PORTFOLIO MANAGEMENT AGREEMENT
Exhibit (d)(n)(A)
AGREEMENT made effective the 1st day of May, 2008 among Pacific Life Fund Advisors
LLC, a Delaware Limited Liability Company (“Investment Adviser”), and X.X. Xxxxxx Investment
Management Inc. a Delaware corporation (“Portfolio Manager”), and Pacific Select Fund, a
Massachusetts Business Trust (the “Fund”).
WHEREAS, the Fund is registered with the Securities and Exchange Commission (“SEC”) as an
open-end, management investment company under the Investment Company Act of 1940, as amended (the
“1940 Act”);
WHEREAS, the Investment Adviser is registered as an investment adviser under the Investment
Advisers Act of 1940, as amended (“Advisers Act”);
WHEREAS, the Portfolio Manager is registered with the SEC as an investment adviser under the
Advisers Act;
WHEREAS, the Fund has retained the Investment Adviser to render investment advisory services
to the various portfolios of the Fund pursuant to an Advisory Agreement, as amended, and such
Agreement authorizes the Investment Adviser to engage a portfolio manager to discharge the
Investment Adviser’s responsibilities with respect to the investment management of such portfolios,
a copy of which has been provided to the Portfolio Manager and is incorporated herein by reference;
WHEREAS, the Fund and the Investment Adviser desire to retain the Portfolio Manager to
furnish certain investment advisory services to one or more portfolios of the Fund, and the
Portfolio Manager is willing to furnish such services to such portfolios and the Investment
Adviser in the manner and on the terms hereinafter set forth; and
NOW THEREFORE, in consideration of the promises and mutual covenants herein contained, it is
agreed among the Fund, the Investment Adviser, and the Portfolio Manager as follows:
1. Appointment. The Fund and the Investment Adviser hereby appoint X.X. Xxxxxx Investment
Management Inc. to act as Portfolio Manager to provide investment advisory services to the
portfolios of the Fund or a designated portion of a portfolio (“Segment”) listed on Exhibit A
attached hereto (each, a “Portfolio”) for the periods and on the terms set forth in this Agreement.
The Portfolio Manager accepts such appointment and agrees to furnish the services herein set forth
for the compensation herein provided.
In the event the Investment Adviser wishes to retain the Portfolio Manager to render
investment advisory services to one or more portfolios of the Fund other than the Portfolio or to
make changes to the allocations of a Segment, the Investment Adviser shall notify the Portfolio
Manager in writing and shall revise Exhibit A to reflect such additional portfolio(s) or change to
a Segment. If the Portfolio Manager is willing to render such services, it shall notify the Fund
and the Investment Adviser in writing, whereupon such portfolio shall become a Portfolio hereunder,
and be subject to this Agreement.
2. Portfolio Manager Duties. Subject to the supervision of the Fund’s Board of Trustees (the
“Board”) and the Investment Adviser, the Portfolio Manager will provide a continuous investment
program for the Portfolio or a Segment of a Portfolio and determine the composition of the assets
of the Segment or Portfolio. The Portfolio Manager will provide investment research and analysis,
which may include computerized investment methodology, and will conduct a continuous program of
evaluation, investment, sales, and reinvestment of the Portfolio’s assets by determining the
securities, cash and other investments, including futures and options contracts, if any, that shall
be purchased, entered into, retained, sold, closed, or exchanged for the Portfolio, when these
transactions should be executed, and what portion of the assets of the Portfolio should be held in
the various securities and other investments in which it may invest, and the Portfolio Manager is
hereby authorized to execute and perform such services on behalf of the Portfolio. To the extent
permitted by the written investment policies of the Portfolio, the Portfolio Manager shall make
decisions for the Portfolio as to foreign currency matters and make determinations as to the
retention or disposition of foreign currencies or securities or other instruments denominated in
foreign currencies, or derivative instruments based upon foreign currencies, including forward
foreign currency contracts and options and futures on foreign currencies and shall execute and
perform the same on behalf of the Portfolio. The Portfolio Manager is authorized to and shall
exercise tender offers, exchange offers and vote proxies on behalf of each Portfolio, each as the
Portfolio Manager determines is in the best interest of the Portfolio.
In performing these duties, the Portfolio Manager:
(a) will conform with (1) the 1940 Act and all rules and regulations thereunder, and releases
and interpretations related thereto (including any no-action letters and exemptive orders which
have been granted by the SEC to the Fund, to the Investment Adviser (as provided to the Portfolio
Manager by the Investment Adviser), or to the Portfolio Manager), (2) all other applicable federal
laws and regulations pertaining to investment vehicles underlying variable annuity and/or variable
life insurance contracts, (3) the applicable state insurance laws and regulations pertaining to
investment vehicles underlying variable annuity and/or variable life insurance contracts identified
and described in the Fund’s registration statement related to the Portfolio or otherwise provided
to the Portfolio Manager by the Investment Adviser, (4) any applicable written procedures, policies
and guidelines adopted by the Board and furnished to the Portfolio Manager, (5) the Fund’s
objectives, investment policies and investment restrictions as stated in the Fund’s Prospectus and
Statement of Additional Information as supplemented or amended from time to time, as furnished to
the Portfolio Manager, (6) the provisions of the Fund’s Registration Statement filed on Form N-1A
under the Securities Act of 1933 (the “1933 Act”) and the 1940 Act, as supplemented or amended from
time to time (the “Registration Statement”), (7) Section 851(b)(2) and (3) of Subchapter M of the
Internal Revenue Code of 1986, as amended (the “Code”), (8) the provisions of Section 817(h) of the
Code, applicable to the Portfolio; and (9) any other applicable laws and regulations, including
without limitation, proxy voting regulations. Until the Investment Adviser delivers any supplements
or amendments to the Portfolio Manager, the Portfolio Manager shall be fully protected in relying
on the Fund’s Registration Statement previously furnished by the Investment Adviser to the
Portfolio Manager. In managing the Portfolio in accordance with the requirements of this Section 2,
the Portfolio Manager shall be entitled to receive and act upon advice of counsel to the Fund, to
the Investment Adviser or to the Portfolio Manager that is also acceptable to the Investment
Adviser.
