (5) the
Fund's objectives, investment policies and investment restrictions as stated in
the Fund's Prospectus and Statement of Additional Information as supplemented or
amended from time to time, as furnished to the Portfolio Manager, (6) the
provisions of the Fund's Registration Statement filed on Form N-1A under the
Securities Act of 1933 (the "1933 Act") and the 1940 Act, as supplemented or
amended from time to time (the "Registration Statement"), (7) Section 851(b)(2)
and (3) of Subchapter M of the Internal Revenue Code of 1986, as amended (the
"Code"), (8) the provisions of Section 817(h) of the Code, applicable to the
Portfolio; and (9) any other applicable laws and regulations, including without
limitation, proxy voting regulations. To the extent that the Portfolio Manager
engages in transactions that require segregation of assets or other
arrangements, including but not limited to, options, futures contracts, short
sales or borrowing transactions, the Portfolio Manager shall segregate assets in
accordance with the 1940 Act, if necessary, based upon trading strategies and
positions the Portfolio Manager employs on behalf of the Portfolio, as well as
to segregate assets, if necessary, in accordance with the 1934 Act and any other
requirements of broker/dealers who may execute transactions for the Portfolio in
connection therewith. Until the Investment Adviser delivers any supplements or
amendments to the Portfolio Manager, the Portfolio Manager shall be fully
protected in relying on the Fund's Registration Statement previously furnished
by the Investment Adviser to the Portfolio Manager. In managing the Portfolio in
accordance with the requirements of this Section 2, the Portfolio Manager shall
be entitled to receive and act upon advice of counsel to the Fund, to the
Investment Adviser or to the Portfolio Manager that is also acceptable to the
Investment Adviser.
(b) will (i) identify each position in the Portfolio that Portfolio
Manager treats as stock in a Passive Foreign Investment Company ("PFIC"), as
that term is defined in Section 1296 of the Code, and (ii) inform the Investment
Adviser at least annually (or more often and by such date(s) as the Investment
Adviser shall reasonably request) of any stock in a PFIC.
2
(c) is responsible, in connection with its responsibilities under this
Section 2, for decisions to buy and sell securities and other investments for
the Portfolio, for broker-dealer and futures commission merchant ("FCM")
selection, and for negotiation of commission rates. The Portfolio Manager's
primary consideration in effecting a security or other transaction will be to
seek to obtain the best execution for the Portfolio, taking into account the
factors specified in the Prospectus and Statement of Additional Information for
the Fund, as they may be amended or supplemented from time to time and furnished
to the Portfolio Manager. Subject to such policies as the Board may determine
and consistent with Section 28(e) of the Securities Exchange Act of 1934, as
amended (the "1934 Act"), the Portfolio Manager shall not be deemed to have
acted unlawfully or to have breached any duty created by this Agreement or
otherwise solely by reason of its having caused the Portfolio to pay a broker or
dealer, acting as agent, for effecting a Portfolio transaction at a price in
excess of the amount of commission another broker or dealer would have charged
for effecting that transaction, if the Portfolio Manager determines in good
faith that such amount of commission was reasonable in relation to the value of
the brokerage and research services provided by such broker or dealer, viewed in
terms of either that particular transaction or the Portfolio Manager's (or its
affiliates') overall responsibilities with respect to the Portfolio 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
1934 Act and Rule lla2-2(T) thereunder, and subject to any other applicable laws
and regulations including Section 17(e) of the 1940 Act, the Portfolio Manager
is further authorized to place orders on behalf of the Portfolio through the
Portfolio Manager if the Portfolio Manager is registered as a broker or dealer
with the SEC or as a FCM with the Commodities Futures Trading Commission
("CFTC"), through any of its affiliates that are brokers or dealers or FCMs or
such other entities which provide similar services in foreign countries, or
through such brokers and dealers that also provide research or statistical
research and material, or other services to the Portfolio or the Portfolio
Manager. Such allocation shall be in such amounts and proportions as the
Portfolio Manager shall determine consistent with the above standards, and, upon
request, the Portfolio Manager will report on said allocation to the Investment
Adviser and Board, indicating the brokers, dealers or FCMs to which such
allocations have been made and the basis therefor. The Portfolio Manager shall
not direct brokerage to any broker-dealer in recognition of, or otherwise take
into account in making brokerage allocation decisions, sales of shares of a
Portfolio or of any other investment vehicle by that broker-dealer.
(d) may, on occasions when the purchase or sale of a security is
deemed to be in the best interest of a Portfolio 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 the Registration Statement as
furnished to the Portfolio 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 Portfolio Manager in a manner that is fair and equitable and
consistent with the Portfolio Manager's fiduciary obligations to the Portfolio
and to such other clients.
