PORTFOLIO MANAGEMENT AGREEMENT
Exhibit (d)(ee)
AGREEMENT made effective the 1st day of May, 2009 among Pacific Life Fund Advisors
LLC, a Delaware Limited Liability Company (“Investment Adviser”), and UBS Global Asset Management
(Americas) Inc. a Delaware Corporation (“Portfolio Manager”), and Pacific Select Fund, a
Massachusetts Business Trust (the “Fund”).
WHEREAS, the Fund is registered with the Securities and Exchange Commission (“SEC”) as an
open-end, management investment company under the Investment Company Act of 1940, as amended (the
“1940 Act”);
WHEREAS, the Investment Adviser is registered as an investment adviser under the Investment
Advisers Act of 1940, as amended (“Advisers Act”);
WHEREAS, the Portfolio Manager is registered with the SEC as an investment adviser under the
Advisers Act;
WHEREAS, the Fund has retained the Investment Adviser to render investment advisory services
to the various portfolios of the Fund pursuant to an Advisory Agreement, as amended, and such
Agreement authorizes the Investment Adviser to engage a portfolio manager to discharge the
Investment Adviser’s responsibilities with respect to the investment management of such portfolios,
a copy of which has been provided to the Portfolio Manager and is incorporated herein by reference;
WHEREAS, the Fund and the Investment Adviser desire to retain the Portfolio Manager to
furnish investment advisory services to one or more portfolios of the Fund, and the Portfolio
Manager is willing to furnish such services to such portfolios and the Investment Adviser in the
manner and on the terms hereinafter set forth; and
NOW THEREFORE, in consideration of the promises and mutual covenants herein contained, it is
agreed among the Fund, the Investment Adviser, and the Portfolio Manager as follows:
1. Appointment. The Fund and the Investment Adviser hereby appoint the Portfolio Manager to
provide investment advisory services to the portfolios of the Fund listed on Exhibit A attached
hereto (each, a “Portfolio”) for the periods and on the terms set forth in this Agreement. The
Portfolio Manager accepts such appointment and agrees to furnish the services herein set forth for
the compensation herein provided.
In the event the Investment Adviser wishes to retain the Portfolio Manager to render
investment advisory services to one or more portfolios of the Fund other than the Portfolio, the
Investment Adviser shall notify the Portfolio Manager in writing and shall revise Exhibit A to
reflect such additional portfolio(s). If the Portfolio Manager is willing to render such services,
it shall notify the Fund and the Investment Adviser in writing, whereupon such portfolio shall
become a Portfolio hereunder, and be subject to this Agreement.
2. Portfolio Manager Duties. Subject to the supervision of the Fund’s Board of Trustees (the
“Board”) and the Investment Adviser, the Portfolio Manager will provide a continuous investment
program for the Portfolio and determine the composition of the assets of the Portfolio. The
Portfolio Manager will provide investment research and analysis, which may include computerized
investment methodology, and will conduct a continuous program of evaluation, investment, sales, and
reinvestment of the Portfolio’s assets by determining the securities, cash and other investments,
including futures and options contracts, if any, that shall be purchased, entered into, retained,
sold, closed, or exchanged for the Portfolio, when these
transactions should be executed, and what portion of the assets of the Portfolio should be
held in the various securities and other investments in which it may invest, and the Portfolio
Manager is hereby authorized to execute and perform such services on behalf of the Portfolio. To
the extent permitted by the written investment policies of the Portfolio, the Portfolio Manager
shall make decisions for the Portfolio as to foreign currency matters and make determinations as to
the retention or disposition of foreign currencies or securities or other instruments denominated
in foreign currencies, or derivative instruments based upon foreign currencies, including forward
foreign currency contracts and options and futures on foreign currencies and shall execute and
perform the same on behalf of the Portfolio. The Portfolio Manager is authorized to and shall
exercise tender offers, exchange offers and vote proxies on behalf of each Portfolio, each as the
Portfolio Manager determines is in the best interest of the Portfolio. The Portfolio Manager is
authorized to open brokerage accounts on behalf of the Portfolio in accordance with Fund
procedures. The Portfolio Manager is authorized to enter into futures account agreements, ISDA
master agreements and related documents, and to open accounts and take other necessary or
appropriate actions related thereto, in accordance with Fund procedures.