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(b) will (i) identify each position in the Segment or 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 Segment or Portfolio, for
broker-dealer and futures commission merchant (“FCM”) selection, and for negotiation of commission
rates. The Portfolio Manager’s primary consideration in effecting a security or other transaction
will be to obtain the best execution for the Portfolio, taking into account such factors as price
(including the applicable commission or dollar spread), size of the order, the nature of the market
for the security, the timing of the transaction, the reputation, experience and financial stability
of the broker — dealer involved, the quality of the service, the difficulty of execution and the
operational facilities of the firms involved, and the firm’s risk in positioning a block of
securities and other such factors that are consistent with the objective of obtaining best
execution as may be specified in the Prospectus and Statement of Additional Information for the
Fund, as they may be amended or supplemented from time to time and furnished to the Portfolio
Manager. Subject to such policies as the Board may determine and consistent with Section 28(e) of
the Securities Exchange Act of 1934, as amended (the “1934 Act”), the Portfolio Manager shall not
be deemed to have acted unlawfully or to have breached any duty created by this Agreement or
otherwise solely by reason of its having caused the Portfolio to pay a broker or dealer, acting as
agent, for effecting a Portfolio transaction at a price in excess of the amount of commission
another broker or dealer would have charged for effecting that transaction, if the Portfolio
Manager determines in good faith that such amount of commission was reasonable in relation to the
value of the brokerage and research services provided by such broker or dealer, viewed in terms of
either that particular transaction or the Portfolio Manager’s (or its affiliates’) overall
responsibilities with respect to the Portfolio and to its other clients as to which it exercises
investment discretion. To the extent consistent with these standards, and in accordance with
Section 11(a) of the 1934 Act and Rule lla2-2(T) thereunder, and subject to any other applicable
laws and regulations including Section 17(e) of the 1940 Act, the Portfolio Manager is further
authorized to place orders on behalf of the Portfolio through the Portfolio Manager if the
Portfolio Manager is registered as a broker or dealer with the SEC or as a FCM with the Commodities
Futures Trading Commission (“CFTC”), through any of its affiliates that are brokers or dealers or
FCMs or such other entities which provide similar services in foreign countries, or through such
brokers and dealers that also provide research or statistical research and material, or other
services to the Portfolio or the Portfolio Manager. Such allocation shall be in such amounts and
proportions as the Portfolio Manager shall determine consistent with the above standards, and, upon
request, the Portfolio Manager will report on said allocation to the Investment Adviser and Board,
indicating the brokers, dealers or FCMs to which such allocations have been made and the basis
therefor. The Portfolio Manager is authorized to open brokerage accounts on behalf of the Portfolio
in accordance with Fund procedures. The Portfolio Manager shall not direct brokerage to any
broker-dealer in recognition of, or otherwise take into account in making brokerage allocation
decisions, sales of shares of a Portfolio or of any other investment vehicle by that broker-dealer.
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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 Portfolio Manager. In
such event, allocation of the securities so purchased or sold, as well as the expenses incurred in
the transaction, will be made by the Portfolio Manager in a manner that is fair and equitable and
consistent with the Portfolio Manager’s fiduciary obligations to the Portfolio and to such other
clients. The Investment Adviser and the Fund recognize that, in some cases, this procedure may
limit the size of the position that may be acquired or sold for the Portfolio. It shall be
understood that the Portfolio Manager is not required to consider the activities of any other
portfolio manager of the Portfolio or Fund with respect to its duties under this provision.
(e) will, in connection with the purchase and sale of securities for the Portfolio, together
with the Investment Adviser, arrange for the transmission to the custodian and recordkeeping agent
for the Fund, on a daily basis, such confirmation(s), trade tickets, and other documents and
information, including, but not limited to, CUSIP, SEDOL, or other numbers that identify securities
to be purchased or sold on behalf of the Portfolio, as may be reasonably necessary to enable the
custodian and recordkeeping agent to perform its administrative and recordkeeping responsibilities
with respect to the Portfolio, and with respect to Portfolio securities to be purchased or sold
through the Depository Trust Company, will arrange for the automatic transmission of the
confirmation of such trades to the Fund’s custodian and recordkeeping agent, and, if required, the
Investment Adviser. The Portfolio Manager agrees to comply with such rules, procedures and time
frames as the Fund’s custodian may reasonably set or provide with respect to the clearance and
settlement of transactions for a Portfolio, including but not limited to submission of trade
tickets. Any Portfolio assets shall be delivered directly to the Fund’s custodian.