(e) will, in connection with the purchase and sale of securities for
the Portfolio, together with the Investment Adviser, arrange for the
transmission to the custodian and recordkeeping agent for the Fund, on a daily
basis, such confirmation(s), trade tickets, and other documents and information,
including, but not limited to, CUSIP, SEDOL, or other numbers that identify
securities to be purchased or sold on behalf of the Portfolio, as may be
reasonably necessary to enable the custodian and recordkeeping agent to perform
its administrative and recordkeeping responsibilities with respect to the
Portfolio, and with respect to Portfolio securities to be purchased or sold
through the Depository Trust Company, will arrange for the automatic
transmission of the confirmation of such trades to the Fund's custodian and
recordkeeping agent, and, if required, the Investment Adviser. The Portfolio
Manager agrees to comply with such rules, procedures and time frames as the
Fund's custodian
3
may reasonably set or provide with respect to the clearance and settlement of
transactions for a Portfolio, including but not limited to submission of trade
tickets. Any Portfolio assets shall be delivered directly to the Fund's
custodian.
(f) will provide reasonable assistance to the Investment Adviser,
custodian or recordkeeping agent for the Fund in determining or confirming,
consistent with the procedures and policies stated in the Fund's valuation
procedures and/or the Registration Statement, the value of any portfolio
securities or other assets of the Portfolio for which the Investment Adviser,
custodian or recordkeeping agent seeks assistance from the Portfolio Manager or
identifies for review by the Portfolio Manager. Such reasonable assistance shall
include (but is not limited to): (i) designating and providing timely access, on
an as-needed basis and upon the reasonable request of the Investment Adviser or
custodian, to one or more employees of the Portfolio Manager who are
knowledgeable about the security/issuer, its financial condition, trading and/or
other relevant factors for valuation, which employees shall be available for
consultation when the Board's Valuation Committee convenes; (ii) notifying the
Investment Adviser in the event any Portfolio security's value does not appear
to reflect corporate actions, news, significant events or such security
otherwise requires review to determine if fair valuation is necessary under the
Fund's procedures; (iii) applying to the Portfolio's assets the procedures of
the Portfolio Manager used for valuing the assets held by other accounts under
management of the Portfolio Manager and notifying the Investment Adviser of the
valuation of such assets determined under such procedures, including in the
event that the application of such procedures would result in a determination of
fair value with respect to any asset held by the Portfolio where a market
quotation is not readily available or is deemed to be unreliable with respect to
such asset; (iv) upon the request of the Investment Adviser or custodian,
assisting in obtaining bids and offers or quotes from broker/dealers or
market-makers with respect to securities held by the Portfolio; (v) verifying
pricing and providing fair valuations or recommendations for fair valuations in
accordance with the Fund's valuation procedures, as they may be amended from
time to time; and (vi) maintaining adequate records and written backup
information with respect to the securities valuation services provided
hereunder, and providing such information to the Investment Adviser or the Fund
upon request. Such records shall be deemed to be Fund records.
(g) will maintain and preserve such records related to each
Portfolio's transactions as required under the 1940 Act and the Advisers Act.
The Portfolio Manager will make available to the Fund and the Investment Adviser
promptly upon request, any of the Portfolio's investment records and ledgers
maintained by the Portfolio Manager (which shall not include the records and
ledgers maintained by the custodian and recordkeeping agent for the Fund), as
are necessary to assist the Fund and the Investment Adviser in complying 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 the Fund are being
conducted in a manner consistent with applicable laws and regulations.
(h) will regularly report to the Board on the investment program for
the Portfolio and the issuers and securities represented in the Portfolio, and
will furnish the Board, with respect to the Portfolio, such periodic and special
reports as the Board and the Investment Adviser may reasonably request,
including, but not limited to, reports concerning transactions and performance
of each Portfolio, a quarterly compliance checklist, reports regarding
compliance with the Fund's procedures pursuant to Rules 17e-l, 17a-7, 10f-3 and
12d3-1 under the 1940 Act, 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, IOs/POs, confirmation of the liquidity of all other securities in the
Funds, and compliance with the Portfolio Manager's Code of Ethics, and such
4
other reports or certifications that the Investment Adviser may reasonably
request from time to time.
