Pacific Select Fund NSAR 6-30-10
EXHIBIT 77Q1(e) COPIES OF ANY NEW OR AMENDED REGISTRANT
INVESTMENT ADVISORY CONTRACTS
The following documents are included in Registrant's Form Type Type N1A/B,
Accession No. 0000950123-10-039186 filed on April 28, 2010, and
incorporated by reference herein:
Advisory Fee Waiver Agreement - Large-Cap Growth Portfolio
Advisory Fee Waiver Agreement - Floating Rate Loan Portfolio
Second Amendment to the Portfolio Management Agreement - AllianceBernstein L.P.
Portfolio Management Agreement - Franklin Advisory Services, LLC
PACIFIC SELECT FUND
AMENDMENT TO THE PORTFOLIO MANAGEMENT AGREEMENT
Reference is made to the Portfolio Management Agreement (the
"Agreement") made the 1st day of May 2003, as amended, by and among Pacific Life
Fund Advisors LLC ("PLFA"), a Delaware limited liability company, Xxxxxx Xxxxxxx
Investment Management Inc. ("Xxxxxx Xxxxxxx"), a Delaware corporation, doing
business as Xxx Xxxxxx ("Portfolio Manager"), and Pacific Select Fund, a
Massachusetts business trust ("Fund"). The Agreement is hereby amended to add
the provisions set forth below (together the "Amendment"), which is made
effective on the closing date of the Transaction, as such term is defined below.
RECITALS
The Portfolio Manager is currently the subadviser to the Real Estate
Portfolio, Xxxxxxxx Portfolio and the Mid-Cap Growth Portfolios of the Fund
(collectively, the "Portfolios"). Xxxxxx Xxxxxxx, has entered into a transaction
pursuant to which Xxxxxx Xxxxxxx'x Xxx Xxxxxx asset management business,
including portions of the Portfolio Manager's related businesses, will be sold
to INVESCO Ltd. (the "Transaction"). Pursuant to the Transaction, the investment
team responsible for Xxxxxxxx Portfolio will be transferred to INVESCO Ltd. The
investment teams responsible for the Real Estate and Mid-Cap Growth Portfolios
will remain at Xxxxxx Xxxxxxx, which will no longer do business under the Xxx
Xxxxxx name, and Xxxxxx Xxxxxxx will continue to serve as Portfolio Manager to
the Real Estate and Mid-Cap Portfolios pursuant to the Agreement.
The above referenced transaction will not result in a change of actual
control or management of Xxxxxx Xxxxxxx Investment Management Inc.
NOW, THEREFORE, in consideration of the premises:
1. All references in the Agreement to "Xxxxxx Xxxxxxx Investment
Management Inc., doing business as Xxx Xxxxxx" and "Xxx Xxxxxx" are
hereby changed to "Xxxxxx Xxxxxxx Investment Management Inc.";
2. The Exhibit A attached to this Amendment hereby replaces the current
Exhibit A to the Agreement; and
3. All terms and conditions set forth in the Agreement are hereby
confirmed and remain in full force and effect.
IN WHITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers.
XXXXXX XXXXXXX INVESTMENT MANAGEMENT INC.
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
ACCEPTED AND AGREED:
PACIFIC LIFE FUND ADVISORS LLC
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxx
Title: VP, Fund Advisor Operations Title: Vice President & Secretary
PACIFIC SELECT FUND
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxx
Title: Vice President Title: Vice President & Secretary
EXHIBIT A
PACIFIC SELECT FUND
FEE SCHEDULE
EFFECTIVE: On the Effective Date, as defined herein
PORTFOLIO: REAL ESTATE PORTFOLIO
The Investment Adviser will pay to the Portfolio Manager a monthly fee
based on the combined average daily net assets of the Portfolios at an annual
rate equal to:
(a) 0.35% on the first $2 billion of the Combined Assets as defined below,
0.32% on the next $1 billion of the Combined Assets, plus
0.30% on Combined Assets above $3 billion;
multiplied by
(b) the ratio of the Real Estate Portfolio's average daily net assets over the
Combined Assets.
PORTFOLIO: MID-CAP GROWTH PORTFOLIO
The Investment Adviser will pay to the Portfolio Manager a monthly fee
based on the combined average daily net assets of the Portfolios at an annual
rate equal to:
(a) 0.35% on the first $2 billion of the Combined Assets as defined below,
0.32% on the next $1 billion of the Combined Assets, plus
0.30% on Combined Assets above $3 billion;
multiplied by
(b) the ratio of the Mid-Cap Growth Portfolio's average daily net assets over
the Combined Assets.
ALL PORTFOLIOS: For purposes of the above calculations, "Combined Assets" means
the sum of: (i) the average daily net assets of the Real Estate and Mid-Cap
Growth Portfolios of Pacific Select Fund managed by the Portfolio Manager
pursuant to this Agreement, and (ii) the average daily net assets of the PL Real
Estate Fund and the PL Mid-Cap Growth Fund of Pacific Life Funds managed by the
Portfolio Manager pursuant to a Fund Management Agreement between the Investment
Adviser, the Portfolio Manager and Pacific Life Funds, dated May 1, 2003, as
amended.
Fees for services shall be prorated for any portion of a year in which
the Agreement is not effective.
EXHIBIT A
This is Exhibit A to the Portfolio Management Agreement, by and among
Pacific Select Fund, Pacific Life Fund Advisors LLC and BlackRock Investment
Management, LLC dated September 26, 2006 as amended May 1, 2007.
PACIFIC SELECT FUND
FEE SCHEDULE
EFFECTIVE: MAY 1, 2010
The Investment Adviser will pay to the Portfolio Manager a monthly fee
based on the combined average daily net assets of the Portfolios at an annual
rate equal to:
RATE (%) BREAK POINT (ASSETS)
-------- ---------------------
0.04% on first $300 million
0.02% on excess
PORTFOLIOS: EQUITY INDEX PORTFOLIO
SMALL-CAP INDEX PORTFOLIO
PD LARGE-CAP VALUE INDEX PORTFOLIO
PD LARGE-CAP GROWTH INDEX PORTFOLIO
PD SMALL-CAP VALUE INDEX PORTFOLIO
PD SMALL-CAP GROWTH INDEX PORTFOLIO
SMALL-CAP EQUITY PORTFOLIO
The fees for services shall be prorated for any portion of a year in which
the Agreement is not effective.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed effective 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 Executive Title: VP and Secretary
Officer
BLACKROCK INVESTMENT MANAGEMENT, LLC
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
PACIFIC SELECT FUND
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- ------------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
Title: Chairman Title: VP and Secretary
SUBADVISORY AGREEMENT
AGREEMENT made effective the 1st day of May, 2010 among COLUMBIA MANAGEMENT
INVESTMENT ADVISERS, LLC (formerly, RiverSource Investments, LLC) a Minnesota
limited liability company ("Subadviser"), PACIFIC LIFE FUND ADVISORS LLC, a
Delaware Limited Liability Company ("Investment Adviser"), and PACIFIC SELECT
FUND, a Massachusetts Business Trust (the "Trust").
WHEREAS, the Trust 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 Subadviser is registered with the SEC as an investment adviser
under the Advisers Act;
WHEREAS, the Trust has retained the Investment Adviser to render investment
advisory services to the various portfolios of the Trust pursuant to an Advisory
Agreement, as amended (the "Advisory Agreement"), and the Advisory Agreement
authorizes the Investment Adviser to engage a subadviser 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 Subadviser;
WHEREAS, the Trust and the Investment Adviser desire to retain the
Subadviser to furnish investment advisory services to one or more portfolios of
the Trust, and the Subadviser 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 Trust, the Investment Adviser, and the
Subadviser as follows:
1. APPOINTMENT. The Trust and the Investment Adviser hereby appoint
Subadviser to act as subadviser to provide investment advisory services to the
portfolios of the Trust listed on Exhibit A attached hereto (individually, a
"Portfolio" and together, the "Portfolios") for the periods and on the terms set
forth in this Agreement. The Subadviser 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 Subadviser to
render investment advisory services to one or more portfolios of the Trust other
than the Portfolio, the Investment Adviser shall notify the Subadviser in
writing and shall revise Exhibit A to reflect such additional portfolio(s). If
the Subadviser is willing to render such services, it shall notify the Trust and
the Investment Adviser in writing, whereupon such portfolio shall become a
Portfolio hereunder, and be subject to this Agreement.
2. SUBADVISER DUTIES. Subject to the supervision of the Trust's Board of
Trustees (the "Board") and the Investment Adviser, the Subadviser will provide a
continuous investment program for the Portfolio and determine the composition of
the assets of the Portfolio. The
Subadviser will provide investment research and analysis, which may include
computerized investment methodology, and will conduct a continuous program of
evaluation, investment, purchases and/or sales, and reinvestment of the
Portfolio's assets by determining the securities, cash and other investments,
including, but not limited to, futures, options contracts, swaps and other
derivative instruments, if any, and to the extent permitted in the Portfolio's
registration statement, 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
Subadviser 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 Subadviser 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 Subadviser is authorized to and shall exercise tender offers, exchange
offers and vote proxies on behalf of the Portfolio, each as the Subadviser
determines is in the best interest of the Portfolio in accordance with the
Subadviser's proxy voting policy. The Subadviser is authorized, on behalf of the
Portfolio, to open brokerage accounts in accordance with Trust procedures. The
Subadviser is authorized, on behalf of the Portfolio, 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 Trust procedures.
In performing these duties, the Subadviser:
(a) will conform with (1) applicable provisions of 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 Trust, to the Investment Adviser (as
provided to the Subadviser by the Investment Adviser), or to the Subadviser);
(2) applicable rules and regulations under the Securities Exchange Act of 1934,
as amended (the "1934 Act"); (3) any applicable written procedures, policies and
guidelines adopted by the Board and furnished to the Subadviser; (4) the Trust's
objectives, investment policies and investment restrictions as stated in the
Trust's Prospectus and Statement of Additional Information as supplemented or
amended from time to time, as furnished to the Subadviser; (5) the provisions of
the Trust'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"); (6) Section 851(b)(2) and (3) of
Subchapter M of the Internal Revenue Code of 1986, as amended (the "Code"); (7)
any other applicable laws and regulations, including without limitation, proxy
voting regulations; (8) the provisions of Section 817(h) of the Code, applicable
to the Portfolio; and (9) all other applicable federal and state laws and
regulations pertaining to investment vehicles underlying variable annuity and/or
variable life insurance contracts. To the extent that the Subadviser 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 Subadviser shall designate to the Trust's Custodian those
assets to be segregated in accordance with the 1940 Act, if necessary, based
upon trading strategies and positions the Subadviser employs on behalf of the
Portfolio, as well as to segregate assets, if necessary, in accordance with the
1934 Act and any other requirements
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of broker/dealers who may execute transactions for the Portfolio in connection
therewith. Until the Investment Adviser delivers any supplements or amendments
to the Subadviser, the Subadviser shall be fully protected in relying on the
Trust's Registration Statement previously furnished by the Investment Adviser to
the Subadviser. In managing the Portfolio in accordance with the requirements of
this Section 2, the Subadviser shall be entitled to receive and act upon advice
of counsel to the Trust, to the Investment Adviser or to the Subadviser that is
also acceptable to the Investment Adviser.
(b) will (i) use its best efforts to 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 and futures commission merchant ("FCM")
selection, and for negotiation of commission rates. The Subadviser'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 Trust, as they
may be amended or supplemented from time to time and furnished to the
Subadviser. 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 Subadviser 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 Subadviser 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 Subadviser'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 Subadviser is further authorized to
place orders on behalf of the Portfolio through the Subadviser if the Subadviser
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 Subadviser. Such allocation shall be in such amounts and
proportions as the Subadviser shall determine consistent with the above
standards, and, upon request, the Subadviser 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 Subadviser is
authorized to open brokerage accounts on behalf of the Portfolio in accordance
with Trust procedures. The Subadviser 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.
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(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 Subadviser. 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 Subadviser in a manner that is fair and equitable in the judgment of
the Subadviser in the exercise of its 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 Trust, 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 Trust's custodian and
recordkeeping agent, and, if required, the Investment Adviser. The Subadviser
agrees to comply with such rules, procedures and time frames as the Trust'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 Trust's custodian.
(f) will provide reasonable assistance to the Investment Adviser,
custodian or recordkeeping agent for the Trust in determining or confirming,
consistent with the procedures and policies stated in the Trust's valuation
procedures and/or the Registration Statement, each as furnished to the
Subadviser, 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 Subadviser or identifies for review by the Subadviser.