(f) will provide reasonable assistance to the Investment Adviser, custodian or recordkeeping
agent for the Fund in determining or confirming, consistent with the procedures and policies stated
in the Fund’s valuation procedures and/or the Registration Statement, the value of any portfolio
securities or other assets of the Portfolio for which the Investment Adviser, custodian or
recordkeeping agent seeks assistance from the Portfolio Manager or identifies for review by the
Portfolio Manager. Such reasonable assistance shall include (but is not limited to): (i)
designating and providing timely access, on an as-needed basis and upon the reasonable request of
the Investment Adviser or custodian, to one or more employees of the Portfolio Manager who are
knowledgeable about the security/issuer, its financial condition, trading and/or other relevant
factors for valuation, which employees shall be available for consultation when the Board’s
Valuation Committee convenes; (ii) notifying the Investment Adviser in the event the Portfolio
Manager has reason to believe that any Portfolio security’s value does not appear to reflect
corporate actions, news, significant events or such security otherwise requires review to determine
if fair valuation is necessary under the Fund’s procedures; (iii) notifying the Investment Adviser
in the event the Portfolio Manager determines, with respect to a security held by the Portfolio, of
the fair value of such security pursuant to the Portfolio Manager’s procedures for determining the
fair value of a security, using the same valuation procedures for the Portfolio’s assets that the
Portfolio Manager uses for valuing the assets held by other accounts under management of the
Portfolio Manager that might be fair valued under the Portfolio
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Manager’s procedures, including those assets for which a market quotation is not readily
available or is deemed to be unreliable with respect to such asset; (iv) upon the request of the
Investment Adviser or custodian, assisting in obtaining bids and offers or quotes from
broker/dealers or market-makers with respect to securities held by the Portfolio; (v) upon the
request of the Investment Adviser or custodian, confirming pricing and providing fair valuations or
recommendations for fair valuations in accordance with the Fund’s valuation procedures, as they may
be amended from time to time; and (vi) maintaining adequate records and written backup information
with respect to the securities valuation assistance provided hereunder, and providing such
information to the Investment Adviser or the Fund upon request. Such records shall be deemed to be
Fund records.
(g) will maintain and preserve such records related to each Portfolio’s transactions as
required under the 1940 Act and the Advisers Act. The Portfolio Manager will make available to the
Fund and the Investment Adviser promptly upon request, any of the Portfolio’s investment records
and ledgers maintained by the Portfolio Manager (which shall not include the records and ledgers
maintained by the custodian and recordkeeping agent for the Fund), as are necessary to assist the
Fund and the Investment Adviser in complying with requirements of the 1940 Act and the Advisers
Act, as well as other applicable laws, and will furnish to regulatory authorities having the
requisite authority any information or reports in connection with such services which may be
requested in order to ascertain whether the operations of the Fund are being conducted in a manner
consistent with applicable laws and regulations.
(h) will regularly report to the Board on the investment program for the Segment or Portfolio
and the issuers and securities represented in the Portfolio, and will furnish the Board, with
respect to the Segment or Portfolio, such periodic and special reports as the Board and the
Investment Adviser may reasonably request, including, but not limited to, reports concerning
transactions and performance of each Segment or Portfolio, a quarterly compliance checklist,
reports regarding compliance with the Fund’s procedures pursuant to Rules 17e-l, 17a-7, 10f-3 and
12d3-1 under the 1940 Act, fundamental investment restrictions, procedures for opening brokerage
accounts and commodity trading accounts, liquidity determination of securities purchased pursuant
to Rule 144A and 4(2) commercial paper, IOs/POs, confirmation of the liquidity of all other
securities in the Funds, and compliance with the Portfolio Manager’s Code of Ethics, and such other
reports or certifications that the Investment Adviser may reasonably request from time to time.
(i) will adopt a written Code of Ethics complying with the requirements of Rule 17j-l under
the 1940 Act and Rule 204A-l under the Advisers Act and will provide the Investment Adviser and the
Fund with a copy of the Code of Ethics, together with evidence of its adoption. Within 30 days of
the end of each calendar quarter during which this Agreement remains in effect, the president or a
vice-president of the Portfolio Manager shall certify to the Investment Adviser that the Portfolio
Manager has complied with the requirements of Rule 17j-l during the previous calendar quarter and
that there have been no violations of the Code of Ethics or, if a violation has occurred, that
appropriate action has been taken in response to such violation. Upon written request of the
Investment Adviser or the Fund, with respect to violations of the Code of Ethics potentially
affecting the Portfolio, the Portfolio Manager shall permit representatives of the Investment
Adviser and the Trust to examine the reports (or summaries of
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the reports) required to be made under the Code of Ethics relating to enforcement of the Code
of Ethics.
(j) will provide to the Investment Adviser a copy of the Portfolio Manager’s Form ADV, and any
supplements or amendments thereto, as filed with the SEC, on an annual basis (or more frequently if
requested by the Investment Adviser or the Board) including any portion which contains disclosure
of legal or regulatory actions. The Portfolio Manager represents and warrants that it is a duly
registered investment adviser under the Advisers Act and will notify the Investment Adviser
immediately if any action is brought by any regulatory body which would cause it to cease to be so
registered. The Portfolio Manager will provide a list of persons whom the Portfolio Manager wishes
to have authorized to give written and/or oral instructions to Custodians of assets for the Segment
or Portfolio.
(k) will be responsible for the preparation and filing of Schedule 13G and Form 13F with
respect to the assets of the Segment or Portfolio reflecting holdings over which the Portfolio
Manager and its affiliates have investment discretion.
(l) will not permit any employee of the Portfolio Manager to have any material involvement
with the management of the Segment or 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 and other investments, including derivatives, 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
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information only if the Board has authorized such disclosure, or if such disclosure is
required by applicable federal or state law or regulations or regulatory authorities having the
requisite authority. The Fund and the Investment Adviser will not disclose or use any records or
information with respect to the Portfolio Manager obtained pursuant to this Agreement, in any
manner whatsoever except as expressly authorized in this Agreement, and will keep confidential any
information obtained pursuant to this Agreement, and disclose such information only as expressly
authorized in this Agreement, if the Board has authorized such disclosure, or if such disclosure is
required by applicable federal or state law or regulations or regulatory authorities having the
requisite authority.