(i) will adopt a written Code of Ethics complying with the
requirements of Rule 17j-l under the 1940 Act and Rule 204A-l under the Advisers
Act and will provide the Investment Adviser and the Fund with a copy of the Code
of Ethics, together with evidence of its adoption. Within 30 days of the end of
each calendar quarter during which this Agreement remains in effect, the chief
compliance officer and/or president and/or managing director (as the Investment
Adviser determines appropriate) of the Portfolio Manager shall certify to the
Investment Adviser that the Portfolio Manager has complied with the requirements
of Rule 17j-l during the previous calendar quarter and that there have been no
violations of the Code of Ethics or, if a violation has occurred, that
appropriate action has been taken in response to such violation. Upon written
request of the Investment Adviser or the Fund, the Portfolio Manager shall
permit representatives of the Investment Adviser and the Trust to examine the
reports (or summaries of the reports) required to be made under the Code of
Ethics and other records evidencing enforcement of the Code of Ethics.
(j) will provide to the Investment Adviser a copy of the Portfolio
Manager's Form ADV, and any supplements or amendments thereto, as filed with the
SEC, on an annual basis (or more frequently if requested by the Investment
Adviser or the Board) including any portion which contains disclosure of legal
or regulatory actions. The Portfolio Manager represents and warrants that it is
a duly registered investment adviser under the Advisers Act and will notify the
Investment Adviser immediately if any action is brought by any regulatory body
which would affect that registration. The Portfolio Manager will provide a list
of persons whom the Portfolio Manager wishes to have authorized to give written
and/or oral instructions to Custodians of assets for the Portfolio.
(k) will be responsible for the preparation and filing of such reports
with respect to the assets of the Portfolio reflecting holdings over which the
Portfolio Manager or its affiliates have investment discretion as may be
required from time to time, including but not limited to Schedule 13G, Form 13F
and Form SH.
(l) will not permit any employee of the Portfolio Manager to have any
material involvement with the management of the Portfolio 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
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 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.
5
(m) 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 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. The Fund and the Investment Adviser will not disclose or
use any records or information with respect to the Portfolio Manager obtained
pursuant to this Agreement, in any manner whatsoever except as expressly
authorized in this Agreement, and will keep confidential any information
obtained pursuant to this Agreement, and disclose such information only as
expressly authorized in this Agreement, if the Board 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.
(n) will assist the Investment Adviser, the Fund, and any of its or
their trustees, directors, officers, and/or employees in complying with the
provisions of the Xxxxxxxx-Xxxxx Act of 2002 to the extent such provisions
relate to the services to be provided by, and the obligations of, the Portfolio
Manager hereunder. Specifically, and without limitation to the foregoing, the
Portfolio Manager agrees to provide certifications to the principal executive
and financial officers of the Fund (the "certifying officers") that correspond
to and/or support the certifications required to be made by the certifying
officers in connection with the preparation and/or filing of the Fund's Form
N-CSRs, N-Qs, N-SARs, shareholder reports, financial statements, and other
disclosure documents or regulatory filings, in such form and content as the Fund
shall reasonably request or in accordance with procedures adopted by the Fund.
(o) is, along with its affiliated persons, permitted to enter into
transactions with the other portfolios of the Fund and affiliated persons of
those other portfolios of the Fund (collectively, the "Other Portfolios"). In
doing so, the Portfolio Manager is prohibited from consulting with the
Investment Adviser or the portfolio managers of these Other Portfolios
concerning securities transactions of the Portfolio except for the purpose of
complying with the conditions of Rule 12d3-1(a) and (b) under the 1940 Act.
(p) will exercise voting rights with respect to portfolio securities
held by a Portfolio in accordance with written policies and procedures adopted
by the Portfolio Manager, which may be amended from time to time, and which at
all times shall comply with the requirements of applicable federal statutes and
regulations and any related SEC guidance relating to such statutes and
regulations (collectively, "Proxy Voting Policies and Procedures"). The
Portfolio Manager shall vote proxies on behalf of each Portfolio in a manner
deemed by the Portfolio Manager to be in the best interests of each Portfolio
pursuant to the Portfolio Manager's written Proxy Voting Policies and
Procedures. The Portfolio Manager shall provide disclosure regarding the Proxy
Voting Policies and Procedures in accordance with the requirements of Form N-1A
for inclusion in the Registration Statement. The Portfolio Manager shall report
to the Investment Adviser in a timely manner a record of all proxies voted, in
such form and format that complies with acceptable federal statutes and
regulations (e.g., requirements of Form N-PX). The Portfolio Manager shall
certify at least annually or more often as may reasonably be requested by the
Investment Adviser, as to its compliance with its own Proxy Voting Policies and
Procedures and applicable federal statues and regulations.