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 Subadviser who are knowledgeable about the security/issuer, its
financial condition, trading and/or other relevant factors for valuation, which
employees shall make all reasonable efforts to be available for consultation
when the Board's Valuation Committee convenes; (ii) notifying the Investment
Adviser in the event the Subadviser determines with respect to a security that
is held by the Portfolio that its value does not appear to reflect corporate
actions or significant events or such security otherwise requires review to
determine if fair valuation is necessary under the Trust's procedures; (iii)
applying to the Portfolio's assets the procedures of the Subadviser used for
valuing the assets held by other accounts under management of the Subadviser
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
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pricing and providing fair valuations or recommendations for fair valuations in
accordance with the Trust's valuation procedures, as they may be amended from
time to time, as furnished to the Subadviser; 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 Trust upon request. Such records shall be deemed to be Trust
records.
(g) will maintain and preserve such records related to the Portfolio's
transactions as required under the 1940 Act and the Advisers Act. The Subadviser
will make available to the Trust and the Investment Adviser promptly upon
written request, any of the Portfolio's investment records and ledgers
maintained by the Subadviser (which shall not include the records and ledgers
maintained by the custodian and recordkeeping agent for the Trust), as are
necessary to assist the Trust 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 Trust are being
conducted in a manner consistent with applicable laws and regulations.
(h) will regularly report to the Board, quarterly within the time
prescribed by the Investment Adviser or on other occasions upon the reasonable
request of the Board or the Investment Adviser, 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 the Portfolio, a quarterly compliance checklist, reports regarding compliance
with the Trust's procedures pursuant to Rules 17e-1, 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 Portfolios, and
compliance with the Subadviser'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-1 under the 1940 Act and Rule 204A-1 under the Advisers
Act and will provide the Investment Adviser and the Trust 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
president or a vice president the chief compliance officer and/or president
and/or managing director (or such other personnel as the Investment Adviser
determines appropriate) of the Subadviser shall certify to the Investment
Adviser that the Subadviser has complied with the requirements of Rule 17j-1
during the previous calendar quarter and that there have been no material
violations of the Code of Ethics or, if such a violation has occurred, that
appropriate action, in the judgment of the Subadviser, has been taken in
response to such violation. Upon written request of the Investment Adviser or
the Trust, the Subadviser 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; provided, that any document relating to the reports or summaries
of the reports reflecting legal counsel subject to the attorney-client privilege
is not required to be provided to Investment Adviser.
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(j) will provide to the Investment Adviser a copy of the Subadviser'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 Subadviser represents and warrants that it is a duly
registered investment adviser under the Advisers Act and will notify the
Investment Adviser promptly if any action is brought by any regulatory body
which would reasonably be expected to result in the de-registration of the
Subadviser under the Advisers Act. The Subadviser will provide a list of persons
whom the Subadviser 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 Subadviser's regulatory
obligations, including the preparation and filing of such reports with respect
to the assets of the Portfolio reflecting holdings over which the Subadviser 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 take reasonable action and make reasonable inquiries to
ensure that no employee of the Subadviser who has any material involvement with
the management of the Portfolio 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 regulatory agency or 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 the Advisers 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 from
the Portfolio, the Investment Adviser, the distributor of the Portfolio,
affiliates of the Portfolio (collectively, the "Portfolio Parties"), or the
Portfolio Parties' agents, service providers or sub-contractors 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
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dealing with settlement agents in various countries, and will keep confidential
any information obtained from the Portfolio Parties or the Portfolio Parties'
agents, service providers or sub-contractors 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 Trust and the
Investment Adviser will not (and will take reasonable steps to provide for their
agents, the distributor of the Portfolio and their sub-contractors not to)
disclose or use any records or information with respect to the Subadviser
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 or courts having the requisite
authority.
(n) will provide reasonable assistance to the Investment Adviser, the
Trust, 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 Subadviser hereunder. Specifically, and without limitation to the
foregoing, the Subadviser agrees to provide certifications to the principal
executive and financial officers of the Trust (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
Trust'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 Trust shall reasonably request or in accordance with procedures adopted
by the Trust and provided to the Subadviser in advance in writing.
(o) is, along with its affiliated persons, permitted to enter into
transactions with the other portfolios of the Trust and affiliated persons of
those other portfolios of the Trust (collectively, the "Other Portfolios"). In
doing so, the Subadviser is prohibited from consulting with the Investment
Adviser or the subadvisers 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 Subadviser, 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
Subadviser shall vote proxies on behalf of the Portfolio in a manner deemed by
the Subadviser to be in the best interests of the Portfolio pursuant to the
Subadviser's written Proxy Voting Policies and Procedures. The Subadviser shall
provide disclosure regarding the Proxy Voting Policies and Procedures in
accordance with the requirements of Form N-1A for inclusion in the Trust's
Registration Statement. The Subadviser 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 Subadviser shall certify at least annually or more often as may
reasonably be requested by the Investment Adviser, as to
7
its compliance with its own Proxy Voting Policies and Procedures and applicable
federal statues and regulations.
(q) will provide reasonable assistance to the Trust and the Trust's
Chief Compliance Officer ("CCO") in complying with Rule 38a-1 under the 1940
Act. Specifically, the Subadviser 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 Subadviser's compliance program, which access shall
include on-site visits with the Subadviser 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-1, the Subadviser agrees to
provide certifications as may be reasonably requested by the CCO related to the
design and implementation of the Subadviser's compliance program.
(r) will comply with the Trust's policy on selective disclosure of
portfolio holdings of the Trust (the "Selective Disclosure Policy"), as provided
in writing to the Subadviser and as may be amended from time to time. The
Subadviser agrees to provide a certification with respect to compliance with the
Trust's Selective Disclosure Policy as may be reasonably requested by the Trust
from time to time.
(s) will notify the Investment Adviser promptly in the event that, in
the judgment of the Subadviser, Portfolio share transaction activity becomes
disruptive to the ability of the Subadviser 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 Subadviser hereunder.
(u) will provide such certifications to the Trust as the Trust or the
Investment Adviser may reasonably request related to the services provided by
the Subadviser 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, to the extent that the Subadviser is aware of such 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 Subadviser will provide
relevant trade information and documentation (for example, a schedule of
purchases and sales and/or holdings or trade tickets) for such security.
(w) will provide reasonable assistance to the Investment Adviser with
respect to the annual audit of the Trust's financial statements, including, but
not limited to: (i) providing broker contacts as needed for obtaining trade
confirmations (in particular with respect to
8
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 request for such material
by the Trust's auditors or the Investment Adviser; (iii) providing assistance in
obtaining trade confirmations in the event the Trust or the Trust'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 Trust or the
Trust's independent registered public accounting firm is unable to obtain such
market quotations through independent means.
(x) will, upon request, advise the Investment Adviser (i) if the
Subadviser 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 Subadviser's fee rate is less than the rate charged the Investment Adviser
for management of the Portfolio.
3. DISCLOSURE ABOUT SUBADVISER AND PORTFOLIO. The Subadviser represents
that it has reviewed the current Registration Statement and agrees to promptly
review future amendments to the Registration Statement, including any
supplements thereto, provided in writing to it which relate to the Subadviser 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 Subadviser, including any performance information
the Subadviser 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 Subadviser further agrees to notify the Investment
Adviser and the Trust promptly of any material fact known to the Subadviser
respecting or relating to the Subadviser that is not contained in the
Registration Statement or prospectus for the Trust, or any amendment or
supplement thereto, or of any statement respecting or relating to the Subadviser
contained therein that becomes untrue in any material respect. With respect to
the disclosure respecting the Portfolio, the Subadviser represents and agrees
that the description of the Portfolio's objectives, investment strategies and
risks in the Portfolio's prospectus and SAI (the "Portfolio Description"), as of
the date of this Agreement and as of the date of any Registration Statement or
supplement thereto as provided in writing to Subadviser and upon reasonable
opportunity to comment thereon prior to the filing with the SEC of such
Registration Statements and supplements, is consistent with the manner in which
the Subadviser intends to manage the Portfolio, and the identification of risks
is inclusive of all material risks known to the Subadviser that are expected to
arise in connection with the manner in which the Subadviser intends to manage
the Portfolio. The Subadviser further agrees to notify the Investment Adviser
and the Trust promptly in the event that the Subadviser becomes aware that the
Portfolio Description for a Portfolio is inconsistent in any material respect
with the manner in which the Subadviser is managing the Portfolio, and in the
event that the identified risks are inconsistent in any material respect with
the risks known to the Subadviser that arise in connection with the manner in
which the Subadviser is managing the Portfolio. In addition, the Subadviser
agrees to comply with the
9
Investment Adviser's reasonable request for information regarding the personnel
of the Subadviser who are responsible for the day-to-day management of a
Portfolio's assets.
4. EXPENSES. The Subadviser shall bear all expenses incurred by it and its
staff with respect to all activities in connection with the performance of the
Subadviser's services under this Agreement, including but not limited to
salaries, overhead, travel, preparation of Board materials, review of marketing
materials relating to Subadviser or other information provided by Subadviser to
the Investment Adviser and/or the Trust's distributor, and marketing support.
Subadviser 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 Subadviser 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 Trust by the
Subadviser of such Changes, the Trust is not generating a supplement for other
purposes or the Trust does not wish to add such Changes to a pending supplement.
In the event two or more subadvisers each require a supplement simultaneously,
the expense (other than the costs of printing and mailing) of a combined
supplement will be shared pro rata with such other subadviser(s) based upon the
number of pages required by each such subadviser, and each subadviser shall pay
its pro rata share of printing and mailing costs and expenses based upon the
number of supplements required to be printed and mailed. All other expenses not
specifically assumed by the Subadviser hereunder or by the Investment Adviser
under the Advisory Agreement are borne by the applicable Portfolio of the Trust.
The Trust, the Subadviser 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
Subadviser pursuant to this Agreement, the Investment Adviser will pay to the
Subadviser 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 Subadviser shall not
be responsible for providing money for the initial capitalization of any
Portfolio.
7. COMPLIANCE.
(a) The Subadviser agrees that it shall immediately notify the
Investment Adviser and the Trust (i) in the event that the SEC, CFTC, or any
banking or other regulatory body has censured the Subadviser; 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.
10
(b) The Investment Adviser agrees that it shall immediately notify the
Subadviser (i) in the event that the SEC or any other regulatory body has
censured the Investment Adviser or the Trust; 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 Subadviser 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 Subadviser understands that unless provided
herein or authorized from time to time by the Trust, the Subadviser shall have
no authority to act for or represent the Trust in any way or otherwise be deemed
the Trust'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
Subadviser hereby agrees that all records which it maintains for the Portfolio
are the property of the Trust and further agrees to surrender promptly to the
Trust any of such records upon the Trust's or the Investment Adviser's request,
although the Subadviser may, at its own expense, make and retain a copy of such
records.
10. COOPERATION. Each party to this Agreement agrees to cooperate
reasonably 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 Trust.
11. RESPONSIBILITY AND CONTROL. Notwithstanding any other provision of this
Agreement, it is understood and agreed that the Trust reserves the right to
direct, approve or disapprove any action hereunder taken on its behalf by the
Subadviser, provided, however, that the Subadviser shall not be liable for any
losses to the Trust resulting from the Trust's direction, or from the Trust's
disapproval of any action proposed to be taken by the Subadviser.
12. SERVICES NOT EXCLUSIVE. It is understood that the services of the
Subadviser and its employees are not exclusive, and nothing in this Agreement
shall prevent the Subadviser (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 Trust and the Investment Adviser
agree that the Subadviser, any affiliated person of the Subadviser, and each
person, if any, who, within the meaning of Section 15 of the 1933 Act, controls
the Subadviser, shall not be liable for, or subject to any damages, expenses, or
losses in connection with, any act or omission connected with or
11
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
Subadviser's duties, or by reason of reckless disregard of the Subadviser'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 Trust may have under federal or state securities laws.