In performing these duties, the Portfolio Manager:
(a) will conform with (1) the 1940 Act and all rules and regulations thereunder, and releases
and interpretations related thereto (including any no-action letters and exemptive orders which
have been granted by the SEC to the Fund, to the Investment Adviser (as provided to the Portfolio
Manager by the Investment Adviser), or to the Portfolio Manager), (2) applicable rules and
regulations under the Securities Exchange Act of 1934, as amended (the “1934 Act”) (3) all other
applicable federal and state laws and regulations pertaining to investment vehicles underlying
variable annuity and/or variable life insurance contracts, (4) any applicable written procedures,
policies and guidelines adopted by the Board and furnished to the Portfolio Manager, (5) the Fund’s
objectives, investment policies and investment restrictions as stated in the Fund’s Prospectus and
Statement of Additional Information as supplemented or amended from time to time, as furnished to
the Portfolio Manager, (6) the provisions of the Fund’s Registration Statement filed on Form N-1A
under the Securities Act of 1933 (the “1933 Act”) and the 1940 Act, as supplemented or amended from
time to time (the “Registration Statement”), (7) Section 851(b)(2) and (3) of Subchapter M of the
Internal Revenue Code of 1986, as amended (the “Code”), (8) the provisions of Section 817(h) of the
Code, applicable to the Portfolio; and (9) any other applicable laws and regulations, including
without limitation, proxy voting regulations. To the extent that the Portfolio Manager engages in
transactions that require segregation of assets or other arrangements, including but not limited
to, options, futures contracts, short sales or borrowing transactions, the Portfolio Manager shall
segregate assets in accordance with the 1940 Act, if necessary, based upon trading strategies and
positions the Portfolio Manager employs on behalf of the Portfolio, as well as to segregate assets,
if necessary, in accordance with the 1934 Act and any other requirements of broker/dealers who may
execute transactions for the Portfolio in connection therewith. Until the Investment Adviser
delivers any supplements or amendments to the Portfolio Manager, the Portfolio Manager shall be
fully protected in relying on the Fund’s Registration Statement previously furnished by the
Investment Adviser to the Portfolio Manager. In managing the Portfolio in accordance with the
requirements of this Section 2, the Portfolio Manager shall be entitled to receive and act upon
advice of counsel to the Fund, to the Investment Adviser or to the Portfolio Manager that is also
acceptable to the Investment Adviser.
(b) will (i) identify each position in the Portfolio that Portfolio Manager treats as stock in
a Passive Foreign Investment Company (“PFIC”), as that term is defined in Section 1296 of the Code,
and (ii) inform the Investment Adviser at least annually (or more often and by such date(s) as the
Investment Adviser shall reasonably request) of any stock in a PFIC.
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(c) is responsible, in connection with its responsibilities under this Section 2, for
decisions to buy and sell securities and other investments for the Portfolio, for broker-dealer and
futures commission merchant (“FCM”) selection, and for negotiation of commission rates. The
Portfolio Manager’s primary consideration in effecting a security or other transaction will be to
seek to obtain the best execution for the Portfolio, taking into account the factors specified in
the Prospectus and Statement of Additional Information for the Fund, as they may be amended or
supplemented from time to time and furnished to the Portfolio Manager. Subject to such policies as
the Board may determine and consistent with Section 28(e) of the Securities Exchange Act of 1934,
as amended (the “1934 Act”), the Portfolio Manager shall not be deemed to have acted unlawfully or
to have breached any duty created by this Agreement or otherwise solely by reason of its having
caused the Portfolio to pay a broker or dealer, acting as agent, for effecting a Portfolio
transaction at a price in excess of the amount of commission another broker or dealer would have
charged for effecting that transaction, if the Portfolio Manager determines in good faith that such
amount of commission was reasonable in relation to the value of the brokerage and research services
provided by such broker or dealer, viewed in terms of either that particular transaction or the
Portfolio Manager’s (or its affiliates’) overall responsibilities with respect to the Portfolio and
to its other clients as to which it exercises investment discretion. To the extent consistent with
these standards, and in accordance with Section 11(a) of the 1934 Act and Rule lla2-2(T)
thereunder, and subject to any other applicable laws and regulations including Section 17(e) of the
1940 Act, the Portfolio Manager is further authorized to place orders on behalf of the Portfolio
through the Portfolio Manager if the Portfolio Manager is registered as a broker or dealer with the
SEC or as a FCM with the Commodities Futures Trading Commission (“CFTC”), through any of its
affiliates that are brokers or dealers or FCMs or such other entities which provide similar
services in foreign countries, or through such brokers and dealers that also provide research or
statistical research and material, or other services to the Portfolio or the Portfolio Manager.