(q) will provide reasonable assistance to the Fund and the Fund's
Chief Compliance Officer ("CCO") in complying with Rule 38a-l under the 1940
Act. Specifically, the Portfolio Manager represents and warrants that it shall
maintain a compliance program in
6
accordance with the requirements of Rule 206(4)-7 under the Advisers Act, and
shall provide the CCO with reasonable access to information regarding the
Portfolio Manager's compliance program, which access shall include on-site
visits with the Portfolio Manager as may be reasonably requested from time to
time. In connection with the periodic review and annual report required to be
prepared by the CCO pursuant to Rule 38a-l, the Portfolio Manager agrees to
provide certifications as may be reasonably requested by the CCO related to the
design and implementation of the Portfolio Manager's compliance program.
(r) will comply with the Fund's policy on selective disclosure of
portfolio holdings of the Fund (the "Selective Disclosure Policy"), as provided
in writing to the Portfolio Manager and as may be amended from time to time. The
Portfolio Manager agrees to provide a certification with respect to compliance
with the Fund's Selective Disclosure Policy as may be reasonably requested by
the Fund from time to time.
(s) will use its best efforts to notify the Investment Adviser
promptly in the event that, in the judgment of the Portfolio Manager, Portfolio
share transaction activity becomes disruptive to the ability of the Portfolio
Manager to effectively manage the assets of a Portfolio consistent with the
Portfolio's investment objectives and policies.
(t) will provide assistance as may be reasonably requested by the
Investment Adviser in connection with compliance by the Portfolio with any
current or future legal and regulatory requirements related to the services
provided by the Portfolio Manager hereunder.
(u) will provide such certifications to the Fund as the Fund or the
Investment Adviser may reasonably request related to the services provided by
the Portfolio Manager hereunder, including (but not limited to) certifications
of compliance with Trust procedures, the Registration Statement, and applicable
securities regulations.
(v) will monitor and promptly inform the Investment Adviser of
developments relating to class action litigation involving securities held by
the Portfolio, and upon request by the Investment Adviser, research and confirm
to the Investment Adviser whether the Portfolio held or traded in a particular
security, on any particular day or during any particular timeframe within the
term of this Agreement, as the Investment Adviser may specify; and Portfolio
Manager will provide relevant trade information (for example, a schedule of
purchases and sales and/or holdings) for such security.
(w) will provide reasonable assistance to the Investment Adviser with
respect to the annual audit of the Fund's financial statements, including, but
not limited to: (i) providing broker contacts as needed for obtaining trade
confirmations (in particular with respect to investments in loans (including
participations and assignments) and all derivatives, including swaps); (ii)
providing copies of all documentation relating to investments in loans
(including participations and assignments) and derivative contracts, within a
reasonable time after the execution of such documentation; (iii) providing
assistance in obtaining trade confirmations in the event the Fund or the Fund's
independent registered public accounting firm is unable to obtain such
confirmations directly from the brokers; and (iv) obtaining market quotations
for investments (including investments in loans (including participations and
assignments) and derivatives) that are not readily ascertainable in the event
the Fund or the Fund's independent registered public accounting firm is unable
to obtain such market quotations through independent means.
(x) will, on an annual basis, advise the Investment Adviser (i) if the
Portfolio Manager acts as sub-adviser to another U.S. registered mutual fund
that follows the same investment strategy as the Portfolio and (ii) if so,
whether the Portfolio Manager's fee rate is less than the rate charged the
Investment Adviser for management of the Portfolio.
7
(y) will, for the duration of this Agreement, not directly or
indirectly solicit or induce any personnel of Investment Adviser or its
affiliated companies to leave the employ of Investment Adviser or affiliated
company. After personnel of Investment Adviser or an affiliate cease to be in
the employ of Investment Adviser or affiliate, Portfolio Manager shall be free
to directly or indirectly employ or retain such personnel in any capacity, so
long as Portfolio Manager did not solicit or induce such personnel to leave the
employ of Investment Adviser or its affiliate.