14. INDEMNIFICATION.
(a) The Subadviser 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 Subadviser's responsibilities to the Trust
which (i) are based upon any willful misfeasance, bad faith, gross negligence,
or reckless disregard of, the Subadviser's obligations and/or duties under this
Agreement by the Subadviser or by any of its directors, officers or employees,
or any affiliate acting on behalf of the Subadviser (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 Trust 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 Trust, or
any affiliated person of the Trust by the Subadviser or any affiliated person of
the Subadviser (other than a PL Indemnified Person) provided, however, that in
no case is the Subadviser'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
Subadviser, any affiliated person within the meaning of Section 2(a)(3) of the
1940 Act of the Subadviser and each person, if any, who, within the meaning of
Section 15 of the 1933 Act controls ("controlling person") the Subadviser
(collectively, "Subadviser Indemnified Persons") against any and all losses,
claims, damages, liabilities or litigation (including reasonable legal and other
expenses) to which a Subadviser 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 Trust 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 Subadviser 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
Trust or any Portfolio, or any amendment thereof or any supplement thereto, or
the omission or alleged omission to state therein a material
12
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 Trust, or any
affiliated person of the Trust by the Subadviser or any affiliated person of the
Subadviser (other than a PL Indemnified Person) provided however, that in no
case is the Investment Adviser's indemnity in favor of the Subadviser
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 the 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 the 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 Trust, the Investment Adviser, or the Subadviser, 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 Trust at any time with respect to the services provided by
the Subadviser, 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 Trust
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 Subadviser and the Investment Adviser;
(b) by the Subadviser at any time, without the payment of any penalty,
upon sixty (60) days' prior written notice to the Investment Adviser and the
Trust.
(c) by the Investment Adviser at any time, without the payment of any
penalty, upon sixty (60) days' prior written notice to the Subadviser and the
Trust.
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) Subadviser 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) (which
report may not be available until the Trust prepares its Form N-PX), 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
13
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 Subadviser
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 Trust and/or the Portfolio.
Upon termination of this Agreement, the Subadviser shall forthwith cease to use
such names (or abbreviations, derivatives or logos).
(b) It is understood that the names "RiverSource Investments",
"RiverSource", "Columbia Management Advisors", "Columbia Management", "Columbia
Management Investment Advisers" and "Columbia" and any derivative thereof or any
logo associated with those names are the valuable property of the Subadviser and
that the Trust and the Investment Adviser have the right to use such name (or
abbreviations, derivative or logo), in the Trust'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 Subadviser is a Subadviser to the Trust and/or one of the Portfolio,
provided, however, that the Trust may continue to use these names in its
Registration Statement and other documents to the extent deemed necessary by the
Trust to comply with disclosure obligations under applicable law and regulation.
Neither the Trust nor the Investment Adviser shall use these names or
Subadviser's name (if different) or logo in promotional or sales related
materials prepared by or on behalf of the Investment Adviser or the Trust,
without prior review and approval by the Subadviser, which may not be
unreasonably withheld. Upon termination of this Agreement, the Trust 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
Trust is on file with the Secretary of the State of Massachusetts. The
Declaration of Trust has been executed on behalf of the Trust by a Trustee of
the Trust in his capacity as Trustee of the Trust and not individually. The
obligations of this Agreement with respect to the 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 Trust individually, or
upon the Trust generally or upon any other portfolio of the Trust.
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):
14
A. if to the Subadviser, to:
Xxxxxxxxxxx X. Xxxxxxxx
Ameriprise Financial, Inc.
Columbia Management Investment Advisers, LLC
Ameriprise Financial Center
Minneapolis, MN 55474
Facsimile transmission number: 000-000-0000
Attention: Xxxxxxxxxxx X. Petersen
xxxxxxxxxxx.x.xxxxxxxx@xxxx.xxx
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, General Counsel Fund Advisor
C. if to the Trust, 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, General Counsel
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) 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.
(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,
15
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.
16
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/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxx
---------------------------------- -----------------------------------
Name: Xxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxx
Title: EVP & Chief Investment Officer Title: Vice President & Secretary
COLUMBIA MANAGEMENT INVESTMENT
ADVISERS, LLC
By: /s/ Xxx X. Xxxxxxx By:
---------------------------------- -----------------------------------
Name: Xxx X. Xxxxxxx Name:
Title: Senior Vice President Title:
PACIFIC SELECT FUND
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxx
---------------------------------- -----------------------------------
Name: Xxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxx
Title: President Title: Vice President & Secretary
17
EXHIBIT A
PACIFIC SELECT FUND
FEE SCHEDULE
EFFECTIVE: May 1, 2010
PORTFOLIO: TECHNOLOGY PORTFOLIO
The Investment Adviser will pay to the Subadviser a monthly fee for its services
for the above noted Portfolio based on:
The annual percentage of the average daily net assets of the Technology
Portfolio according to the following schedule:
RATE% BREAK POINT (ASSETS)
----- --------------------
0.50% First $100 million
0.475% On next $150 million
0.45% On next$250 million
0.425% On excess
The fees for services shall be prorated for any portion of a year in which the
Agreement is not effective.
SUBADVISORY AGREEMENT
AGREEMENT made effective the 1st day of May, 2010 among XXXXX XXXXX
MANAGEMENT, a Massachusetts Business Trust ("Subadviser"), PACIFIC LIFE FUND
ADVISORS LLC, a Delaware Limited Liability Company ("Investment Adviser"), and
PACIFIC SELECT FUND, a Massachusetts Business Trust (the "Trust").
WHEREAS, the Trust 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 Subadviser is registered with the SEC as an investment adviser
under the Advisers Act;
WHEREAS, the Trust has retained the Investment Adviser to render investment
advisory services to the various portfolios of the Trust pursuant to an Advisory
Agreement, as amended, and such Agreement authorizes the Investment Adviser to
engage a subadviser to discharge the Investment Adviser's responsibilities with
respect to the investment management of such portfolios;
WHEREAS, the Trust and the Investment Adviser desire to retain the
Subadviser to furnish investment advisory services to one or more portfolios of
the Trust, and the Subadviser 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 Trust, the Investment Adviser, and the
Subadviser as follows:
1. APPOINTMENT. The Trust and the Investment Adviser hereby appoint
Subadviser to act as subadviser to provide investment advisory services to the
portfolios of the Trust listed on Exhibit A attached hereto (individually, a
"Portfolio" and together, the "Portfolios") for the periods and on the terms set
forth in this Agreement. The Subadviser 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 Subadviser to
render investment advisory services to one or more portfolios of the Trust other
than the Portfolio, the Investment Adviser shall notify the Subadviser in
writing and shall revise Exhibit A to reflect such additional portfolio(s). If
the Subadviser is willing to render such services, it shall notify the Trust and
the Investment Adviser in writing, whereupon such portfolio shall become a
Portfolio hereunder, and be subject to this Agreement.
2. SUBADVISER DUTIES. Subject to the supervision of the Trust's Board of
Trustees (the "Board") and the Investment Adviser, the Subadviser will provide a
continuous investment program for the Portfolio and determine the composition of
the assets of the Portfolio. The
Subadviser will provide investment research and analysis, which may include
computerized investment methodology, and will conduct a continuous program of
evaluation, investment, purchases and/or sales, and reinvestment of the
Portfolio's assets by determining the securities, cash and other investments,
including, but not limited to, futures, options contracts, swaps and other
derivative instruments, if any and to the extent permitted in the Portfolio's
registration statement, 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
Subadviser 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 Subadviser 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 Subadviser is authorized to and shall exercise tender offers, exchange
offers and vote proxies on behalf of the Portfolio, each as the Subadviser
determines is in the best interest of the Portfolio in accordance with the
Subadviser's proxy voting policy. The Subadviser is authorized, on behalf of the
Portfolio, to open brokerage accounts in accordance with Trust procedures. The
Subadviser is authorized, on behalf of the Portfolio, 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 Trust procedures.
In performing these duties, the Subadviser:
(a) will conform with (1) the applicable sections of 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 Trust, to the Investment Adviser (as
provided to the Subadviser by the Investment Adviser), or to the Subadviser);
(2) applicable rules and regulations under the Securities Exchange Act of 1934,
as amended (the "1934 Act"); (3) any applicable written procedures, policies and
guidelines adopted by the Board and furnished to the Subadviser; (4) the Trust's
objectives, investment policies and investment restrictions as stated in the
Trust's Prospectus and Statement of Additional Information as supplemented or
amended from time to time, as furnished to the Subadviser; (5) the provisions of
the Trust'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") as furnished to the Subadviser; (6)
Section 851(b)(2) and (3) of Subchapter M of the Internal Revenue Code of 1986,
as amended (the "Code"); (7) any other applicable laws and regulations,
including without limitation, proxy voting regulations; and (8) the provisions
of Section 817(h) of the Code, applicable to the Portfolio; and (9) all other
applicable federal and state laws and regulations pertaining to investment
vehicles underlying variable annuity and/or variable life insurance contracts.
To the extent that the Subadviser 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
Subadviser shall designate to the Trust's Custodian those assets to be
segregated in accordance with the 1940 Act, if necessary, based upon trading
strategies and positions the Subadviser employs on behalf of the Portfolio, as
well as to segregate assets, if necessary, in accordance with the 1934 Act and
any
2
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 Subadviser, the Subadviser shall be fully
protected in relying on the Trust's Registration Statement previously furnished
by the Investment Adviser to the Subadviser and the Subadviser shall not have
any liability resulting from Investment Adviser's failure to deliver documents
pursuant to this section. In managing the Portfolio in accordance with the
requirements of this Section 2, the Subadviser shall be entitled to receive and
act upon advice of counsel to the Trust, to the Investment Adviser or to the
Subadviser that is also acceptable to the Investment Adviser.
(b) intentionally omitted.
(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 Subadviser'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 Trust, as they
may be amended or supplemented from time to time and furnished to the
Subadviser. 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 Subadviser 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 Subadviser 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 Subadviser'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 Subadviser is further authorized to
place orders on behalf of the Portfolio through the Subadviser if the Subadviser
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 Subadviser. Such allocation shall be in such amounts and
proportions as the Subadviser shall determine consistent with the above
standards, and, upon request, the Subadviser 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 Subadviser is
authorized to open brokerage accounts on behalf of the Portfolio in accordance
with Trust procedures. The Subadviser 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 and the Investment Adviser shall not
disclose data related to the sales of shares of the Portfolio or the Trust with
the Subadviser and its affiliates.
3
(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 Subadviser. 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 Subadviser in a manner that is fair and equitable and consistent
with the Subadviser'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 Trust, on a daily
basis, such confirmation(s), trade tickets, and other documents and information,
including, but not limited to, any information needed to book the trade, funding
memos, credit agreements, 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 Trust's custodian and
recordkeeping agent, and, if required, the Investment Adviser. The Subadviser
will make best efforts to comply with such rules, procedures and time frames as
the Trust'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 Trust's custodian.
(f) will provide reasonable assistance to the Investment Adviser,
custodian or recordkeeping agent for the Trust in determining or confirming,
consistent with the procedures and policies stated in the Trust'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 Subadviser or
identifies for review by the Subadviser. 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 Subadviser 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
Trust's procedures; (iii) applying to the Portfolio's assets the procedures of
the Subadviser used for valuing the assets held by other accounts under
management of the Subadviser 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
4
providing fair valuations or recommendations for fair valuations in accordance
with the Trust'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 Trust upon request. Such
records shall be deemed to be Trust records.
(g) will maintain and preserve such records related to the Portfolio's
transactions as required under the 1940 Act and the Advisers Act. The Subadviser
will make available to the Trust and the Investment Adviser promptly upon
request, any of the Portfolio's investment records and ledgers maintained by the
Subadviser (which shall not include the records and ledgers maintained by the
custodian and recordkeeping agent for the Trust), as are necessary to assist the
Trust 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 Trust 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 the Portfolio, a quarterly compliance checklist, reports regarding compliance
with the Trust's procedures pursuant to Rules 17e-1, 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 Trusts, and
compliance with the Subadviser'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-1 under the 1940 Act and Rule 204A-1 under the Advisers
Act and will provide the Investment Adviser and the Trust 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 or the president or other appropriate senior officer
(as the Investment Adviser determines appropriate) of the Subadviser shall
certify to the Investment Adviser that the Subadviser has complied with the
requirements of Rule 17j-1 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 Trust, the
Subadviser shall provide to representatives of the Investment Adviser and the
Trust the reports (or redacted summaries of the reports) regarding a material or
non-material violation 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 Subadviser'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 Subadviser represents and warrants
5
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 Subadviser will
provide a list of persons whom the Subadviser 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 Subadviser's regulatory
obligations, including the preparation and filing of such reports with respect
to the assets of the Portfolio reflecting holdings over which the Subadviser 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) (i) will not permit any employee of the Subadviser to have any
material involvement with the management of the Portfolio if, to the best of the
Subadviser's knowledge, such employee has:
(A) been, within the last ten (10) years, convicted of or
acknowledged commission of any felony or misdemeanor (1) involving the purchase
or sale of any security, or (2) arising out of such person's conduct as an
underwriter, broker, dealer, investment adviser, municipal securities dealer,
government securities broker, government securities dealer, bank, transfer
agent, credit rating agency, 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;
(B) 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, bank, transfer agent, credit rating agency, 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; and
(ii) will advise Investment Adviser in writing upon discovery of
any employee of the Subadviser that has material involvement with the management
of the Portfolio if such employee has been, within the last ten (10) years,
convicted of or acknowledged commission of any felony or misdemeanor (A)
involving embezzlement, fraudulent conversion, or misappropriation of funds or
securities, or (B) involving sections 1341, 1342 or 1343 of Title 18 of the U.S.