Such allocation shall be in such amounts and proportions as the Portfolio Manager shall determine
consistent with the above standards, and, upon request, the Portfolio Manager will report on said
allocation to the Investment Adviser and Board, indicating the brokers, dealers or FCMs to which
such allocations have been made and the basis therefor. The Portfolio Manager shall not direct
brokerage to any broker-dealer in recognition of, or otherwise take into account in making
brokerage allocation decisions, sales of shares of a Portfolio or of any other investment vehicle
by that broker-dealer.
(d) may, on occasions when the purchase or sale of a security is deemed to be in the best
interest of a Portfolio as well as any other investment advisory clients, to the extent permitted
by applicable laws and regulations, but shall not be obligated to, aggregate the securities to be
so sold or purchased with those of its other clients where such aggregation is not inconsistent
with the policies set forth in the Registration Statement as furnished to the Portfolio Manager. In
such event, allocation of the securities so purchased or sold, as well as the expenses incurred in
the transaction, will be made by the Portfolio Manager in a manner that is fair and equitable and
consistent with the Portfolio Manager’s fiduciary obligations to the Portfolio and to such other
clients.
(e) will, in connection with the purchase and sale of securities for the Portfolio, together
with the Investment Adviser, arrange for the transmission to the custodian and recordkeeping agent
for the Fund, on a daily basis, such confirmation(s), trade tickets, and other documents and
information, including, but not limited to, CUSIP, SEDOL, or other numbers that identify securities
to be purchased or sold on behalf of the Portfolio, as may be reasonably necessary to enable the
custodian and recordkeeping agent to perform its administrative and recordkeeping responsibilities
with respect to the Portfolio, and with respect to Portfolio securities to be purchased or sold
through the Depository Trust Company, will arrange for the automatic transmission of the
confirmation of such trades to the Fund’s custodian and recordkeeping agent, and, if required, the
Investment Adviser. The Portfolio Manager agrees to comply with such rules, procedures and time
frames as the Fund’s custodian
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may reasonably set or provide with respect to the clearance and settlement of transactions for
a Portfolio, including but not limited to submission of trade tickets. Any Portfolio assets shall
be delivered directly to the Fund’s custodian.
(f) will provide reasonable assistance to the Investment Adviser, custodian or recordkeeping
agent for the Fund in determining or confirming, consistent with the procedures and policies stated
in the Fund’s valuation procedures and/or the Registration Statement, the value of any portfolio
securities or other assets of the Portfolio for which the Investment Adviser, custodian or
recordkeeping agent seeks assistance from the Portfolio Manager or identifies for review by the
Portfolio Manager. Such reasonable assistance shall include (but is not limited to): (i)
designating and providing timely access, on an as-needed basis and upon the reasonable request of
the Investment Adviser or custodian, to one or more employees of the Portfolio Manager who are
knowledgeable about the security/issuer, its financial condition, trading and/or other relevant
factors for valuation, which employees shall be available for consultation when the Board’s
Valuation Committee convenes; (ii) notifying the Investment Adviser in the event any Portfolio
security’s value does not appear to reflect corporate actions, news, significant events or such
security otherwise requires review to determine if fair valuation is necessary under the Fund’s
procedures; (iii) applying to the Portfolio’s assets the procedures of the Portfolio Manager used
for valuing the assets held by other accounts under management of the Portfolio Manager and
notifying the Investment Adviser of the valuation of such assets determined under such procedures,
including in the event that the application of such procedures would result in a determination of
fair value with respect to any asset held by the Portfolio where a market quotation is not readily
available or is deemed to be unreliable with respect to such asset; (iv) upon the request of the
Investment Adviser or custodian, assisting in obtaining bids and offers or quotes from
broker/dealers or market-makers with respect to securities held by the Portfolio; (v) verifying
pricing and providing fair valuations or recommendations for fair valuations in accordance with the
Fund’s valuation procedures, as they may be amended from time to time; and (vi) maintaining
adequate records and written backup information with respect to the securities valuation services
provided hereunder, and providing such information to the Investment Adviser or the Fund upon
request. Such records shall be deemed to be Fund records.