3. DISCLOSURE ABOUT PORTFOLIO MANAGER AND PORTFOLIO. The Portfolio Manager
has reviewed the current Registration Statement and agrees to promptly review
future amendments to the Registration Statement, including any supplements
thereto, which relate to the Portfolio Manager or the Portfolio, filed with the
SEC (or which will be filed with the SEC in the future) and represents and
warrants that, solely with respect to the disclosure respecting or relating to
the Portfolio Manager, including any performance information the Portfolio
Manager provides that is included in or serves as the basis for information
included in the Registration Statement, such Registration Statement contains as
of the date hereof, and will contain as of the date of any 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 Portfolio Manager further agrees to notify the Investment Adviser and the
Fund immediately of any material fact about the Portfolio Manager, known to the
Portfolio Manager respecting or relating to the Portfolio Manager, that is not
contained in the Registration Statement or prospectus for the Fund, or any
amendment or supplement thereto, or of any statement respecting or relating to
the Portfolio Manager contained therein that becomes untrue in any material
respect. With respect to the disclosure respecting each Portfolio, the Portfolio
Manager represents and agrees that the descriptions in the Fund's Prospecctus,
as of the date of this Agreement and as of the date of any Registration
Statement or supplement thereto, as furnished to the Portfolio Manager, (a)
about the Portfolio's investment goal and main investments ("Portfolio
Description") is consistent with the manner in which the Portfolio Manager
intends to manage each Portfolio, and (b) about the Portfolio's risks ("Risk
Description") is consistent with risks known to the Portfolio Manager that arise
in connection with the manner in which the Portfolio Manager intends to manage
the Portfolio. The Portfolio Manager further agrees to notify the Investment
Adviser and the Fund promptly in the event that the Portfolio Manager becomes
aware that the Portfolio Description for a Portfolio is inconsistent in any
material respect with the manner in which the Portfolio Manager is managing the
Portfolio, and in the event that the Risk Description is inconsistent in any
material respect with the risks known to the Portfolio Manager that arise in
connection with the manner in which the Portfolio Manager is managing the
Portfolio. In addition, the Portfolio Manager agrees to comply with the
Investment Adviser's reasonable request for information regarding the personnel
of the Portfolio Manager who are responsible for the day-to-day management of a
Portfolio's assets.
4. EXPENSES. The Portfolio Manager shall bear all expenses incurred by it
and its staff with respect to all activities in connection with the performance
of the Portfolio Manager's services under this Agreement, including but not
limited to salaries, overhead, travel, preparation of Board materials, review of
marketing materials relating to Portfolio Manager or other information provided
by Portfolio Manager to the Investment Adviser and/or the Funds Distributor, and
marketing support. Portfolio Manager agrees to pay to the Investment Adviser the
cost of generating a prospectus supplement, which includes preparation, filing,
printing, and distribution (including mailing) of the supplement, if the
Portfolio Manager makes any changes that require immediate disclosure in the
prospectus or any required regulatory documents by supplement, including changes
to its structure or ownership, to investment personnel, to investment style or
management, or otherwise ("Changes"), and at the time of notification to the
Fund by the Portfolio Manager of such Changes, the Fund is not generating a
supplement for other purposes or the Fund does not wish to add such Changes to a
pending supplement. In the
8
event two or more portfolio managers each require a supplement simultaneously,
the expense of each supplement will be shared pro rata with such other portfolio
manager(s) based upon the number of pages required by each such portfolio
manager. All other expenses not specifically assumed by the Portfolio Manager
hereunder or by the Investment Adviser under the Advisory Agreement are borne by
the applicable Portfolio of the Fund. The Fund, the Portfolio Manager and the
Investment Adviser shall not be considered as partners or participants in a
joint venture.
5. COMPENSATION. For the services provided and the expenses borne by the
Portfolio Manager pursuant to this Agreement, the Investment Adviser will pay to
the Portfolio Manager a fee in accordance with Exhibit A attached to this
Agreement. This fee will be computed and accrued daily and payable monthly. The
fees for any month during which this Agreement is in effect for less than the
entire month shall be pro-rated based on the number of days during such month
that the Agreement was in effect.
6. SEED MONEY. The Investment Adviser agrees that the Portfolio Manager
shall not be responsible for providing money for the initial capitalization of
any Portfolio.
7. COMPLIANCE.
(a) The Portfolio Manager agrees that it shall immediately notify the
Investment Adviser and the Fund (i) in the event that the SEC, CFTC, or any
banking or other regulatory body has censured the Portfolio 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; (ii) upon having a reasonable basis for
believing that a Portfolio has ceased to qualify or might not qualify as a
regulated investment company under Subchapter M of the Code; and (iii) upon
having a reasonable basis for believing that the Portfolio has ceased to comply
with the diversification provisions of Section 817(h) of the Code or the
Regulations thereunder. The Portfolio Manager further agrees to notify the
Investment Adviser and Fund immediately of any material fact known to the
Portfolio Manager respecting or relating to the Portfolio Manager that is not
contained in the Registration Statement, or 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 immediately notify the
Portfolio Manager (i) in the event that the SEC has censured the Investment
Adviser or the Fund; placed limitations upon either of their activities,
functions, or operations; suspended or revoked the Investment Adviser's
registration as an investment adviser; or has commenced proceedings or an
investigation that may result in any of these actions; (ii) upon having a
reasonable basis for believing that a Portfolio has ceased to qualify or might
not qualify as a regulated investment company under Subchapter M of the Code; or
(iii) upon having a reasonable basis for believing that the Portfolio has ceased
to comply with the diversification provisions of Section 817(h) of the Code or
the Regulations thereunder.