Code.
(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
6
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 Trust and the Investment Adviser
will not disclose or use any records or information with respect to the
Subadviser 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 Subadviser 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 Trust, 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 Subadviser
hereunder. Specifically, and without limitation to the foregoing, the Subadviser
agrees to provide sub-certifications to the principal executive and financial
officers of the Trust (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 Trust'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 Trust shall
reasonably request or in accordance with procedures adopted by the Trust.
(o) is, along with its affiliated persons, permitted to enter into
transactions with the other portfolios of the Trust and affiliated persons of
those other portfolios of the Trust (collectively, the "Other Portfolios"). In
doing so, the Subadviser is prohibited from consulting with the Investment
Adviser or the subadvisers 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 Subadviser, 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
Subadviser shall vote proxies on behalf of the Portfolio in a manner deemed by
the Subadviser to be in the best interests of the Portfolio pursuant to the
Subadviser's written Proxy Voting Policies and Procedures. The Subadviser 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 Subadviser 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 Subadviser 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 statutes and regulations.
(q) will provide reasonable assistance to the Trust and the Trust's
Chief Compliance Officer ("CCO") in complying with Rule 38a-1 under the 1940
Act. Specifically, the Subadviser represents and warrants that it shall maintain
a compliance program in
7
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
Subadviser's compliance program, which access shall include on-site visits with
the Subadviser 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-1, the Subadviser agrees to provide certifications as may
be reasonably requested by the CCO related to the design and implementation of
the Subadviser's compliance program.
(r) will comply with the Trust's policy on selective disclosure of
portfolio holdings of the Trust (the "Selective Disclosure Policy"), as provided
in writing from time to time to the Subadviser and as may be amended from time
to time and provided to Subadviser. The Subadviser agrees to provide a
certification with respect to compliance with the Trust's Selective Disclosure
Policy as may be reasonably requested by the Trust from time to time.
(s) will notify the Investment Adviser promptly in the event that, in
the judgment of the Subadviser, Portfolio share transaction activity becomes
disruptive to the ability of the Subadviser 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 Subadviser hereunder.
(u) will provide such certifications to the Trust as the Trust or the
Investment Adviser may reasonably request related to the services provided by
the Subadviser hereunder, including (but not limited to) certifications of
compliance with Trust procedures, the Registration Statement, and applicable
securities regulations.
(v) will promptly inform the Investment Adviser of any class action
litigation received by the Subadviser and 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 Subadviser
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 Trust'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 Trust or the
Trust'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 Trust or the Trust's independent
8
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
Subadviser acts as subadviser to another U.S. registered mutual fund that
follows the same investment strategy as the Portfolio (as reasonably determined
by the Subadviser) to which the Subadviser provides investment advisory services
and (ii) if so, whether the Subadviser's fee rate is less than the rate charged
the Investment Adviser for management of the Portfolio.
(y) will, for the duration of this Agreement, not actively solicit or
induce any personnel of Investment Adviser or its affiliated companies that
provide services to the Portfolio 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, Subadviser shall be free
to directly or indirectly employ or retain such personnel in any capacity.
3. DISCLOSURE ABOUT SUBADVISER AND PORTFOLIO. The Subadviser represents
that it has reviewed the current Registration Statement and agrees to promptly
review future amendments to the Registration Statement, including any
supplements thereto, furnished to the Subadviser which relate to the Subadviser
or the Portfolio, and represents and warrants that, solely with respect to the
disclosure respecting or relating to the Subadviser, 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 Subadviser further agrees to notify the Investment
Adviser and the Trust immediately of any material fact about the Subadviser,
known to the Subadviser respecting or relating to the Subadviser, that is not
contained in the Registration Statement or prospectus for the Trust, or any
amendment or supplement thereto, but which is required to be pursuant to Form
N-1A, or of any statement respecting or relating to the Subadviser contained
therein that becomes untrue in any material respect. With respect to the
disclosure respecting the Portfolio, the Subadviser represents and agrees that
the description in the Trust'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 Subadviser intends to manage
the Portfolio, and has identified the material risks known to Subadviser that
are expected to arise in connection with the manner in which the Subadviser
intends to manage the Portfolio. The Subadviser further agrees to notify the
Investment Adviser and the Trust promptly in the event that the Subadviser
becomes aware that the Portfolio Description for a Portfolio is inconsistent in
any material respect with the manner in which the Subadviser is managing the
Portfolio, and in the event that the identified risks are inconsistent in any
material respect with the risks known to the Subadviser that arise in connection
with the manner in which the Subadviser is managing the Portfolio. In addition,
the Subadviser agrees to comply with the Investment Adviser's reasonable request
for information to be included in the Registration Statement regarding the
personnel of the Subadviser who are responsible for the day-to-day management of
a Portfolio's assets.
4. EXPENSES. The Subadviser shall bear all expenses incurred by it and its
staff with respect to all activities in connection with the performance of the
Subadviser's services under
9
this Agreement, including but not limited to salaries, overhead, travel,
preparation of Board materials, review of marketing materials relating to
Subadviser or other information provided by Subadviser to the Investment Adviser
and/or the Trust's Distributor, and marketing support. Subadviser 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 Subadviser 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 Trust by the Subadviser of such Changes, the Trust is not
generating a supplement for other purposes or the Trust does not wish to add
such Changes to a pending supplement. In the event two or more subadvisers each
require a supplement simultaneously, the expense of each supplement will be
shared pro rata with such other subadviser(s) based upon the number of pages
required by each such subadviser. All other expenses not specifically assumed by
the Subadviser hereunder or by the Investment Adviser under the Advisory
Agreement are borne by the applicable Portfolio of the Trust. The Trust, the
Subadviser 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
Subadviser pursuant to this Agreement, the Investment Adviser will pay to the
Subadviser 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 Subadviser shall not
be responsible for providing money for the initial capitalization of any
Portfolio.
7. COMPLIANCE.
(a) The Subadviser agrees that it shall immediately notify the
Investment Adviser and the Trust (i) in the event that the SEC, CFTC, or any
banking or other regulatory body has publicly censured the Subadviser; 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; (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 Subadviser further agrees to notify the Investment
Adviser and Trust immediately of any material fact known to the Subadviser
respecting or relating to the Subadviser that is not contained in the
Registration Statement, or any amendment or supplement thereto, or of any
material statement relating to the Subadviser contained therein that becomes
untrue in any material respect.
(b) The Investment Adviser agrees that it shall immediately notify the
Subadviser (i) in the event that the SEC has censured the Investment Adviser or
the Trust; placed limitations upon either of their activities, functions, or
operations; suspended or revoked the
10
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 Subadviser 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 Subadviser understands that unless provided
herein or authorized from time to time by the Trust, the Subadviser shall have
no authority to act for or represent the Trust in any way or otherwise be deemed
the Trust'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
Subadviser hereby agrees that all records which it maintains for the Portfolio
are the property of the Trust and further agrees to surrender promptly to the
Trust any of such records upon the Trust's or the Investment Adviser's request,
although the Subadviser 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 Trust.
11. RESPONSIBILITY AND CONTROL. Notwithstanding any other provision of this
Agreement, it is understood and agreed that the Trust reserves the right to
direct, approve or disapprove any action hereunder taken on its behalf by the
Subadviser, provided, however, that the Subadviser shall not be liable for any
losses to the Trust resulting from the Trust's direction, or from the Trust's
disapproval of any action proposed to be taken by the Subadviser.
12. SERVICES NOT EXCLUSIVE. It is understood that the services of the
Subadviser and its employees are not exclusive, and nothing in this Agreement
shall prevent the Subadviser (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. It is understood that the
Subadviser may give advice or take action for its other clients which may differ
from advice given, or the timing or nature of action taken, for the Portfolio.
13. LIABILITY. Except as may otherwise be required by the 1940 Act or the
rules thereunder or other applicable law, the Trust and the Investment Adviser
agree that the Subadviser, any affiliated person of the Subadviser, and each
person, if any, who, within the meaning of Section 15 of the 1933 Act, controls
the Subadviser, 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
11
misfeasance, bad faith, or gross negligence in the performance of the
Subadviser's duties, or by reason of reckless disregard of the Subadviser'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 Trust may have under federal or state securities laws.
14. INDEMNIFICATION.
(a) The Subadviser 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 Subadviser's responsibilities to the Trust
which (i) are based upon any willful misfeasance, bad faith, gross negligence,
or reckless disregard of, the Subadviser's obligations and/or duties under this
Agreement by the Subadviser or by any of its directors, officers or employees,
or any affiliate acting on behalf of the Subadviser (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 Trust 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 Trust, or
any affiliated person of the Trust by the Subadviser or any affiliated person of
the Subadviser (other than a PL Indemnified Person) provided, however, that in
no case is the Subadviser'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
Subadviser, any affiliated person within the meaning of Section 2(a)(3) of the
1940 Act of the Subadviser and each person, if any, who, within the meaning of
Section 15 of the 1933 Act controls ("controlling person") the Subadviser
(collectively, "Subadviser Indemnified Persons") against any and all losses,
claims, damages, liabilities or litigation (including reasonable legal and other
expenses) to which a Subadviser 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 Trust 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 Subadviser 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
Trust 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,
12
unless such a statement or omission was made in reliance upon information
furnished in writing to the Investment Adviser, the Trust, or any affiliated
person of the Trust by the Subadviser or any affiliated person of the Subadviser
(other than a PL Indemnified Person) provided however, that in no case is the
Investment Adviser's indemnity in favor of the Subadviser 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 the 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 the 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 Trust, the Investment Adviser, or the Subadviser, 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 Trust at any time with respect to the services provided by
the Subadviser, without the payment of any penalty, upon sixty (60) days' prior
written notice to the Subadviser and the Investment Adviser, by vote of a
majority of the Board or by a vote of a majority of the outstanding voting
shares of the Trust 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 Subadviser and the Investment Adviser;
(b) by the Subadviser at any time, without the payment of any penalty,
upon sixty (60) days' prior written notice to the Investment Adviser and the
Trust.
(c) by the Investment Adviser at any time, without the payment of any
penalty, upon sixty (60) days' prior written notice to the Subadviser and the
Trust.
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) Subadviser 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) within 30
business days of termination and pursuant to paragraph 2(q) as soon as
reasonably practicable; 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
13
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 Subadviser
shall not use such names (or abbreviations, derivatives or logos) without the
prior written approval of the Investment Adviser, which may not be unreasonably
withheld, and only so long as the Investment Adviser is an investment adviser to
the Trust and/or the Portfolio, provided, however, that the Subadviser may use
such name (or derivative or logo), in filings, forms or reports required under
applicable state or federal securities, insurance, or other law. Upon
termination of this Agreement, the Subadviser shall forthwith cease to use such
names (or abbreviations, derivatives or logos) to the extent that continued use
is not required by applicable laws, rules or regulations.
(b) It is understood that the name "Xxxxx Xxxxx Management" and any
derivative thereof or any logo associated with that name is the valuable
property of the Subadviser and that the Trust and the Investment Adviser have
the right to use such name (or derivative or logo), in the Trust'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 Subadviser is a Subadviser to the Trust and/or one of the Portfolio,
provided, however, that the Trust may continue to use the name of the Subadviser
in its Registration Statement and other documents to the extent deemed necessary
by the Trust to comply with disclosure obligations under applicable law and
regulation. Neither the Trust nor the Investment Adviser shall use the
Subadviser's name or logo in promotional or sales related materials prepared by
or on behalf of the Investment Adviser or the Trust, without prior review and
written approval by the Subadviser, which may not be unreasonably withheld. Upon
termination of this Agreement, the Trust and the Investment Adviser shall
forthwith cease to use such names (and logo), except as provided for herein.