(n) will assist the Investment Adviser, the Fund, and any of its or their trustees, directors,
officers, and/or employees in complying with the provisions of the Xxxxxxxx-Xxxxx Act of 2002 to
the extent such provisions relate to the services to be provided by, and the obligations of, the
Portfolio Manager hereunder. Specifically, and without limitation to the foregoing, the Portfolio
Manager agrees to provide certifications to the principal executive and financial officers of the
Fund (the “certifying officers”) that correspond to and/or support the certifications required to
be made by the certifying officers in connection with the preparation and/or filing of the Fund’s
Form N-CSRs, N-Qs, N-SARs, shareholder reports, financial statements, and other disclosure
documents or regulatory filings, in such form and content as the Fund shall reasonably request or
in accordance with procedures adopted by the Fund.
(o) is, along with its affiliated persons, permitted to enter into transactions with the other
portfolios of the Fund and affiliated persons of those other portfolios of the Fund or other
segments of a Portfolio (collectively, the “Other Portfolios”). In doing so, the Portfolio Manager
is prohibited from consulting with the Investment Adviser or the portfolio managers of these Other
Portfolios concerning securities transactions of the Portfolio except for the purpose of complying
with the conditions of Rule 12d3-1(a) and (b) under the 1940 Act.
(p) will exercise voting rights with respect to portfolio securities held by a Segment or
Portfolio in accordance with written policies and procedures adopted by the Portfolio Manager,
which may be amended from time to time, and which at all times shall comply with the requirements
of applicable federal statutes and regulations and any related SEC guidance relating to such
statutes and regulations (collectively, “Proxy Voting Policies and Procedures”). The Portfolio
Manager shall vote proxies on behalf of each Portfolio in a manner deemed by the Portfolio Manager
to be in the best interests of each Portfolio pursuant to the Portfolio Manager’s written Proxy
Voting Policies and Procedures. It shall be understood that the Portfolio Manager is not required
to consider the activities of any other portfolio manager of the Portfolio or Fund with respect to
its duties under this provision. The Portfolio Manager shall provide disclosure regarding the Proxy
Voting Policies and Procedures in accordance with the requirements of Form N-1A for inclusion in
the Registration Statement. The Portfolio Manager shall report to the Investment Adviser in a
timely manner a record of all proxies voted, in such form and format that complies with acceptable
federal statutes and regulations (e.g., requirements of Form N-PX). The Portfolio Manager shall
certify at least annually or more often as may reasonably be requested by the Investment Adviser,
as to its compliance with its own Proxy Voting Policies and Procedures and applicable federal
statues and regulations.
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(q) will provide reasonable assistance to the Fund and the Fund’s Chief Compliance Officer
(“CCO”) in complying with Rule 38a-l under the 1940 Act. Specifically, the Portfolio Manager
represents and warrants that it shall maintain a compliance program in accordance with the
requirements of Rule 206(4)-7 under the Advisers Act, and shall provide the CCO with reasonable
access to information regarding the Portfolio Manager’s compliance program, which access shall
include on-site visits with the Portfolio Manager as may be reasonably requested from time to time.
In connection with the periodic review and annual report required to be prepared by the CCO
pursuant to Rule 38a-l, the Portfolio Manager agrees to provide certifications as may be reasonably
requested by the CCO related to the design and implementation of the Portfolio Manager’s compliance
program.
(r) will comply with the Fund’s policy on selective disclosure of portfolio holdings of the
Fund (the “Selective Disclosure Policy”), as provided in writing to the Portfolio Manager and as
may be amended from time to time. The Portfolio Manager agrees to provide a certification with
respect to compliance with the Fund’s Selective Disclosure Policy as may be reasonably requested by
the Fund from time to time. The Investment Adviser and the Fund acknowledge that the Portfolio
Manager manages other accounts, including other mutual funds, following the same investment
strategy as the Portfolio and that these accounts may have different portfolio holdings disclosure
policies.
(s) will use its best efforts to notify the Investment Adviser promptly in the event that, in
the judgment of the Portfolio Manager, Portfolio share transaction activity becomes disruptive to
the ability of the Portfolio Manager to effectively manage the assets of a Segment or 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 Segment or Portfolio with any current or future legal and
regulatory requirements related to the services provided by the Portfolio Manager hereunder.
(u) will provide such certifications to the Fund as the Fund or the Investment Adviser may
reasonably request related to the services provided by the Portfolio Manager hereunder, including
(but not limited to) certifications of compliance with Trust procedures, the Registration
Statement, and applicable securities regulations,
(v) will process class action paperwork for any security held within the Segment or Portfolio
managed by Portfolio Manager during its management at the direction of the Investment Adviser, as
the Investment Adviser may direct from time to time.
(w) as requested by the Investment Adviser, will provide reasonable assistance to the
Investment Adviser with respect to the annual audit of the Fund’s financial statements, including,
but not limited to: (i) providing broker contacts as needed for obtaining trade confirmations (in
particular with respect to investments in loans (including participations and assignments) and all
derivatives, including swaps); (ii) providing copies of all documentation relating to investments
in loans (including participations and assignments) and derivative contracts, within a reasonable
time after the execution of such documentation; (iii) providing
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assistance in obtaining trade confirmations in the event the Fund or the Fund’s independent
registered public accounting firm is unable to obtain such confirmations directly from the brokers;
and (iv) obtaining market quotations for investments (including investments in loans (including
participations and assignments) and derivatives) that are not readily ascertainable in the event
the Fund or the Fund’s independent registered public accounting firm is unable to obtain such
market quotations through independent means.