8. INDEPENDENT CONTRACTOR. The Portfolio Manager shall for all purposes
herein be deemed to be an independent contractor and shall, unless otherwise
expressly provided herein or authorized by the Investment Adviser from time to
time, have no authority to act for or represent the Investment Adviser in any
way or otherwise be deemed its agent. The Portfolio Manager understands that
unless provided herein or authorized from time to time by the Fund, the
Portfolio Manager shall have no authority to act for or represent the Fund in
any way or otherwise be deemed the Fund's agent.
9. BOOKS AND RECORDS. In compliance with the requirements of and to the
extent required by Section 31(a) of the 1940 Act and the rules thereunder, the
Portfolio Manager
9
xxxxxx agrees that all records which it maintains for the Portfolio are the
property of the Fund and further agrees to surrender promptly to the Fund any of
such records upon the Fund's or the Investment Adviser's request, although the
Portfolio 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 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 this
Agreement, it is understood and agreed that the Fund reserves the right to
direct, approve or disapprove any action hereunder taken on its behalf by the
Portfolio Manager, provided, however, that the Portfolio Manager shall not be
liable for any losses to the Fund resulting from the Fund's direction, or from
the Fund's disapproval of any action proposed to be taken by the Portfolio
Manager.
12. SERVICES NOT EXCLUSIVE. It is understood that the services of the
Portfolio Manager and its employees are not exclusive, and nothing in this
Agreement shall prevent the Portfolio 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 Portfolio) or from engaging in other activities.
13. LIABILITY. Except as may otherwise be required by the 1940 Act or the
rules thereunder or other applicable law, the Fund and the Investment Adviser
agree that the Portfolio Manager, any affiliated person of the Portfolio
Manager, and each person, if any, who, within the meaning of Section 15 of the
1933 Act, controls the Portfolio Manager, shall not be liable for, or subject to
any damages, expenses, or losses in connection with, any act or omission
connected with or arising out of any services rendered under this Agreement,
except by reason of willful misfeasance, bad faith, or gross negligence in the
performance of the Portfolio Manager's duties, or by reason of reckless
disregard of the Portfolio Manager's obligations and duties under this
Agreement. Notwithstanding the foregoing, nothing contained in this Agreement
shall constitute a waiver or limitation of rights that the Fund may have under
federal or state securities laws.
14. INDEMNIFICATION.
(a) The Portfolio Manager agrees to indemnify and hold harmless, the
Investment Adviser, any affiliated person within the meaning of Section 2(a)(3)
of the 1940 Act ("affiliated person") of the Investment Adviser, and each
person, if any, who, within the meaning of Section 15 of the 1933 Act, controls
("controlling person") the Investment Adviser (collectively, "PL Indemnified
Persons") against any and all losses, claims, damages, liabilities or litigation
(including reasonable legal and other expenses), to which the Investment Adviser
or such affiliated person or controlling 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 Portfolio Manager's responsibilities to the
Fund which (i) are based upon any willful misfeasance, bad faith, negligence, or
reckless disregard of, the Portfolio Manager's obligations and/or duties under
this Agreement by the Portfolio Manager or by any of its directors, officers or
employees, or any affiliate acting on behalf of the Portfolio Manager (other
than a PL Indemnified Person), or (ii) are based upon any untrue statement or
alleged untrue statement of a material fact contained in a Registration
Statement or prospectus covering the Shares of the Fund or any Portfolio, 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
10
reliance upon information furnished in writing to the Investment Adviser, the
Fund, or any affiliated person of the Fund by the Portfolio Manager or any
affiliated person of the Portfolio Manager (other than a PL Indemnified Person)
provided, however, that in no case is the Portfolio Manager's indemnity 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 obligations and duties under this Agreement.