17. LIMITATION OF LIABILITY.
(a) A copy of the Declaration of Trust for the Trust is on file with
the Secretary of the State of Massachusetts. The Declaration of Trust has been
executed on behalf of the Trust by a Trustee of the Trust in his capacity as
Trustee of the Trust and not individually. The obligations of this Agreement
with respect to the 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 Trust individually, or upon the Trust generally or upon any other
portfolio of the Trust.
(b) The Trust and the Investment Adviser are hereby expressly put on
notice that the Subadviser is a Massachusetts business trust formed under a
declaration of trust. All persons dealing with Subadviser must look solely to
the property of the Subadviser for satisfaction of claims of any nature against
the Subadviser, as neither the trustees, officers, employees nor shareholders of
the Subadviser assume any personal liability in connection with its business or
for obligations entered into on its behalf.
18. NOTICES. All notices and other communications hereunder shall be in
writing sent by facsimile or email 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
14
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 Subadviser, to:
Xxxxx Xxxxx Management
Two International Place
Boston, MA 02110
Facsimile transmission number: (000) 000-0000
Attention: Legal Department
with a copy to:
Xxxxx Xxxxx Management
Two International Place
Boston, MA 02110
Facsimile transmission number: (000) 000-0000
Attention: Xxxx Xxxxx
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, General Counsel Fund Advisor
C. if to the Trust, 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, General Counsel
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.
15
(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.
(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/ Xxxx Xxx Xxxxx By: /s/ Xxxxxx X. Xxxxx
----------------------------------- ----------------------------------
Name: Xxxx Xxx Xxxxx Name: Xxxxxx X. Xxxxx
Title: Executive Vice President Title: VP & Secretary
XXXXX XXXXX MANAGEMENT
By: /s/ Xxxxxxx Xxxxx By:
---------------------------------- ----------------------------------
Name: Xxxxxxx Xxxxx Name:
Title: Vice President Title:
PACIFIC SELECT FUND
By: /s/ Xxxx Xxx Xxxxx By: /s/ Xxxxxx X. Xxxxx
----------------------------------- ----------------------------------
Name: Xxxx Xxx Xxxxx Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer Title: VP & Secretary
16
EXHIBIT A
PACIFIC SELECT FUND
FEE SCHEDULE
EFFECTIVE: May 1, 2010
PORTFOLIO: FLOATING RATE LOAN PORTFOLIO
The Investment Adviser will pay to the Subadviser 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
Floating Rate Loan Portfolio and the PL Floating Rate Loan Fund of Pacific
Life Funds according to the following schedule:
RATE% BREAK POINT (ASSETS)
----- --------------------
0.30% None
(b) The ratio of the Floating Rate Loan Portfolio's average daily net
assets over the combined assets of the Floating Rate Loan Portfolio and the
PL Floating Rate Loan Fund .
Fees for services shall be prorated for any portion of a year in which the
Agreement is not effective.
SUBADVISORY AGREEMENT
AGREEMENT made effective on the Effective Date, as defined below, among
INVESCO ADVISERS, INC. a DELAWARE CORPORATION ("Subadviser"), a wholly-owned
subsidiary of Invesco, Ltd., PACIFIC LIFE FUND ADVISORS LLC, a Delaware Limited
Liability Company ("Investment Adviser"), and PACIFIC SELECT FUND, a
Massachusetts Business Trust (the "Trust"). The Effective Date shall be the
closing date of the transaction between Invesco Ltd. and Xxxxxx Xxxxxxx
Investment Management, Inc. ("Xxxxxx Xxxxxxx"), doing business as Xxx Xxxxxx
("Xxx Xxxxxx"), whereby Xxxxxx Xxxxxxx agreed to sell the Xxx Xxxxxx asset
management business and portions of Xxxxxx Xxxxxxx'x related businesses to
Invesco Ltd.
WHEREAS, the Trust 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 Subadviser is registered with the SEC as an investment adviser
under the Advisers Act;
WHEREAS, the Trust has retained the Investment Adviser to render investment
advisory services to the various portfolios of the Trust pursuant to an Advisory
Agreement, as amended, and such Agreement authorizes the Investment Adviser to
engage a subadviser to discharge the Investment Adviser's responsibilities with
respect to the investment management of such portfolios;
WHEREAS, the Trust and the Investment Adviser desire to retain the
Subadviser to furnish investment advisory services to one or more portfolios of
the Trust, and the Subadviser 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 Trust, the Investment Adviser, and the
Subadviser as follows:
1. APPOINTMENT. The Trust and the Investment Adviser hereby appoint
Subadviser to act as subadviser to provide investment advisory services to the
portfolios of the Trust listed on Exhibit A attached hereto (individually, a
"Portfolio" and together, the "Portfolios") for the periods and on the terms set
forth in this Agreement. The Subadviser 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 Subadviser to
render investment advisory services to one or more portfolios of the Trust other
than the Portfolio, the Investment Adviser shall notify the Subadviser in
writing and shall revise Exhibit A to reflect such additional portfolio(s). If
the Subadviser is willing to render such services, it shall notify the Trust and
the Investment Adviser in writing, whereupon such portfolio shall become a
Portfolio hereunder, and be subject to this Agreement.
2. SUBADVISER DUTIES. Subject to the supervision of the Trust's Board of
Trustees (the "Board") and the Investment Adviser, the Subadviser will provide a
continuous investment program for the Portfolio and determine the composition of
the assets of the Portfolio. The Subadviser will provide investment research and
analysis, which may include computerized investment methodology, and will
conduct a continuous program of evaluation, investment, purchases and/or sales,
and reinvestment of the Portfolio's assets by determining the securities, cash
and other investments, including, but not limited to, futures, options
contracts, swaps and other derivative instruments, if any and to the extent
permitted in the Portfolio's registration statement, 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 Subadviser 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 Subadviser 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 Subadviser is authorized to and shall exercise
tender offers, exchange offers and vote proxies on behalf of the Portfolio, each
as the Subadviser determines is in the best interest of the Portfolio in
accordance with the Subadviser's proxy voting policy. The Subadviser is
authorized, on behalf of the Portfolio, to open brokerage accounts in accordance
with Trust procedures. The Subadviser is authorized, on behalf of the Portfolio,
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 Trust procedures.
In performing these duties, the Subadviser:
(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 Trust, to the Investment Adviser (as provided to the
Subadviser by the Investment Adviser), or to the Subadviser); (2) applicable
rules and regulations under the Securities Exchange Act of 1934, as amended (the
"1934 Act"); (3) any applicable written procedures, policies and guidelines
adopted by the Board and furnished to the Subadviser; (4) the Trust's
objectives, investment policies and investment restrictions as stated in the
Trust's Prospectus and Statement of Additional Information as supplemented or
amended from time to time, as furnished to the Subadviser; (5) the provisions of
the Trust'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"); (6) Section 851(b)(2) and (3) of
Subchapter M of the Internal Revenue Code of 1986, as amended (the "Code"); (7)
any other applicable laws and regulations, including without limitation, proxy
voting regulations; and (8) the provisions of Section 817(h) of the Code,
applicable to the Portfolio; and (9) all other applicable federal and state laws
and regulations pertaining to investment vehicles underlying variable annuity
and/or variable life insurance contracts. To the extent that the Subadviser
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 Subadviser shall designate to the Trust's
Custodian those assets to
2
be segregated in accordance with the 1940 Act, if necessary, based upon trading
strategies and positions the Subadviser 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 Subadviser, the Subadviser shall be fully
protected in relying on the Trust's Registration Statement previously furnished
by the Investment Adviser to the Subadviser. In managing the Portfolio in
accordance with the requirements of this Section 2, the Subadviser shall be
entitled to receive and act upon advice of counsel to the Trust, to the
Investment Adviser or to the Subadviser 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 and futures commission merchant ("FCM")
selection, and for negotiation of commission rates. The Subadviser'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 Trust, as they
may be amended or supplemented from time to time and furnished to the
Subadviser. 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 Subadviser 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 Subadviser 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 Subadviser'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 Subadviser is further authorized to
place orders on behalf of the Portfolio through the Subadviser if the Subadviser
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 Subadviser. Such allocation shall be in such amounts and
proportions as the Subadviser shall determine consistent with the above
standards, and, upon request, the Subadviser 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 Subadviser is
authorized to open brokerage accounts on behalf of the Portfolio in accordance
with Trust procedures. The Subadviser shall not direct brokerage to any
broker-dealer in recognition of, or otherwise take into account in making
brokerage
3
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 Subadviser. 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 Subadviser in a manner that is fair and equitable and consistent
with the Subadviser'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 Trust, 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 Trust's custodian and
recordkeeping agent, and, if required, the Investment Adviser. The Subadviser
agrees to comply with such rules, procedures and time frames as the Trust'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 Trust's custodian.
(f) will provide reasonable assistance to the Investment Adviser,
custodian or recordkeeping agent for the Trust in determining or confirming,
consistent with the procedures and policies stated in the Trust'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 Subadviser or
identifies for review by the Subadviser. 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 Subadviser 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
Trust's procedures; (iii) applying to the Portfolio's assets the procedures of
the Subadviser used for valuing the assets held by other accounts under
management of the Subadviser 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
4
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 Trust'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 Trust upon request. Such records shall be deemed to be
Trust records, provided, that the parties understand that although the
Subadviser will provide assistance with valuation of the Portfolio's assets, the
Subadviser shall not be responsible for the Trust's valuation decisions.
(g) will maintain and preserve such records related to the Portfolio's
transactions as required under the 1940 Act and the Advisers Act. The Subadviser
will make available to the Trust and the Investment Adviser promptly upon
request, any of the Portfolio's investment records and ledgers maintained by the
Subadviser (which shall not include the records and ledgers maintained by the
custodian and recordkeeping agent for the Trust), as are necessary to assist the
Trust 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 Trust 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 the Portfolio, a quarterly compliance checklist, reports regarding compliance
with the Trust's procedures pursuant to Rules 17e-1, 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 Trusts, and
compliance with the Subadviser'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-1 under the 1940 Act and Rule 204A-1 under the Advisers
Act and will provide the Investment Adviser and the Trust 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
president or a vice president the chief compliance officer and/or president
and/or managing director (as the Investment Adviser determines appropriate) of
the Subadviser shall certify to the Investment Adviser that the Subadviser has
complied with the requirements of Rule 17j-1 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 Trust, the
Subadviser 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.
5
(j) will provide to the Investment Adviser a copy of the Subadviser'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 Subadviser 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 Subadviser will provide a list of
persons whom the Subadviser 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 Subadviser's regulatory
obligations, including the preparation and filing of such reports with respect
to the assets of the Portfolio reflecting holdings over which the Subadviser 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 Subadviser 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
6
regulatory authorities having the requisite authority. The Trust and the
Investment Adviser will not disclose or use any records or information with
respect to the Subadviser 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 Trust, 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 Subadviser
hereunder. Specifically, and without limitation to the foregoing, the Subadviser
agrees to provide certifications to the principal executive and financial
officers of the Trust (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 Trust'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 Trust shall
reasonably request or in accordance with procedures adopted by the Trust.
(o) is, along with its affiliated persons, permitted to enter into
transactions with the other portfolios of the Trust and affiliated persons of
those other portfolios of the Trust (collectively, the "Other Portfolios"). In
doing so, the Subadviser is prohibited from consulting with the Investment
Adviser or the subadvisers 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 Subadviser, 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
Subadviser shall vote proxies on behalf of the Portfolio in a manner deemed by
the Subadviser to be in the best interests of the Portfolio pursuant to the
Subadviser's written Proxy Voting Policies and Procedures. The Subadviser 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 Subadviser 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 Subadviser 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 Trust and the Trust's
Chief Compliance Officer ("CCO") in complying with Rule 38a-1 under the 1940
Act. Specifically, the Subadviser 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 Subadviser's compliance program, which access shall
include on-site visits with the Subadviser as may be reasonably requested
7
from time to time. In connection with the periodic review and annual report
required to be prepared by the CCO pursuant to Rule 38a-1, the Subadviser agrees
to provide certifications as may be reasonably requested by the CCO related to
the design and implementation of the Subadviser's compliance program.
(r) will comply with the Trust's policy on selective disclosure of
portfolio holdings of the Trust (the "Selective Disclosure Policy"), as provided
in writing to the Subadviser and as may be amended from time to time. The
Subadviser agrees to provide a certification with respect to compliance with the
Trust's Selective Disclosure Policy as may be reasonably requested by the Trust
from time to time.