(g) will maintain and preserve such records related to each Portfolio’s transactions as
required under the 1940 Act and the Advisers Act. The Portfolio Manager will make available to the
Fund and the Investment Adviser promptly upon request, any of the Portfolio’s investment records
and ledgers maintained by the Portfolio Manager (which shall not include the records and ledgers
maintained by the custodian and recordkeeping agent for the Fund), as are necessary to assist the
Fund and the Investment Adviser in complying with requirements of the 1940 Act and the Advisers
Act, as well as other applicable laws, and will furnish to regulatory authorities having the
requisite authority any information or reports in connection with such services which may be
requested in order to ascertain whether the operations of the Fund are being conducted in a manner
consistent with applicable laws and regulations.
(h) will regularly report to the Board on the investment program for the Portfolio and the
issuers and securities represented in the Portfolio, and will furnish the Board, with respect to
the Portfolio, such periodic and special reports as the Board and the Investment Adviser may
reasonably request, including, but not limited to, reports concerning transactions and performance
of each Portfolio, a quarterly compliance checklist, reports regarding compliance with the Fund’s
procedures pursuant to Rules 17e-l, 17a-7, 10f-3 and 12d3-1 under the 1940 Act, fundamental
investment restrictions, procedures for opening brokerage accounts and commodity trading accounts,
liquidity determination of securities purchased pursuant to Rule 144A and 4(2) commercial paper,
IOs/POs, confirmation of the liquidity of all other securities in the Funds, and compliance with
the Portfolio Manager’s Code of Ethics, and such
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other reports or certifications that the Investment Adviser may reasonably request from time
to time.
(i) will adopt a written Code of Ethics complying with the requirements of Rule 17j-l under
the 1940 Act and Rule 204A-l under the Advisers Act and will provide the Investment Adviser and the
Fund with a copy of the Code of Ethics, together with evidence of its adoption. Within 30 days of
the end of each calendar quarter during which this Agreement remains in effect, the chief
compliance officer and/or president and/or managing director (as the Investment Adviser determines
appropriate) of the Portfolio Manager shall certify to the Investment Adviser that the Portfolio
Manager has complied with the requirements of Rule 17j-l during the previous calendar quarter and
that there have been no violations of the Code of Ethics or, if a violation has occurred, that
appropriate action has been taken in response to such violation. Upon written request of the
Investment Adviser or the Fund, the Portfolio Manager shall permit representatives of the
Investment Adviser and the Trust to examine the reports (or summaries of the reports) required to
be made under the Code of Ethics and other records evidencing enforcement of the Code of Ethics.
(j) will provide to the Investment Adviser a copy of the Portfolio Manager’s Form ADV, and any
supplements or amendments thereto, as filed with the SEC, on an annual basis (or more frequently if
requested by the Investment Adviser or the Board) including any portion which contains disclosure
of legal or regulatory actions. The Portfolio Manager represents and warrants that it is a duly
registered investment adviser under the Advisers Act and will notify the Investment Adviser
immediately if any action is brought by any regulatory body which would affect that registration.
The Portfolio Manager will provide a list of persons whom the Portfolio Manager wishes to have
authorized to give written and/or oral instructions to Custodians of assets for the Portfolio.
(k) will be responsible for the preparation and filing of such reports with respect to the
assets of the Portfolio reflecting holdings over which the Portfolio Manager or its affiliates have
investment discretion as may be required from time to time, including but not limited to Schedule
13G, Form 13F and Form SH.
(l) will not permit any employee of the Portfolio Manager to have any material involvement
with the management of the Portfolio if such employee has:
(i) been, within the last ten (10) years, convicted of or acknowledged commission of any
felony or misdemeanor (a) involving the purchase or sale of any security, (b) involving
embezzlement, fraudulent conversion, or misappropriation of funds or securities, (c) involving
sections 1341, 1342 or 1343 of Title 18 of the U.S. Code, or (d) arising out of such person’s
conduct as an underwriter, broker, dealer, investment adviser, municipal securities dealer,
government securities broker, government securities dealer, transfer agent, or entity or person
required to be registered under the Commodity Exchange Act, or as an affiliated person, salesman,
or employee or officer or director of any investment company, bank, insurance company, or entity or
person required to be registered under the Commodity Exchange Act;
(ii) been permanently or temporarily enjoined by reason of any misconduct, by order, judgment,
or decree of any court of competent jurisdiction, from acting as an underwriter, broker, dealer,
investment adviser, municipal securities dealer, government securities broker, government
securities dealer, transfer agent, or entity or person required to be registered under the
Commodity Exchange Act, or as an affiliated person, salesman or employee of any investment company,
bank, insurance company, or entity or person required to be registered under the Commodity Exchange
Act, or from engaging in or continuing any conduct or practice in connection with any such activity
or in connection with the purchase or sale of any security.