(b) The Investment Adviser agrees to indemnify and hold harmless the
Portfolio Manager, any affiliated person within the meaning of Section 2(a)(3)
of the 1940 Act of the Portfolio Manager and each person, if any, who, within
the meaning of Section 15 of the 1933 Act controls ("controlling person") the
Portfolio Manager (collectively, "Portfolio Manager Indemnified Persons")
against any and all losses, claims, damages, liabilities or litigation
(including reasonable legal and other expenses) to which a Portfolio 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 Investment Adviser's responsibilities as Investment Adviser of the Fund
which (i) are based upon any willful misfeasance, bad faith or negligence, or
reckless disregard by the Investment Adviser, any of its directors, officers, or
employees or any affiliate acting on behalf of the Investment Adviser (other
than a Portfolio Manager Indemnified Person), or (ii) are based upon any untrue
statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus covering the Shares of the Fund or any
Portfolio, 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, unless such
a statement or omission was made in reliance upon information furnished in
writing to the Investment Adviser, the Fund, or any affiliated person of the
Fund by the Portfolio Manager or any affiliated person of the Portfolio Manager
(other than a PL Indemnified Person) provided however, that in no case is the
Investment Adviser's indemnity in favor of the Portfolio Manager Indemnified
Persons deemed to protect such person against any liability to which any such
person would otherwise be subject by reason of willful misfeasance, bad faith,
or gross negligence in the performance of his duties, or by reason of his
reckless disregard of obligations and duties under this Agreement.
15. DELEGATION. The Fund and the Investment Adviser consent to the
Portfolio Manager's asset management affiliates within the UBS Global Asset
Management Business Division of UBS AG, the parent company of the Portfolio
Manager, providing settlement, order placement, execution and/or other
operational services for the Fund which otherwise could be performed by the
Portfolio Manager hereunder; provided, however, that there will be no delegation
of the day-to-day investment advisory services described herein and no
additional charges, fees or other compensation will be paid for such services.
To the extent that such delegation occurs, references to the Portfolio Manager
herein shall be deemed to include reference to its affiliates.
16. DURATION AND TERMINATION. This Agreement shall become effective as of
the date of execution first written above, and shall continue in effect for two
years and continue thereafter on an annual basis with respect to each Portfolio;
provided that such annual continuance is specifically approved at least annually
(a) by the vote of a majority of the Board, or (b) by the vote of a majority of
the outstanding voting shares of each Portfolio, and provided that continuance
is also approved by the vote of a majority of the Board who are not parties to
this Agreement or "interested persons" (as such term is defined in the 1940 Act)
of the Fund, the Investment Adviser, or the Portfolio Manager, cast in person at
a meeting called for the purpose of voting on such approval.
11
This Agreement may be terminated with respect to any Portfolio:
(a) by the Fund at any time with respect to the services provided by
the Portfolio Manager, without the payment of any penalty, by vote of a majority
of the Board or by a vote of a majority of the outstanding voting shares of the
Fund or, with respect to a particular Portfolio, by vote of a majority of the
outstanding voting shares of such Portfolio, upon sixty (60) days' prior written
notice to the Portfolio Manager and the Investment Adviser;
(b) by the Portfolio Manager at any time, without the payment of any
penalty, upon sixty (60) days' prior written notice to the Investment Adviser
and the Fund.
(c) by the Investment Adviser at any time, without the payment of any
penalty, upon sixty (60) days' prior written notice to the Portfolio Manager and
the Fund.
This Agreement will terminate automatically in event of its assignment
under the 1940 Act and any rules adopted by the SEC thereunder, but shall not
terminate in connection with any transaction not deemed an assignment. In the
event this Agreement is terminated or is not approved in the manner described
above (i) Portfolio Manager agrees to provide all reports, certification and
assistance called for pursuant to paragraphs 2(b), 2(h), 2(i), 2(k), 2(n), 2(p),
and 2(q) within 30 business days of termination; and (ii) the Sections or
Paragraphs numbered 2(g) for a period of six years, and 2(m), 2(t), 2(v), 9, 10,
13, 14, 16, 17, 18 and 19 of this Agreement as well as any applicable provision
of this Paragraph numbered 15 shall remain in effect.
17. USE OF NAME.
(a) It is understood that the name "Pacific Life Insurance Company",
"Pacific Life Fund Advisors LLC", "Pacific Asset Management", and "Pacific
Select Fund" and any abbreviated forms and any derivatives thereof and any logos
associated with those names (including, without limitation, the whale logo) are
the valuable property of the Investment Adviser and its affiliates, and that the
Portfolio Manager shall not use such names (or abbreviations, derivatives or
logos) without the prior written approval of the Investment Adviser and only so
long as the Investment Adviser is an investment adviser to the Fund and/or the
Portfolio. Upon termination of this Agreement, the Portfolio Manager shall
forthwith cease to use such names (or abbreviations, derivatives or logos).