(s) will notify the Investment Adviser promptly in the event that, in
the judgment of the Subadviser, Portfolio share transaction activity becomes
disruptive to the ability of the Subadviser 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 Subadviser hereunder.
(u) will provide such certifications to the Trust as the Trust or the
Investment Adviser may reasonably request related to the services provided by
the Subadviser 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 Subadviser
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 Trust'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 Trust or the
Trust'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 Trust or the Trust's independent registered public accounting firm is unable
to obtain such market quotations through independent means.
8
(x) will, on an annual basis, advise the Investment Adviser (i) if the
Subadviser 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 Subadviser's fee rate 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, Subadviser shall be free to
directly or indirectly employ or retain such personnel in any capacity, so long
as Subadviser did not solicit or induce such personnel to leave the employ of
Investment Adviser or its affiliate.
3. DISCLOSURE ABOUT SUBADVISER AND PORTFOLIO. The Subadviser 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 Subadviser 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 Subadviser, including any performance information the Subadviser 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
Subadviser further agrees to notify the Investment Adviser and the Trust
immediately of any material fact about the Subadviser, known to the Subadviser
respecting or relating to the Subadviser, that is not contained in the
Registration Statement or prospectus for the Trust, or any amendment or
supplement thereto, or of any statement respecting or relating to the Subadviser
contained therein that becomes untrue in any material respect. With respect to
the disclosure respecting the Portfolio, the Subadviser represents and agrees
that the description in the Trust'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 Subadviser intends to manage
the Portfolio, and the identification of risks is inclusive of all material
risks known to the Subadviser that are expected to arise in connection with the
manner in which the Subadviser intends to manage the Portfolio. The Subadviser
further agrees to notify the Investment Adviser and the Trust promptly in the
event that the Subadviser becomes aware that the Portfolio Description for a
Portfolio is inconsistent in any material respect with the manner in which the
Subadviser is managing the Portfolio, and in the event that the identified risks
are inconsistent in any material respect with the risks known to the Subadviser
that arise in connection with the manner in which the Subadviser is managing the
Portfolio. In addition, the Subadviser agrees to comply with the Investment
Adviser's reasonable request for information regarding the personnel of the
Subadviser who are responsible for the day-to-day management of a Portfolio's
assets.
4. EXPENSES. The Subadviser shall bear all expenses incurred by it and its
staff with respect to all activities in connection with the performance of the
Subadviser's services under this Agreement, including but not limited to
salaries, overhead, travel, preparation of Board materials, review of marketing
materials relating to Subadviser or other information provided by
9
Subadviser to the Investment Adviser and/or the Trust's Distributor, and
marketing support. Subadviser 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
Subadviser 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
Trust by the Subadviser of such Changes, the Trust is not generating a
supplement for other purposes or the Trust does not wish to add such Changes to
a pending supplement. In the event two or more subadvisers each require a
supplement simultaneously, the expense of each supplement will be shared pro
rata with such other subadviser(s) based upon the number of pages required by
each such subadviser. All other expenses not specifically assumed by the
Subadviser hereunder or by the Investment Adviser under the Advisory Agreement
are borne by the applicable Portfolio of the Trust. The Trust, the Subadviser
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
Subadviser pursuant to this Agreement, the Investment Adviser will pay to the
Subadviser 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 Subadviser shall not
be responsible for providing money for the initial capitalization of any
Portfolio.
7. COMPLIANCE.
(a) The Subadviser agrees that it shall immediately notify the
Investment Adviser and the Trust (i) in the event that the SEC, CFTC, or any
banking or other regulatory body has censured the Subadviser; 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 Subadviser further agrees to notify the Investment
Adviser and Trust immediately of any material fact known to the Subadviser
respecting or relating to the Subadviser 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
Subadviser (i) in the event that the SEC has censured the Investment Adviser or
the Trust; 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
10
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 Subadviser 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 Subadviser understands that unless provided
herein or authorized from time to time by the Trust, the Subadviser shall have
no authority to act for or represent the Trust in any way or otherwise be deemed
the Trust'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
Subadviser hereby agrees that all records which it maintains for the Portfolio
are the property of the Trust and further agrees to surrender promptly to the
Trust any of such records upon the Trust's or the Investment Adviser's request,
although the Subadviser 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 Trust.
11. RESPONSIBILITY AND CONTROL. Notwithstanding any other provision of this
Agreement, it is understood and agreed that the Trust reserves the right to
direct, approve or disapprove any action hereunder taken on its behalf by the
Subadviser, provided, however, that the Subadviser shall not be liable for any
losses to the Trust resulting from the Trust's direction, or from the Trust's
disapproval of any action proposed to be taken by the Subadviser.
12. SERVICES NOT EXCLUSIVE. It is understood that the services of the
Subadviser and its employees are not exclusive, and nothing in this Agreement
shall prevent the Subadviser (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 Trust and the Investment Adviser
agree that the Subadviser, any affiliated person of the Subadviser, and each
person, if any, who, within the meaning of Section 15 of the 1933 Act, controls
the Subadviser, 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
Subadviser's duties, or by reason of reckless disregard of the Subadviser'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 Trust may have under federal or state securities laws.
11
14. INDEMNIFICATION.
(a) The Subadviser 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 Subadviser's responsibilities to the Trust
which (i) are based upon any willful misfeasance, bad faith, gross negligence,
or reckless disregard of, the Subadviser's obligations and/or duties under this
Agreement by the Subadviser or by any of its directors, officers or employees,
or any affiliate acting on behalf of the Subadviser (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 Trust 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 Trust, or
any affiliated person of the Trust by the Subadviser or any affiliated person of
the Subadviser (other than a PL Indemnified Person) provided, however, that in
no case is the Subadviser'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
Subadviser, any affiliated person within the meaning of Section 2(a)(3) of the
1940 Act of the Subadviser and each person, if any, who, within the meaning of
Section 15 of the 1933 Act controls ("controlling person") the Subadviser
(collectively, "Subadviser Indemnified Persons") against any and all losses,
claims, damages, liabilities or litigation (including reasonable legal and other
expenses) to which a Subadviser 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 Trust 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 Subadviser 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
Trust 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 Trust, or any affiliated
person of the Trust by the Subadviser or any affiliated person of the Subadviser
(other than a PL Indemnified Person) provided however, that in no case is the
Investment Adviser's indemnity in favor of the Subadviser Indemnified Persons
deemed to protect such person against any liability to which any such person
would
12
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 the 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 the 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 Trust, the Investment Adviser, or the Subadviser, 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 Trust at any time with respect to the services provided by
the Subadviser, 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 Trust
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 Subadviser and the Investment Adviser;
(b) by the Subadviser at any time, without the payment of any penalty,
upon sixty (60) days' prior written notice to the Investment Adviser and the
Trust.
(c) by the Investment Adviser at any time, without the payment of any
penalty, upon sixty (60) days' prior written notice to the Subadviser and the
Trust.
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) Subadviser 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, 19 and 20 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
Subadviser 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 Trust and/or the
Portfolio. Upon
13
termination of this Agreement, the Subadviser shall forthwith cease to use such
names (or abbreviations, derivatives or logos).
(b) It is understood that the name "Invesco" and any derivative
thereof or any logo associated with that name is the valuable property of the
Subadviser and that the Trust and the Investment Adviser have the right to use
such name (or derivative or logo), in the Trust'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 Subadviser is a Subadviser to the Trust and/or one of the Portfolio,
provided, however, that the Trust may continue to use the name of the Subadviser
in its Registrations Statement and other documents to the extent deemed
necessary by the Trust to comply with disclosure obligations under applicable
law and regulation. Neither the Trust nor the Investment Adviser shall use the
Subadviser's name or logo in promotional or sales related materials prepared by
or on behalf of the Investment Adviser or the Trust, without prior review and
approval by the Subadviser, which may not be unreasonably withheld. Upon
termination of this Agreement, the Trust and the Investment Adviser shall
forthwith cease to use such names (and logo), except as provided for herein.
17. SUBADVISER'S USE OF AGENTS. The Subadviser may from time to time employ
or associate itself with any person or persons believed to be particularly fit
to assist in its performance of services under this Agreement, provided no such
person serves or acts as an investment adviser separate from the Subadviser so
as to require a new written contract pursuant to the 1940 Act. The Subadviser
will act in good faith and with due diligence in the selection, use and
monitoring of such persons, including affiliates, subsidiaries or agents and
will enter into such arrangements in accordance with all applicable requirements
under the 1940 Act and any other applicable law. The Subadviser shall require
such persons to enter into a written confidentiality agreement, which shall
include, without limitation, provisions requiring adherence to the Trust's
Selective Disclosure Policy. The Subadviser shall remain fully liable for the
Subadviser's obligations hereunder and for all actions or omissions to act of
any such affiliates, subsidiaries or agents to the same extent as the Subadviser
is liable for its own actions hereunder and as if no delegation had occurred by
the Subadviser. The compensation of any such persons will be paid by the
Subadviser, and no obligations will be incurred by, or on behalf of, Investment
Adviser or the Trust with respect to them. The Subadviser acknowledges and
agrees that any such persons are not intended beneficiaries of this Agreement
and that they have no rights under this Agreement.
18. LIMITATION OF LIABILITY. A copy of the Declaration of Trust for the
Trust is on file with the Secretary of the State of Massachusetts. The
Declaration of Trust has been executed on behalf of the Trust by a Trustee of
the Trust in his capacity as Trustee of the Trust and not individually. The
obligations of this Agreement with respect to the 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 Trust individually, or
upon the Trust generally or upon any other portfolio of the Trust.
14
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 Subadviser, to:
Invesco Advisers, Inc,
c/o Invesco Aim Management Group, Inc,
00 Xxxxxxxx xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Facsimile transmission number: 000-000-0000
Attention: General CounselB.
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 Trust, 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.
15
(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/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxx
----------------------------------- ----------------------------------
Name: Xxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxx
Title: EVP & Chief Investment Officer Title: Vice President & Secretary
INVESCO ADVISERS, INC.
By: /s/ Xxxxxx Xxxxxxxxxxx By: /s/ X.X. Xxxxxxxx
----------------------------------- ----------------------------------
Name: Xxxxxx Xxxxxxxxxxx Name: X.X. Xxxxxxxx
Title: Senior Vice President Title: Assistant Secretary
PACIFIC SELECT FUND
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxx
----------------------------------- ----------------------------------
Name: Xxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxx
Title: President Title: Vice President & Secretary
16
EXHIBIT A
PACIFIC SELECT FUND
FEE SCHEDULE
EFFECTIVE: On the Effective Date as defined herein.
PORTFOLIO: XXXXXXXX PORTFOLIO
The Investment Adviser will pay to the Subadviser 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
Xxxxxxxx Portfolio and the XX Xxxxxxxx Fund of Pacific Life Funds according
to the following schedule:
RATE% BREAK POINT (ASSETS)
----- ----------------------------
0.35% First $2 billion
0.32% Next $1 billion
0.30% Excess over $3 billion; AND
(b) The ratio of the Xxxxxxxx Portfolio's average daily net assets over the
combined assets of the Xxxxxxxx Portfolio and the XX Xxxxxxxx Fund .
Fees for services shall be prorated for any portion of a year in which the
Agreement is not effective.
SUBADVISORY AGREEMENT
AGREEMENT made effective the 1st day of May, 2010 among X. XXXX PRICE
ASSOCIATES, INC., a Maryland corporation ("Subadviser"), PACIFIC LIFE FUND
ADVISORS LLC, a Delaware Limited Liability Company ("Investment Adviser"), and
PACIFIC SELECT FUND, a Massachusetts Business Trust (the "Trust").
WHEREAS, the Trust 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 Subadviser is registered with the SEC as an investment adviser
under the Advisers Act;
WHEREAS, the Trust has retained the Investment Adviser to render investment
advisory services to the various portfolios of the Trust pursuant to an Advisory
Agreement, as amended, and such Agreement authorizes the Investment Adviser to
engage a subadviser to discharge the Investment Adviser's responsibilities with
respect to the investment management of such portfolios;
WHEREAS, the Trust and the Investment Adviser desire to retain the
Subadviser to furnish investment advisory services to one or more portfolios of
the Trust, and the Subadviser 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 Trust, the Investment Adviser, and the
Subadviser as follows:
1. APPOINTMENT. The Trust and the Investment Adviser hereby appoint
Subadviser to act as subadviser to provide investment advisory services to the
portfolios of the Trust listed on Exhibit A attached hereto (individually, a
"Portfolio" and together, the "Portfolios") for the periods and on the terms set
forth in this Agreement. The Subadviser 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 Subadviser to
render investment advisory services to one or more portfolios of the Trust other
than the Portfolio, the Investment Adviser shall notify the Subadviser in
writing and shall revise Exhibit A to reflect such additional portfolio(s). If
the Subadviser is willing to render such services, it shall notify the Trust and
the Investment Adviser in writing, whereupon such portfolio shall become a
Portfolio hereunder, and be subject to this Agreement.