(x) will, on an annual basis, advise the Investment Adviser (i) if the Portfolio Manager acts
as sub-adviser to another U.S. registered mutual fund that follows the same investment strategy as
the Portfolio and (ii) if so, whether the Portfolio Manager’s fee rate is less than the rate
charged the Investment Adviser for management of the Portfolio.
3. Confidential Treatment. It is understood that any information or recommendation supplied
by, or produced by, the Portfolio Manager in connection with the performance of its obligations
hereunder is to be regarded by the Fund and the Investment Adviser as confidential and for use only
by the Investment Adviser and the Fund. Furthermore, except as required by law (including, but not
limited to semi-annual, annual or other filings made under the 0000 Xxx) or as agreed to by the
Investment Adviser and the Portfolio Manager, the Investment Adviser and Fund will not disclose,
in any manner whatsoever except as expressly authorized in this Agreement, any list of securities
held by the Portfolio for a period of at least 30 days after month end, except that the Portfolio’s
top 10 holdings may be disclosed 10 days after month end. In addition, the Investment Adviser or
the Fund may disclose, earlier than 30 days after month end, a list of the securities held by the
Portfolio to certain third parties who have entered into a confidentiality agreement with the Fund.
4. Disclosure about Portfolio Manager and Portfolio. The Portfolio Manager has reviewed the
current Registration Statement and agrees to promptly review future amendments to the Registration
Statement, including any supplements thereto, which relate to the Portfolio Manager, the Segment or
the Portfolio, filed with the SEC (or which will be filed with the SEC in the future) and
represents and warrants that, solely with respect to the disclosure respecting or relating to the
Portfolio Manager, including any performance information the Portfolio Manager provides that is
included in or serves as the basis for information included in the Registration Statement, such
Registration Statement contains as of the date hereof, and will contain as of the date of any
Registration Statement or supplement thereto, no untrue statement of any material fact and does not
omit any statement of material fact which was required to be stated therein or necessary to make
the statements contained therein not misleading. The Portfolio Manager further agrees to notify
the Investment Adviser and the Fund immediately of any material fact about the Portfolio Manager,
known to the Portfolio Manager respecting or relating to the Portfolio Manager, that is not
contained in the Registration Statement or prospectus for the Fund, or any amendment or supplement
thereto, or of any statement respecting or relating to the Portfolio Manager contained therein that
becomes untrue in any material respect. With respect to the disclosure respecting each Segment or
Portfolio, the Portfolio Manager represents and agrees that the description in the Fund’s
prospectus contained in the following sections: “The portfolio’s investment goal,” and “What the
portfolio invests in” (collectively, “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
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Portfolio Manager intends to manage each Segment or Portfolio, and the description of “Risks
you should be aware of’ (“Risk Description”) is consistent with risks known to the Portfolio
Manager that arise in connection with the manner in which the Portfolio Manager intends to manage
the Segment or Portfolio. The Portfolio Manager further agrees to notify the Investment Adviser and
the Fund promptly in the event that the Portfolio Manager becomes aware that the Portfolio
Description for a Portfolio is inconsistent in any material respect with the manner in which the
Portfolio Manager is managing the Segment or Portfolio, and in the event that the Risk Description
is inconsistent in any material respect with the risks known to the Portfolio Manager that arise in
connection with the manner in which the Portfolio Manager is managing the Segment or Portfolio. In
addition, the Portfolio Manager agrees to comply with the Investment Adviser’s reasonable request
for information regarding the personnel of the Portfolio Manager who are responsible for the
day-to-day management of a Portfolio’s assets.
5. Expenses. The Portfolio Manager shall bear all expenses incurred by it and its staff with
respect to all activities in connection with the performance of the Portfolio Manager’s services
under this Agreement, including but not limited to salaries, overhead, travel, preparation of Board
materials, review of marketing materials relating to Portfolio Manager or other information
provided by Portfolio Manager to the Investment Adviser and/or the Fund’s Distributor, and
marketing support. Portfolio Manager agrees to pay to the Investment Adviser the cost of generating
a prospectus supplement, which includes preparation, filing, printing, and distribution (including
mailing) of the supplement, if the Portfolio Manager makes any changes that require immediate
disclosure in the prospectus or any required regulatory documents by supplement, including changes
to its structure or ownership, to investment personnel, to investment style or management, or
otherwise (“Changes”), and if at the time of notification to the Fund by the Portfolio Manager of
such Changes, the Fund is not generating a supplement for other purposes or the Fund does not wish
to add such Changes to a pending supplement. In the event two or more portfolio managers each
require a supplement simultaneously, the expense of each supplement will be shared pro rata with
such other portfolio manager(s) based upon the number of pages required by each such portfolio
manager. All other expenses not specifically assumed by the Portfolio Manager hereunder or by the
Investment Adviser under the Advisory Agreement are borne by the applicable Portfolio of the Fund.
The Fund, the Portfolio Manager and the Investment Adviser shall not be considered as partners or
participants in a joint venture.
6. Compensation. For the services provided and the expenses borne by the Portfolio Manager
pursuant to this Agreement, the Investment Adviser will pay to the Portfolio Manager a fee in
accordance with Exhibit A attached to this Agreement. This fee will be computed and accrued daily
and payable monthly. The fees for any month during which this Agreement is in effect for less than
the entire month shall be pro-rated based on the number of days during such month that the
Agreement was in effect.