(b) It is understood that the name "UBS Global Asset Management" and
any derivative thereof or any logo associated with that name is the valuable
property of the Portfolio Manager and that the Fund and the Investment Adviser
have the right to use such name (or derivative or logo), in the Fund's
prospectus, SAI and Registration Statement or other filings, forms or reports
required under applicable state or federal securities, insurance, or other law,
for so long as the Portfolio Manager is a Portfolio Manager to the Fund and/or
one of the Portfolios, provided, however, that the Fund may continue to use the
name of the Portfolio Manager in its Registration Statement and other documents
to the extent deemed necessary by the Fund to comply with disclosure obligations
under applicable law and regulation. Neither the Fund nor the Investment Adviser
shall use the Portfolio Manager's name or logo in promotional or sales related
materials prepared by or on behalf of the Investment Adviser or the Fund,
without prior review and approval by the Portfolio Manager, which may not be
unreasonably withheld. Upon termination of this Agreement, the Fund and the
Investment Adviser shall forthwith cease to use such names (and logo), except as
provided for herein.
18. LIMITATION OF LIABILITY. A copy of the Declaration of Trust for the
Fund is on file with the Secretary of the State of Massachusetts. The
Declaration of Trust has been
12
executed on behalf of the Fund by a Trustee of the Fund in his capacity as
Trustee of the Fund and not individually. The obligations of this Agreement with
respect to each Portfolio shall be binding upon the assets and property of each
such Portfolio individually, and not jointly, and shall not be binding upon any
Trustee, officer, employee, agent or shareholder, whether past, present, or
future, of the Fund individually, or upon the Fund generally or upon any other
portfolio of the Fund.
19. NOTICES. All notices and other communications hereunder shall be in
writing sent by facsimile first, if practicable, but shall only be deemed given
if delivered in person or by messenger, cable, certified mail with return
receipt, or by a reputable overnight delivery service which provides evidence of
receipt to the parties at the following addresses (or at such other address or
number for a party as shall be specified by like notice):
A. if to the Portfolio Manager, to:
UBS Global Asset Management (Americas) Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Facsimile transmission number: 000-000-0000
Attention: Legal Department
B. if to the Investment Adviser, to:
Pacific Life Fund Advisors LLC
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Facsimile transmission number: (000) 000-0000
Attention: Xxxxx X. Xxxxx
C. if to the Fund, to:
Pacific Select Fund
c/o Pacific Life Insurance Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Facsimile transmission number: (000) 000-0000
Attention: Xxxxx X. Xxxxx
20. MISCELLANEOUS.
(a) This Agreement shall be governed by the laws of California,
without regard to the conflict of law principles thereof, provided that nothing
herein shall be construed in a manner inconsistent with the 1940 Act, the
Advisers Act, 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.
(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 and
under the 1940 Act, this Agreement may only be assigned by any party with prior
written consent of the other parties.
13
(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 FUND ADVISORS LLC
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- --------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
Title: President and Chief Title: Vice President &
Executive Officer Secretary
UBS GLOBAL ASSET MANAGEMENT (AMERICAS) INC.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------- --------------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxx
Title: COO - Americas Title: Assistant Secretary
Institutional Distribution
PACIFIC SELECT FUND
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- --------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
Title: Chairman and Chief Title: Secretary
Executive Officer
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EXHIBIT A
PACIFIC SELECT FUND
FEE SCHEDULE
EFFECTIVE: MAY 1, 2009
PORTFOLIO: LARGE-CAP GROWTH PORTFOLIO
The Investment Adviser will pay to the Portfolio Manager a monthly fee for
its services for the above noted Portfolio based on:
(a) The annual percentage of the combined average daily net assets of the
Large-Cap Growth Portfolio of Pacific Select Fund and the PL Large-Cap
Growth Fund of Pacific Life Funds according to the following schedule:
RATE% BREAK POINT (ASSETs)
----- --------------------
0.45% on the first $25 million
0.40% on the next $225 million
0.30% on the next $1.75 billion
0.25% on excess over $2.0 billion
(b) The ratio of the PSF Large-Cap Growth Portfolio's average daily net
assets over the combined assets of the PSF Large-Cap Growth Portfolio and
the PL Large-Cap Growth Fund of Pacific Life Funds.
In recognition of the fact that the Portfolio Manager may have an inherent
constraint with respect to the amount of money that Portfolio Manager is able to
manage in a particular strategy, Portfolio Manager agrees to hold back or
reserve total capacity (that is, agrees to accept a certain level of dollars)
for the Large-Cap Growth Portfolio of Pacific Select Fund and the PL Large-Cap
Growth Fund of Pacific Life Funds and the strategies employed for the Portfolios
and investments as follows:
$5 billion dollars combined (to be determined on a net cash flow basis into
the account) for the first three years. After three years, the capacity amount
will be revisited.
Fees for services shall be prorated for any portion of a year in which the
Agreement is not effective.
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