2. SUBADVISER DUTIES. Subject to the supervision of the Trust's Board of
Trustees (the "Board") and the Investment Adviser, the Subadviser will provide a
continuous investment program for the Portfolio and determine the composition of
the assets of the Portfolio. The
Subadviser will provide investment research and analysis, which may include
computerized investment methodology, and will conduct a continuous program of
evaluation, investment, purchases and/or sales, and reinvestment of the
Portfolio's assets by determining the securities, cash and other investments,
including, but not limited to, futures, options contracts, swaps and other
derivative instruments, if any and to the extent permitted in the Portfolio's
registration statement, 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
Subadviser 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 Subadviser 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 Subadviser is authorized to and shall exercise tender offers, exchange
offers and vote proxies on behalf of the Portfolio, each as the Subadviser
determines is in the best interest of the Portfolio in accordance with the
Subadviser's proxy voting policy. The Subadviser is authorized, on behalf of the
Portfolio, to open brokerage accounts in accordance with Trust procedures. The
Subadviser is authorized, on behalf of the Portfolio, 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 Trust procedures. The Investment Adviser shall provide such
assistance to the Subadviser in setting up and maintaining brokerage accounts,
futures and options accounts, and other accounts and trading documentation as
the Subadviser shall reasonably request to allow for the purchase or sale of
various forms of securities pursuant to this Subadvisory Agreement. The
Subadviser is not required to execute foreign currency trades through the
Custodian but may trade with those foreign exchange counterparties that the
Subadviser believes will provide the best service in accordance with its
fiduciary duty to seek best execution. In connection with the selection of
counterparties, the Subadviser may be required to provide certain Portfolio
information to broker-dealers (e.g., if requested in connection with their
obligations to confirm the Portfolio's credit capacity) but may not provide
non-public Portfolio holdings. Subadviser may also reasonably request certain
documentation from the Investment Adviser as agreed upon between the parties.
In performing these duties, the Subadviser:
(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 Trust, to the Investment Adviser (as provided to the
Subadviser by the Investment Adviser), or to the Subadviser); (2) applicable
rules and regulations under the Securities Exchange Act of 1934, as amended (the
"1934 Act"); (3) any applicable written procedures, policies and guidelines
adopted by the Board and furnished to the Subadviser; (4) the Trust's
objectives, investment policies and investment restrictions as stated in the
Trust's Prospectus and Statement of Additional Information as supplemented or
amended from time to time, as furnished to the Subadviser; (5) the provisions of
the Trust'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
2
Statement"); (6) Section 851(b)(2) and (3) of Subchapter M of the Internal
Revenue Code of 1986, as amended (the "Code"); (7) any other applicable laws and
regulations, including without limitation, proxy voting regulations; and (8) the
provisions of Section 817(h) of the Code, applicable to the Portfolio; and (9)
all other applicable federal and state laws and regulations pertaining to
investment vehicles underlying variable annuity and/or variable life insurance
contracts. To the extent that the Subadviser 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
Subadviser shall designate to the Trust's Custodian those assets to be
segregated in accordance with the 1940 Act, if necessary, based upon trading
strategies and positions the Subadviser 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 Subadviser, the Subadviser shall be fully
protected in relying on the Trust's Registration Statement previously furnished
by the Investment Adviser to the Subadviser. In managing the Portfolio in
accordance with the requirements of this Section 2, the Subadviser shall be
entitled to receive and act upon advice of counsel to the Trust, to the
Investment Adviser or to the Subadviser that is also acceptable to the
Investment Adviser.
(b) will (i) identify each position in certain of the Subadviser's
Portfolios that constitutes stock in a Passive Foreign Investment Company
("PFIC"), as that term is defined in Section 1296 of the Code, and (ii) provide
such information for comparison purposes to the Investment Adviser at least
annually (or more often ). This information will be provided for informational
purposes only, and does not constitute tax or accounting advice. The information
is provided "as is", and the Subadviser makes no representations or warranties
as to its accuracy or completeness and has no obligation to update or supplement
the information. The Subadviser will not reconcile the PFIC list to the
Portfolio's specific holdings.
(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 Subadviser's primary
consideration in effecting a security or other transaction will be to obtain the
best execution for the Portfolio according to the Subadviser's best execution
policies, taking into account the factors specified in the Prospectus and
Statement of Additional Information for the Trust, as they may be amended or
supplemented from time to time and furnished to the Subadviser. 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 Subadviser
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 Subadviser
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
Subadviser'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 Subadviser is further
3
authorized to place orders on behalf of the Portfolio through the Subadviser if
the Subadviser 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 Subadviser. Such allocation shall be in
such amounts and proportions as the Subadviser shall determine consistent with
the above standards, and, upon request, the Subadviser 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
Subadviser is authorized to open brokerage accounts or other accounts, as
described above, on behalf of the Portfolio in accordance with Trust procedures.
The Subadviser 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 Subadviser. 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 Subadviser in a manner that is fair and equitable and consistent
with the Subadviser'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 Trust, 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 Trust's custodian and
recordkeeping agent, and, if required, the Investment Adviser. The Subadviser
agrees to comply with such rules, procedures and time frames as the Trust'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 Trust's custodian.
(f) will provide reasonable assistance to the Investment Adviser,
custodian or recordkeeping agent for the Trust in determining or confirming,
consistent with the procedures and policies stated in the Trust'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 Subadviser or
identifies for review by the Subadviser. 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
4
of the Investment Adviser or custodian, to one or more employees of the
Subadviser 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 and as a result the Subadviser recommends a change in the valuation
of such Portfolio security; or such security otherwise requires review to
determine if fair valuation is necessary either under the Trust's procedures or
under instructions provided by the Investment Adviser in a letter related to the
fair value notification process, dated March 26, 2010, as either may be amended
from time to time, and both to be incorporated herein by reference; (iii)
applying to the Portfolio's assets the procedures of the Subadviser used for
valuing the assets held by other accounts under management of the Subadviser 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 for which market quotations are not readily available or reliable;
(v) verifying pricing and providing fair valuations or recommendations for fair
valuations in accordance with the Subadviser'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 Trust
upon request. Such records shall be deemed to be Trust records although the
Subadviser is permitted to maintain copies of those records necessary to comply
with federal regulatory requirements.
(g) will maintain and preserve such records related to the Portfolio's
transactions as required under the 1940 Act and the Advisers Act. The Subadviser
will make available to the Trust and the Investment Adviser promptly upon
request, any of the Portfolio's investment records and ledgers maintained by the
Subadviser (which shall not include the records and ledgers maintained by the
custodian and recordkeeping agent for the Trust), as are necessary to assist the
Trust 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 Trust are being conducted in a manner consistent
with applicable laws and regulations.
To the extent that the Subadviser has agreed to perform the services
specified in this Section 2 in accordance with applicable law (including
Subchapters M and L of the Internal Revenue Code of 1986, as amended (the
"Code"), the 1940 Act and the Advisers Act) and in accordance with the Trust's
Instrument and By-Laws, policies and determinations of the Trustees of the
Trust, the Investment Adviser, and the Trust's Registration Statement, the
Subadviser may perform such services based upon its books and records with
respect to the Portfolio; provided, however, Subadviser shall reconcile its
books and records to the Trust's books and records on a daily basis.
5
(h) will quarterly, or as otherwise requested by the Board or
Investment Adviser, 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 the Portfolio, a quarterly compliance checklist, reports regarding compliance
with the Trust's procedures pursuant to Rules 17e-1, 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 Trusts, and
compliance with the Subadviser'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-1 under the 1940 Act and Rule 204A-1 under the Advisers
Act and will provide the Investment Adviser and the Trust 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
president or a vice president, the chief compliance officer and/or president
and/or managing director (as the Investment Adviser determines appropriate) of
the Subadviser shall certify to the Investment Adviser that the Subadviser has
complied with the requirements of Rule 17j-1 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 Trust, the Subadviser shall permit representatives of the Investment Adviser
and the Trust to examine the reports on material and non-material violations (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 Subadviser'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 Subadviser 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 Subadviser will provide a list of
persons whom the Subadviser 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 Subadviser's regulatory
obligations, including the preparation and filing of such reports with respect
to the assets of the Portfolio reflecting holdings over which the Subadviser or
its affiliates have investment discretion as may be required from time to time,
including but not limited to Form 13F, Schedule 13D or 13G in respect of the
Portfolio as may be required of the Trust due to the activities of the
Subadviser, and the Subadviser is authorized to and shall file on behalf of the
Portfolio any required filing if the Portfolio holds a portfolio security for
which a Schedule 13D or 13G is required based on the ownership level.
6
(l) will not permit any employee of the Subadviser 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 ("Confidential Information") (and any other
information obtained for the use of its clients 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 brokerage or other accounts 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 or is
otherwise publicly available. The Trust and the Investment Adviser will not
disclose or use any records or information with respect to the Subadviser
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, or if such disclosure is
required by applicable federal or state law or regulations or regulatory
authorities having the requisite authority.
The Investment Adviser and Subadviser each agrees that it, its trustees,
officers and employees, or any service provider to whom the entity may disclose
Confidential Information in the ordinary course of business, will not use the
Confidential Information to make investments for themselves or others or to make
recommendations for others. The Investment Adviser and Subadviser each agrees to
establish and enforce appropriate procedures to ensure that all such persons
will use the Confidential Information only as permitted under this Agreement.
The Investment Adviser and Subadviser each shall take reasonable security
precautions, at least as
7
great as the precautions it takes to protect its own confidential information,
to prevent the Confidential Information from being disclosed to third persons.
In the event that the recipient of Confidential Information (the
"Recipient") is requested or required (by deposition, interrogatories, requests
for information or documents in legal proceedings, subpoenas, civil
investigative demand or similar process), in connection with any proceeding, to
disclose any of the discloser's Confidential Information, the Recipient will
give the discloser prompt written notice of such request or requirement to allow
the discloser an opportunity to obtain a protective order or otherwise obtain
assurances that confidential treatment will be accorded to such Confidential
Information. In the event that such protective order or other remedy is not
obtained, disclosure shall be made of only that portion of the Confidential
Information that is legally required to be disclosed. All Confidential
Information disclosed as required by law shall nonetheless continue to be deemed
Confidential Information.
(n) will assist the Investment Adviser, the Trust, 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 Subadviser
hereunder. Specifically, and without limitation to the foregoing, the Subadviser
agrees to provide certifications to the principal executive and financial
officers of the Trust (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 Trust'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 Trust shall
reasonably request or in accordance with procedures adopted by the Trust.
(o) is, along with its affiliated persons, permitted to enter into
transactions with the other portfolios of the Trust and affiliated persons of
those other portfolios of the Trust (collectively, the "Other Portfolios"). In
doing so, the Subadviser is prohibited from consulting with the Investment
Adviser or the subadvisers 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 Subadviser, 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
Subadviser shall vote proxies on behalf of the Portfolio in a manner deemed by
the Subadviser to be in the best interests of the Portfolio pursuant to the
Subadviser's written Proxy Voting Policies and Procedures. The Subadviser 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 Subadviser 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 Subadviser 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 statutes and regulations.
8
(q) will provide reasonable assistance to the Trust and the Trust's
Chief Compliance Officer ("CCO") in complying with Rule 38a-1 under the 1940
Act. Specifically, the Subadviser 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 Subadviser's compliance program, which access shall
include on-site visits with the Subadviser 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-1, the Subadviser agrees to
provide certifications as may be reasonably requested by the CCO related to the
design and implementation of the Subadviser's compliance program.
(r) will comply with the Trust's policy on selective disclosure of
portfolio holdings of the Trust (the "Selective Disclosure Policy"), as provided
in writing to the Subadviser and as may be amended from time to time. The
Subadviser agrees to provide a certification with respect to compliance with the
Trust's Selective Disclosure Policy as may be reasonably requested by the Trust
from time to time.
(s) will notify the Investment Adviser promptly in the event that, in
the judgment of the Subadviser, Portfolio share transaction activity becomes
disruptive to the ability of the Subadviser 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 Subadviser hereunder.