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(m) will not disclose or use any records or information obtained pursuant to this Agreement
(excluding investment research and investment advice) in any manner whatsoever except as expressly
authorized in this Agreement or in the ordinary course of business in connection with placing
orders for the purchase and sale of securities or obtaining investment licenses in various
countries or the opening of custody accounts and dealing with settlement agents in various
countries, and will keep confidential any information obtained pursuant to the Agreement, and
disclose such information only if the Board has authorized such disclosure, or if such disclosure
is required by applicable federal or state law or regulations or regulatory authorities having the
requisite authority. The Fund and the Investment Adviser will not disclose or use any records or
information with respect to the Portfolio Manager obtained pursuant to this Agreement, in any
manner whatsoever except as expressly authorized in this Agreement, and will keep confidential any
information obtained pursuant to this Agreement, and disclose such information only as expressly
authorized in this Agreement, if the Board has authorized such disclosure, or if such disclosure is
required by applicable federal or state law or regulations or regulatory authorities having the
requisite authority.
(n) will assist the Investment Adviser, the Fund, and any of its or their trustees, directors,
officers, and/or employees in complying with the provisions of the Xxxxxxxx-Xxxxx Act of 2002 to
the extent such provisions relate to the services to be provided by, and the obligations of, the
Portfolio Manager hereunder. Specifically, and without limitation to the foregoing, the Portfolio
Manager agrees to provide certifications to the principal executive and financial officers of the
Fund (the “certifying officers”) that correspond to and/or support the certifications required to
be made by the certifying officers in connection with the preparation and/or filing of the Fund’s
Form N-CSRs, N-Qs, N-SARs, shareholder reports, financial statements, and other disclosure
documents or regulatory filings, in such form and content as the Fund shall reasonably request or
in accordance with procedures adopted by the Fund.
(o) is, along with its affiliated persons, permitted to enter into transactions with the other
portfolios of the Fund and affiliated persons of those other portfolios of the Fund (collectively,
the “Other Portfolios”). In doing so, the Portfolio Manager is prohibited from consulting with the
Investment Adviser or the portfolio managers of these Other Portfolios concerning securities
transactions of the Portfolio except for the purpose of complying with the conditions of Rule
12d3-1(a) and (b) under the 1940 Act.
(p) will exercise voting rights with respect to portfolio securities held by a Portfolio in
accordance with written policies and procedures adopted by the Portfolio Manager, which may be
amended from time to time, and which at all times shall comply with the requirements of applicable
federal statutes and regulations and any related SEC guidance relating to such statutes and
regulations (collectively, “Proxy Voting Policies and Procedures”). The Portfolio Manager shall
vote proxies on behalf of each Portfolio in a manner deemed by the Portfolio Manager to be in the
best interests of each Portfolio pursuant to the Portfolio Manager’s written Proxy Voting Policies
and Procedures. The Portfolio Manager shall provide disclosure regarding the Proxy Voting Policies
and Procedures in accordance with the requirements of Form N-1A for inclusion in the Registration
Statement. The Portfolio Manager shall report to the Investment Adviser in a timely manner a record
of all proxies voted, in such form and format that complies with acceptable federal statutes and
regulations (e.g., requirements of Form N-PX). The Portfolio Manager shall certify at least
annually or more often as may reasonably be requested by the Investment Adviser, as to its
compliance with its own Proxy Voting Policies and Procedures and applicable federal statues and
regulations.
(q) will provide reasonable assistance to the Fund and the Fund’s Chief Compliance Officer
(“CCO”) in complying with Rule 38a-l under the 1940 Act. Specifically, the Portfolio Manager
represents and warrants that it shall maintain a compliance program in
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accordance with the requirements of Rule 206(4)-7 under the Advisers Act, and shall provide
the CCO with reasonable access to information regarding the Portfolio Manager’s compliance program,
which access shall include on-site visits with the Portfolio Manager as may be reasonably requested
from time to time. In connection with the periodic review and annual report required to be prepared
by the CCO pursuant to Rule 38a-l, the Portfolio Manager agrees to provide certifications as may be
reasonably requested by the CCO related to the design and implementation of the Portfolio Manager’s
compliance program.