7. Seed Money. The Investment Adviser agrees that the Portfolio Manager shall not be
responsible for providing money for the initial capitalization of any Portfolio.
8. Compliance.
(a) The Portfolio Manager agrees that it shall immediately notify the Investment Adviser and
the Fund (i) in the event that the SEC, CFTC, or any banking or other
10
regulatory body has censured the Portfolio Manager; placed limitations upon its activities,
functions or operations; suspended or revoked its registration, if any, or ability to serve as an
investment adviser; or has commenced proceedings or an investigation that can reasonably be
expected to result in any of these actions; (ii) upon having a reasonable basis for believing that
a Portfolio has ceased to qualify or might not qualify as a regulated investment company under
Subchapter M of the Code; and (iii) upon having a reasonable basis for believing that the Portfolio
has ceased to comply with the diversification provisions of Section 817(h) of the Code or the
Regulations thereunder. The Portfolio Manager further agrees to notify the Investment Adviser and
Fund immediately of any material fact known to the Portfolio Manager respecting or relating to the
Portfolio Manager that is not contained in the Registration Statement, or any amendment or
supplement thereto, or of any statement contained therein that becomes untrue in any material
respect.
(b) The Investment Adviser agrees that it shall immediately notify the Portfolio Manager (i)
in the event that the SEC has censured the Investment Adviser or the Fund; placed limitations upon
either of their activities, functions, or operations; suspended or revoked the Investment Adviser’s
registration as an investment adviser; or has commenced proceedings or an investigation that may
result in any of these actions; (ii) upon having a reasonable basis for believing that a Portfolio
has ceased to qualify or might not qualify as a regulated investment company under Subchapter M of
the Code; or (iii) upon having a reasonable basis for believing that the Portfolio has ceased to
comply with the diversification provisions of Section 817(h) of the Code or the Regulations
thereunder.
9. Independent Contractor. The Portfolio Manager shall for all purposes herein be deemed to be
an independent contractor and shall, unless otherwise expressly provided herein or authorized by
the Investment Adviser from time to time, have no authority to act for or represent the Investment
Adviser in any way or otherwise be deemed its agent. The Portfolio Manager understands that unless
provided herein or authorized from time to time by the Fund, the Portfolio Manager shall have no
authority to act for or represent the Fund in any way or otherwise be deemed the Fund’s agent.
10. Books and Records. In compliance with the requirements of and to the extent required by
Section 31(a) of the 1940 Act and the rules thereunder, the Portfolio Manager hereby agrees that
all records which it maintains for the Portfolio are the property of the Fund and further agrees to
surrender promptly to the Fund any of such records upon the Fund’s or the Investment Adviser’s
request, although the Portfolio Manager may, at its own expense, make and retain a copy of such
records.
11. Cooperation. Each party to this Agreement agrees to cooperate with each other party and
with all appropriate governmental authorities having the requisite jurisdiction (including, but not
limited to, the SEC and state insurance authorities) in connection with any investigation or
inquiry relating to this Agreement or the Fund.
12. Responsibility and Control. Notwithstanding any other provision of this Agreement, it is
understood and agreed that the Fund reserves the right to direct, approve or disapprove any action
hereunder taken on its behalf by the Portfolio Manager, provided, however, that the Portfolio
Manager shall not be liable for any losses to the Fund resulting from
11
the Fund’s direction, or from the Fund’s disapproval of any action proposed to be taken by the
Portfolio Manager.
13. Services Not Exclusive. It is understood that the services of the Portfolio Manager and
its employees are not exclusive, and nothing in this Agreement shall prevent the Portfolio Manager
(or its employees or affiliates) from providing similar services to other clients, including
investment companies (whether or not their investment objectives and policies are similar to those
of the Portfolio) or from engaging in other activities.
14. Liability. (a) Except as may otherwise be required by the 1940 Act or the rules thereunder
or other applicable law, the Fund and the Investment Adviser agree that the Portfolio Manager, any
affiliated person of the Portfolio Manager, and each person, if any, who, within the meaning of
Section 15 of the 1933 Act, controls the Portfolio Manager, shall not be liable for, or subject to
any damages, expenses, or losses in connection with, any act or omission connected with or arising
out of any services rendered under this Agreement, except by reason of willful misfeasance, bad
faith, or gross negligence in the performance of the Portfolio Manager’s duties, or by reason of
reckless disregard of the Portfolio Manager’s obligations and duties under this Agreement.
Notwithstanding the foregoing, nothing contained in this Agreement shall constitute a waiver or
limitation of rights that the Fund may have under federal or state securities laws.
(b) The Portfolio Manager does not guarantee the future performance of the Portfolio or any
specific level of performance, the success of any investment decision or strategy that Portfolio
Manager may use, or the success of the Portfolio Manager’s overall management of the Portfolio. The
Investment Adviser and the Fund understand that investment decisions made for the Portfolio by the
Portfolio Manager are subject to various market, currency, economic, political and business risks,
and that those investment decisions will not always be profitable.