(u) will provide such certifications to the Trust as the Trust or the
Investment Adviser may reasonably request related to the services provided by
the Subadviser hereunder, including (but not limited to) certifications of
compliance with Trust procedures, the Registration Statement, and applicable
securities regulations.
(v) will monitor and 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 Subadviser
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 Trust's financial statements, including, but
not limited to: (i) providing assistance with obtaining 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 Trust or the Trust's independent registered public accounting firm
9
is unable to obtain such confirmations directly from the brokers; and (iv)
providing assistance in obtaining market quotations for investments (including
investments in loans (including participations and assignments) and derivatives)
that are not readily ascertainable in the event the Trust or the Trust's
independent registered public accounting firm is unable to obtain such market
quotations through independent means.
(x) will, pursuant to the Investment Adviser's request, provide
comparative fee information if the Subadviser acts as sub-adviser to another
U.S. registered mutual fund that follows the same investment strategy as the
Portfolio.
(y) will, for the duration of this Agreement, not directly solicit or
induce any investment personnel of Investment Adviser or its affiliated
companies to leave the employ of Investment Adviser or affiliated company.
Subadviser may indirectly solicit personnel of Investment Adviser or its
affiliated companies to leave the employ of Investment Adviser or affiliated
companies by means of general advertising or through broad recruiting efforts.
After personnel of Investment Adviser or an affiliate cease to be in the employ
of Investment Adviser or affiliate, Subadviser shall be free to directly or
indirectly employ or retain such investment personnel in any capacity, so long
as Subadviser did not solicit or induce such personnel to leave the employ of
Investment Adviser or its affiliate.
3. DISCLOSURE ABOUT SUBADVISER AND PORTFOLIO. The Subadviser 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 Subadviser 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 Subadviser, including any performance information the Subadviser 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
Subadviser further agrees to notify the Investment Adviser and the Trust
immediately of any material fact about the Subadviser, related to the Portfolio
or services provided to the Portfolio, known to the Subadviser respecting or
relating to the Subadviser, that is not contained in the Registration Statement
or prospectus for the Trust, or any amendment or supplement thereto, or of any
statement respecting or relating to the Subadviser contained therein that
becomes untrue in any material respect. With respect to the disclosure
respecting the Portfolio, the Subadviser represents and agrees that the
description in the Trust'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 Subadviser intends to manage
the Portfolio, and the identification of risks is inclusive of all material
risks known to the Subadviser that are expected to arise in connection with the
manner in which the Subadviser intends to manage the Portfolio. The Subadviser
further agrees to notify the Investment Adviser and the Trust promptly in the
event that the Subadviser becomes aware that the Portfolio Description for a
Portfolio is inconsistent in any material respect with the manner in which the
Subadviser is managing the Portfolio, and in the event that the identified risks
are inconsistent in any material respect with the risks known to the Subadviser
that arise in connection with the
10
manner in which the Subadviser is managing the Portfolio. In addition, the
Subadviser agrees to comply with the Investment Adviser's reasonable request for
information regarding the personnel of the Subadviser who are responsible for
the day-to-day management of a Portfolio's assets.
4. EXPENSES. The Subadviser shall bear all expenses incurred by it and its
staff with respect to all activities in connection with the performance of the
Subadviser's services under this Agreement, including but not limited to
salaries, overhead, travel, preparation of Board materials, review of marketing
materials relating to Subadviser or other information provided by Subadviser to
the Investment Adviser and/or the Trust's Distributor, and marketing support.
Subadviser agrees to pay to the Investment Adviser the cost of generating a
prospectus supplement, which includes preparation, filing, printing, and
distribution (including mailing costs) of the supplement, if the Subadviser
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 the Portfolio's portfolio manager(s), to investment style or
management, or otherwise ("Changes"), and at the time of notification to the
Trust by the Subadviser of such Changes, the Trust is not generating a
supplement for other purposes or the Trust does not wish to add such Changes to
a pending supplement. In the event two or more subadvisers each require a
supplement simultaneously, the expense of each supplement will be shared pro
rata with such other subadviser(s) based upon the number of pages required by
each such subadviser. All other expenses not specifically assumed by the
Subadviser hereunder or by the Investment Adviser under the Advisory Agreement
are borne by the applicable Portfolio of the Trust. The Trust, the Subadviser
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
Subadviser pursuant to this Agreement, the Investment Adviser will pay to the
Subadviser 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. The Investment Adviser shall pay the Subadviser such
fee not later than the fifteenth (15th) business day immediately following the
end of each month.
6. SEED MONEY. The Investment Adviser agrees that the Subadviser shall not
be responsible for providing money for the initial capitalization of any
Portfolio.
7. COMPLIANCE.
(a) The Subadviser agrees that it shall immediately notify the
Investment Adviser and the Trust (i) in the event that the SEC, CFTC, or any
banking or other regulatory body has censured the Subadviser; placed limitations
upon its activities, functions or operations; suspended or revoked its
registration, if any, or ability to serve as an investment adviser; (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 based on the Trust's records related to the Portfolio or based on the
Subadviser's records related to the Portfolio so long as Subadviser reconciles
its records on a daily basis to the Trust's records; and (iii) upon having a
reasonable basis for believing that the Portfolio has ceased to comply with the
11
diversification provisions of Section 817(h) of the Code or the Regulations
thereunder based on the Trust's records related to the Portfolio or based on the
Subadviser's records related to the Portfolio so long as Subadviser reconciles
its records on a daily basis with the Portfolio's records. The Subadviser
further agrees to notify the Investment Adviser and Trust immediately of any
material fact known to the Subadviser respecting or relating to the Subadviser
that is not contained in the Registration Statement that relates to the
Subadviser or the Portfolio, 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
Subadviser (i) in the event that the SEC or any other applicable regulatory body
has censured the Investment Adviser or the Trust; 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 Subadviser 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 Subadviser understands that unless provided
herein or authorized from time to time by the Trust, the Subadviser shall have
no authority to act for or represent the Trust in any way or otherwise be deemed
the Trust'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
Subadviser hereby agrees that all records which it maintains for the Portfolio
are the property of the Trust and further agrees to surrender promptly to the
Trust any of such records upon the Trust's or the Investment Adviser's request,
although the Subadviser 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 Trust.
11. RESPONSIBILITY AND CONTROL. Notwithstanding any other provision of this
Agreement, it is understood and agreed that the Trust reserves the right to
direct, approve or disapprove any action hereunder taken on its behalf by the
Subadviser, provided, however, that the Subadviser shall not be liable for any
losses to the Trust resulting from the Trust's direction, or from the Trust's
disapproval of any action proposed to be taken by the Subadviser.
12. SERVICES NOT EXCLUSIVE. It is understood that the services of the
Subadviser and its employees are not exclusive, and nothing in this Agreement
shall prevent the Subadviser (or
12
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. The Subadviser may act as a subadviser to other subadvisers of the
Trust and Pacific Life Funds.
13. LIABILITY. Except as may otherwise be required by the 1940 Act or the
rules thereunder or other applicable law, the Trust and the Investment Adviser
agree that the Subadviser, any affiliated person of the Subadviser, and each
person, if any, who, within the meaning of Section 15 of the 1933 Act, controls
the Subadviser, 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
Subadviser's duties, or by reason of reckless disregard of the Subadviser'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 Trust may have under federal or state securities laws.
14. INDEMNIFICATION.
(a) The Subadviser 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 a PL 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
Subadviser's responsibilities to the Trust as Subadviser which (i) are based
upon any willful misfeasance, bad faith, gross negligence, or reckless disregard
of, the Subadviser's obligations and/or duties under this Agreement by the
Subadviser or by any of its directors, officers or employees, or any affiliate
acting on behalf of the Subadviser (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 Trust 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 Trust, or any affiliated person of the
Trust by the Subadviser or any affiliated person of the Subadviser (other than a
PL Indemnified Person) provided, however, that in no case is the Subadviser'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
Subadviser, any affiliated person within the meaning of Section 2(a)(3) of the
1940 Act of the Subadviser and each person, if any, who, within the meaning of
Section 15 of the 1933 Act controls ("controlling person") the Subadviser
(collectively, "Subadviser Indemnified Persons")
13
against any and all losses, claims, damages, liabilities or litigation
(including reasonable legal and other expenses) to which a Subadviser
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 Trust
which (i) are based upon any willful misfeasance, bad faith, gross 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 Subadviser 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 Trust 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 Trust, or any affiliated person of the
Trust by the Subadviser or any affiliated person of the Subadviser (other than a
PL Indemnified Person) provided however, that in no case is the Investment
Adviser's indemnity in favor of the Subadviser 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 the 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 the 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 Trust, the Investment Adviser, or the Subadviser, 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 Trust at any time with respect to the services provided by
the Subadviser, 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 Trust
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 Subadviser and the Investment Adviser;
(b) by the Subadviser at any time, without the payment of any penalty,
upon sixty (60) days' prior written notice to the Investment Adviser and the
Trust.
(c) by the Investment Adviser at any time, without the payment of any
penalty, upon sixty (60) days' prior written notice to the Subadviser and the
Trust.
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
14
not approved in the manner described above (i) Subadviser 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
Subadviser 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 Trust and/or the
Portfolio. Upon termination of this Agreement, the Subadviser shall forthwith
cease to use such names (or abbreviations, derivatives or logos).
(b) It is understood that the name "X. Xxxx Price Associates, Inc." is
the valuable property of the Subadviser and that the Trust and the Investment
Adviser have the right to use such name (or derivative), in the Trust'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 Subadviser is a Subadviser to the Trust and/or one of the
Portfolio, provided, however, that the Trust may continue to use the name (but
not the logos) of the Subadviser in its Registration Statements and other
documents to the extent deemed necessary by the Trust to comply with disclosure
obligations under applicable law and regulation. Neither the Trust nor the
Investment Adviser shall use the Subadviser's name or logos in promotional or
sales related materials prepared by or on behalf of the Investment Adviser or
the Trust, without prior review and written approval by the Subadviser which may
not be unreasonably withheld. Upon termination of this Agreement, the Trust 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
Trust is on file with the Secretary of the State of Massachusetts. The
Declaration of Trust has been executed on behalf of the Trust by a Trustee of
the Trust in his capacity as Trustee of the Trust and not individually. The
obligations of this Agreement with respect to the 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 Trust individually, or
upon the Trust generally or upon any other portfolio of the Trust.
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):
15
A. if to the Subadviser, to:
X. Xxxx Price Associates, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile transmission number: 000-000-0000
Attention: Xxxxx Xxxxxxxxxxx, Chief Legal 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, General Counsel Fund Advisor
C. if to the Trust, 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, General Counsel
19. MISCELLANEOUS.
(a) This Agreement shall be governed by the laws of the State 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.
(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.
16
(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/ Xxxx Xxx Xxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------------- --------------------------------
Name: Xxxx Xxx Xxxxx Name: Xxxxxx X. Xxxxx
Title: Executive Vice President Title: VP & Secretary
X. XXXX PRICE ASSOCIATES, INC.
By: /s/ Xxxx Xxxxxxx-Xxxx
-------------------------------------
Name: Xxxx Xxxxxxx-Xxxx
Title: Vice President
PACIFIC SELECT FUND
By: /s/ Xxxx Xxx Xxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------------- --------------------------------
Name: Xxxx Xxx Xxxxx Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer Title: VP & Secretary
17
EXHIBIT A
PACIFIC SELECT FUND
FEE SCHEDULE
EFFECTIVE: May 1, 2010
PORTFOLIO: DIVIDEND GROWTH PORTFOLIO
The Investment Adviser will pay to the Subadviser a monthly fee for its
services for the above noted Portfolio based on:
The annual percentage of the average daily net assets of the Dividend
Growth Portfolio according to the following schedule:
RATE% BREAK POINT (ASSETS)
----- --------------------
0.50% First $50 million
0.45% On next $50 million;
ONCE ASSETS EXCEED $100 MILLION:
0.40% On first $100 million;
0.375% On next $150 million;
0.325% On next $750 million; and
0.30% On assets above $1 billion
In recognition of the fact that the Subadviser may have an inherent
constraint with respect to the amount of money that Subadviser is able to manage
in a particular strategy, Subadviser agrees to consult with Investment Adviser
on an annual basis to determine the extent of those constraints and the
appropriate investment limitations for the Dividend Growth Portfolio
Fees for services shall be prorated for any portion of a year in which the
Agreement is not effective.