(r) will comply with the Fund’s policy on selective disclosure of portfolio holdings of the
Fund (the “Selective Disclosure Policy”), as provided in writing to the Portfolio Manager and as
may be amended from time to time. The Portfolio Manager agrees to provide a certification with
respect to compliance with the Fund’s Selective Disclosure Policy as may be reasonably requested by
the Fund from time to time.
(s) will use its best efforts to notify the Investment Adviser promptly in the event that, in
the judgment of the Portfolio Manager, Portfolio share transaction activity becomes disruptive to
the ability of the Portfolio Manager to effectively manage the assets of a Portfolio consistent
with the Portfolio’s investment objectives and policies.
(t) will provide assistance as may be reasonably requested by the Investment Adviser in
connection with compliance by the Portfolio with any current or future legal and regulatory
requirements related to the services provided by the Portfolio Manager hereunder.
(u) will provide such certifications to the Fund as the Fund or the Investment Adviser may
reasonably request related to the services provided by the Portfolio Manager hereunder, including
(but not limited to) certifications of compliance with Trust procedures, the Registration
Statement, and applicable securities regulations.
(v) will monitor and promptly inform the Investment Adviser of developments relating to class
action litigation involving securities held by the Portfolio, and upon request by the Investment
Adviser, research and confirm to the Investment Adviser whether the Portfolio held or traded in a
particular security, on any particular day or during any particular timeframe within the term of
this Agreement, as the Investment Adviser may specify; and Portfolio Manager will provide relevant
trade information (for example, a schedule of purchases and sales and/or holdings) for such
security.
(w) will provide reasonable assistance to the Investment Adviser with respect to the annual
audit of the Fund’s financial statements, including, but not limited to: (i) providing broker
contacts as needed for obtaining trade confirmations (in particular with respect to investments in
loans (including participations and assignments) and all derivatives, including swaps);
(ii) providing copies of all documentation relating to investments in loans (including
participations and assignments) and derivative contracts, within a reasonable time after the
execution of such documentation; (iii) providing assistance in obtaining trade confirmations in the
event the Fund or the Fund’s independent registered public accounting firm is unable to obtain such
confirmations directly from the brokers; and (iv) obtaining market quotations for investments
(including investments in loans (including participations and assignments) and derivatives) that
are not readily ascertainable in the event the Fund or the Fund’s independent registered public
accounting firm is unable to obtain such market quotations through independent means.
(x) will, on an annual basis, advise the Investment Adviser (i) if the Portfolio Manager acts
as sub-adviser to another U.S. registered mutual fund that follows the same investment strategy as
the Portfolio and (ii) if so, whether the Portfolio Manager’s fee rate is less than the rate
charged the Investment Adviser for management of the Portfolio.
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(y) will, for the duration of this Agreement, not directly or indirectly solicit or induce any
personnel of Investment Adviser or its affiliated companies to leave the employ of Investment
Adviser or affiliated company. After personnel of Investment Adviser or an affiliate cease to be
in the employ of Investment Adviser or affiliate, Portfolio Manager shall be free to directly or
indirectly employ or retain such personnel in any capacity, so long as Portfolio Manager did not
solicit or induce such personnel to leave the employ of Investment Adviser or its affiliate.