15. Indemnification.
(a) The Portfolio Manager agrees to indemnify and hold harmless, the Investment Adviser, any
affiliated person within the meaning of Section 2(a)(3) of the 1940 Act (“affiliated person”) of
the Investment Adviser, and each person, if any, who, within the meaning of Section 15 of the 1933
Act, controls (“controlling person”) the Investment Adviser (collectively, “PL Indemnified
Persons”) against any and all losses, claims, damages, liabilities or litigation (including
reasonable legal and other expenses), to which the Investment Adviser or such affiliated person or
controlling person may become subject under the 1933 Act, the 1940 Act, the Advisers Act, under any
other statute, at common law or otherwise, arising out of the Portfolio Manager’s responsibilities
to the Fund which (i) are based upon any willful misfeasance, bad faith, gross negligence, or
reckless disregard of, the Portfolio Manager’s obligations and/or duties under this Agreement by
the Portfolio Manager or by any of its directors, officers or employees, or any affiliate acting on
behalf of the Portfolio Manager (other than a PL Indemnified Person), or (ii) are based upon any
untrue statement or alleged untrue statement of a material fact contained in a Registration
Statement or prospectus covering the Shares of the Fund or any Portfolio, or any amendment thereof
or any supplement thereto, or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading, if such a
statement or omission was
12
made in reliance upon information furnished in writing to the Investment Adviser, the Fund, or
any affiliated person of the Fund by the Portfolio Manager or any affiliated person of the
Portfolio Manager (other than a PL Indemnified Person) provided, however, that in no case is the
Portfolio Manager’s indemnity in favor of the Investment Adviser or any affiliated person or
controlling person of the Investment Adviser deemed to protect such person against any liability to
which any such person would otherwise be subject by reason of willful misfeasance, bad faith, or
gross negligence in the performance of his duties, or by reason of his reckless disregard of
obligations and duties under this Agreement.
(b) The Investment Adviser agrees to indemnify and hold harmless the Portfolio Manager, any
affiliated person within the meaning of Section 2(a)(3) of the 1940 Act of the Portfolio Manager
and each person, if any, who, within the meaning of Section 15 of the 1933 Act controls
(“controlling person”) the Portfolio Manager (collectively, “Portfolio Manager Indemnified
Persons”) against any and all losses, claims, damages, liabilities or litigation (including
reasonable legal and other expenses) to which a Portfolio Manager Indemnified Person may become
subject under the 1933 Act, the 1940 Act, the Advisers Act, under any other statute, at common law
or otherwise, arising out of the Adviser’s responsibilities as Investment Adviser of the Fund which
(i) are based upon any willful misfeasance, bad faith or gross negligence by the Investment
Adviser, any of its directors, officers, or employees or any affiliate acting on behalf of the
Investment Adviser (other than a Portfolio Manager Indemnified Person), or (ii) are based upon any
untrue statement or alleged untrue statement of a material fact contained in a Registration
Statement or prospectus covering the Shares of the Fund or any Portfolio, or any amendment thereof
or any supplement thereto, or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading, unless
such a statement or omission was made in reliance upon information furnished in writing to the
Investment Adviser, the Fund, or any affiliated person of the Fund by the Portfolio Manager or any
affiliated person of the Portfolio Manager (other than a PL Indemnified Person) provided however,
that in no case is the Investment Adviser’s indemnity in favor of the Portfolio Manager Indemnified
Persons deemed to protect such person against any liability to which any such person would
otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence in the
performance of his duties, or by reason of his reckless disregard of obligations and duties under
this Agreement.
16. Duration and Termination. This Agreement shall become effective as of the date of
execution first written above, and shall continue in effect for two years and continue thereafter
on an annual basis with respect to each Segment or Portfolio; provided that such annual continuance
is specifically approved at least annually (a) by the vote of a majority of the Board, or (b) by
the vote of a majority of the outstanding voting shares of each Portfolio, and provided that
continuance is also approved by the vote of a majority of the Board who are not parties to this
Agreement or “interested persons” (as such term is defined in the 0000 Xxx) of the Fund, the
Investment Adviser, or the Portfolio Manager, cast in person at a meeting called for the purpose of
voting on such approval.
This Agreement may be terminated with respect to any Segment or Portfolio:
(a) by the Fund at any time with respect to the services provided by the Portfolio Manager,
without the payment of any penalty, by vote of a majority of the Board or by
13
a vote of a majority of the outstanding voting shares of the Fund or, with respect to a
particular Portfolio, by vote of a majority of the outstanding voting shares of such Portfolio,
upon sixty (60) days’ prior written notice to the Portfolio Manager and the Investment Adviser;
(b) by the Portfolio Manager at any time, without the payment of any penalty, upon sixty (60)
days’ prior written notice to the Investment Adviser and the Fund.
(c) by the Investment Adviser at any time, without the payment of any penalty, upon sixty (60)
days’ prior written notice to the Portfolio Manager and the Fund.
This Agreement will terminate automatically in event of its assignment under the 1940 Act and
any rules adopted by the SEC thereunder, but shall not terminate in connection with any transaction
not deemed an assignment. The Investment Adviser may rebalance the assets of a Portfolio in order
to maintain the initial allocations of a Segment upon [10] days notice to the Portfolio Manager.
Such notice shall not constitute a termination of the Agreement. In the event this Agreement is
terminated or is not approved in the manner described above (i) Portfolio Manager agrees to provide
all reports, certification and assistance called for pursuant to paragraphs 2(b), 2(h), 2(i), 2(k),
2(n), 2(p), and 2(q) within 30 business days of termination; and (ii) the Sections or Paragraphs
numbered 2(g) for a period of six years, and 2(m), 2(t), 9, 10, 13, 14, 16, 17, 18 and 19 of this
Agreement as well as any applicable provision of this Paragraph numbered 15 shall remain in effect.
17. Use of Name.
(a) It is understood that the name “Pacific Life Insurance Company”, “Pacific Life Fund
Advisors LLC”, “Pacific Asset Management”, and “Pacific Select Fund” and any abbreviated forms and
any derivatives thereof and any logos associated with those names are the valuable property of the
Investment Adviser and its affiliates, and that the Portfolio Manager shall not use such names (or
abbreviations, derivatives or logos) without the prior written approval of the Investment Adviser
and only so long as the Investment Adviser is an investment adviser to the Fund and/or the
Portfolio. Upon termination of this Agreement, the Portfolio Manager shall forthwith cease to use
such names (or abbreviations, derivatives or logos).
(b) It is understood that the name “X.X. Xxxxxx Investment Management Inc”., “JPMorgan Chase &
Co.”, “JPMorgan Asset Management” and any derivative thereof or any logo associated with those
names is the valuable property of the Portfolio Manager and that the Fund and the Investment
Adviser have the right to use such name (or derivative or logo), in the Fund’s prospectus, SAI and
Registration Statement or other filings, forms or reports required under applicable state or
federal securities, insurance, or other law, for so long as the Portfolio Manager is a Portfolio
Manager to the Fund and/or one of the Portfolio, provided, however, that the Fund may continue to
use the name of the Portfolio Manager in its Registrations Statement and other documents to the
extent deemed necessary by the Fund to comply with disclosure obligations under applicable law and
regulation. Neither the Fund nor the Investment Adviser shall use the Portfolio Manager’s name or
logo in promotional or sales related materials prepared by or on behalf of the Investment Adviser
or the Fund, without prior review and approval by the Portfolio Manager, which may not be
unreasonably withheld. Upon termination of this
14
Agreement, the Fund and the Investment Adviser shall forthwith cease to use such names (and
logo), except as provided for herein.
18. Limitation of Liability. A copy of the Declaration of Trust for the Fund is on file with
the Secretary of the State of Massachusetts. The Declaration of Trust has been executed on behalf
of the Fund by a Trustee of the Fund in his capacity as Trustee of the Fund and not individually.
The obligations of this Agreement with respect to each Portfolio shall be binding upon the assets
and property of each such Portfolio individually, and not jointly, and shall not be binding upon
any Trustee, officer, employee, agent or shareholder, whether past, present, or future, of the Fund
individually, or upon the Fund generally or upon any other portfolio of the Fund.
19. Notices. All notices and other communications hereunder shall be in writing sent by
facsimile first, if practicable, but shall only be deemed given if delivered in person or by
messenger, cable, certified mail with return receipt, or by a reputable overnight delivery service
which provides evidence of receipt to the parties at the following addresses (or at such other
address or number for a party as shall be specified by like notice):
| A. | if to the Portfolio Manager, to: X.X. Xxxxxx Investment Management, Inc. 000 Xxxx Xxxxxx Xxx Xxxx, XX 00000 Facsimile transmission number: (000) 000-0000 Attention: Mutual Funds Legal |
||
| B. | if to the Investment Adviser, to: Pacific Life Fund Advisors LLC 000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxx Xxxxx, XX 00000 Facsimile transmission number: (000) 000-0000 Attention: Xxxxx X. Xxxxx |
||
| C. | if to the Fund, to: Pacific Select Fund c/o Pacific Life Insurance Company 000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxx Xxxxx, XX 00000 Facsimile transmission number: (000) 000-0000 Attention: Xxxxx X. Xxxxx |
20. Force Majeure.
The Portfolio Manager shall not be liable for damages resulting from delayed or defective
performance when such delays arise out of causes beyond the control and without the fault or
negligence of the Portfolio Manager and could not have been reasonably prevented by the
15
Portfolio Manager through back-up systems and other business continuation and disaster
recovery procedures commonly employed by other SEC-registered investment advisers that meet
reasonable commercial standards in the investment company industry. Such causes may include, but
are not restricted to, Acts of God or of the public enemy, terrorism, acts of the State in its
sovereign capacity, fires, floods, earthquakes, power failure, disabling strikes, epidemics,
quarantine restrictions, and freight embargoes.
21. 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 0000 Xxx.
(b) The captions of this Agreement are included for convenience only and in no way define or
limit any of the provisions hereof or otherwise affect their construction or effect.
(c) To the extent permitted under Section 15 of this Agreement 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/ Xxxxxx X. Xxxxxxxx | By: | /s/ Xxxxxxx X. XxxXxxxx | |||||||
| Name: | Xxxxxx X. Xxxxxxxx | Name: | Xxxxxxx X. XxxXxxxx | |||||||
| Title: | VP, Fund Adviror Operations | Title: | AVP, Fund Advisor Compliance & Assistant Secretary | |||||||
16
X.X. XXXXXX INVESTMENT MANAGEMENT INC.
By:
|
/s/ Xxxxx Xxxxxx | |||
| Name: Xxxxx Xxxxxx | ||||
| Title: Vice President |
By:
|
/s/ Xxxxxx X. Xxxxxxxx | |||
| Name: Xxxxxx X. Xxxxxxxx | ||||
| Title: VP, Fund Adviror Operations |
17
Exhibit A
PACIFIC SELECT FUND
FEE SCHEDULE
FEE SCHEDULE
Effective: May 1, 2008
Portfolios [Segment]: Long/Short Large-Cap
The Investment Adviser will pay to the Portfolio Manager a monthly fee based on an annual
percentage of the average daily net assets of the Segment of the Long/Short Large Cap Portfolio
according to the following schedule:
0.65%
The fee for services shall be prorated for any portion of a year in which the Agreement is not
effective.
18