3. Disclosure about Portfolio Manager and Portfolio. The Portfolio Manager has reviewed the
current Registration Statement and agrees to promptly review future amendments to the Registration
Statement, including any supplements thereto, which relate to the Portfolio Manager or the
Portfolio, filed with the SEC (or which will be filed with the SEC in the future) and represents
and warrants that, solely with respect to the disclosure respecting or relating to the Portfolio
Manager, including any performance information the Portfolio Manager provides that is included in
or serves as the basis for information included in the Registration Statement, such Registration
Statement contains as of the date hereof, and will contain as of the date of any Registration
Statement or supplement thereto, no untrue statement of any material fact and does not omit any
statement of material fact which was required to be stated therein or necessary to make the
statements contained therein not misleading. The Portfolio Manager further agrees to notify the
Investment Adviser and the Fund immediately of any material fact about the Portfolio Manager, known
to the Portfolio Manager respecting or relating to the Portfolio Manager, that is not contained in
the Registration Statement or prospectus for the Fund, or any amendment or supplement thereto, or
of any statement respecting or relating to the Portfolio Manager contained therein that becomes
untrue in any material respect. With respect to the disclosure respecting each Portfolio, the
Portfolio Manager represents and agrees that the descriptions in the Fund’s Prospecctus, as of the
date of this Agreement and as of the date of any Registration Statement or supplement thereto, as
furnished to the Portfolio Manager, (a) about the Portfolio’s investment goal and main investments
(“Portfolio Description”) is consistent with the manner in which the Portfolio Manager intends to
manage each Portfolio, and (b) about the Portfolio’s risks (“Risk Description”) is consistent with
risks known to the Portfolio Manager that arise in connection with the manner in which the
Portfolio Manager intends to manage the Portfolio. The Portfolio Manager further agrees to notify
the Investment Adviser and the Fund promptly in the event that the Portfolio Manager becomes aware
that the Portfolio Description for a Portfolio is inconsistent in any material respect with the
manner in which the Portfolio Manager is managing the Portfolio, and in the event that the Risk
Description is inconsistent in any material respect with the risks known to the Portfolio Manager
that arise in connection with the manner in which the Portfolio Manager is managing the Portfolio.
In addition, the Portfolio Manager agrees to comply with the Investment Adviser’s reasonable
request for information regarding the personnel of the Portfolio Manager who are responsible for
the day-to-day management of a Portfolio’s assets.
4. Expenses. The Portfolio Manager shall bear all expenses incurred by it and its staff with
respect to all activities in connection with the performance of the Portfolio Manager’s services
under this Agreement, including but not limited to salaries, overhead, travel, preparation of Board
materials, review of marketing materials relating to Portfolio Manager or other information
provided by Portfolio Manager to the Investment Adviser and/or the Funds Distributor, and marketing
support. Portfolio Manager agrees to pay to the Investment Adviser the cost of generating a
prospectus supplement, which includes preparation, filing, printing, and distribution (including
mailing) of the supplement, if the Portfolio Manager makes any changes that require immediate
disclosure in the prospectus or any required regulatory documents by supplement, including changes
to its structure or ownership, to investment personnel, to investment style or management, or
otherwise (“Changes”), and at the time of notification to the Fund by the Portfolio Manager of such
Changes, the Fund is not generating a supplement for other purposes or the Fund does not wish to
add such Changes to a pending supplement. In the
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event two or more portfolio managers each require a supplement simultaneously, the expense of
each supplement will be shared pro rata with such other portfolio manager(s) based upon the number
of pages required by each such portfolio manager. All other expenses not specifically assumed by
the Portfolio Manager hereunder or by the Investment Adviser under the Advisory Agreement are borne
by the applicable Portfolio of the Fund. The Fund, the Portfolio Manager and the Investment Adviser
shall not be considered as partners or participants in a joint venture.
5. Compensation. For the services provided and the expenses borne by the Portfolio Manager
pursuant to this Agreement, the Investment Adviser will pay to the Portfolio Manager a fee in
accordance with Exhibit A attached to this Agreement. This fee will be computed and accrued daily
and payable monthly. The fees for any month during which this Agreement is in effect for less than
the entire month shall be pro-rated based on the number of days during such month that the
Agreement was in effect.
6. Seed Money. The Investment Adviser agrees that the Portfolio Manager shall not be
responsible for providing money for the initial capitalization of any Portfolio.
7. Compliance.
(a) The Portfolio Manager agrees that it shall immediately notify the Investment Adviser and
the Fund (i) in the event that the SEC, CFTC, or any banking or other regulatory body has censured
the Portfolio Manager; placed limitations upon its activities, functions or operations; suspended
or revoked its registration, if any, or ability to serve as an investment adviser; or has commenced
proceedings or an investigation that can reasonably be expected to result in any of these actions;
(ii) upon having a reasonable basis for believing that a Portfolio has ceased to qualify or might
not qualify as a regulated investment company under Subchapter M of the Code; and (iii) upon having
a reasonable basis for believing that the Portfolio has ceased to comply with the diversification
provisions of Section 817(h) of the Code or the Regulations thereunder. The Portfolio Manager
further agrees to notify the Investment Adviser and Fund immediately of any material fact known to
the Portfolio Manager respecting or relating to the Portfolio Manager that is not contained in the
Registration Statement, or any amendment or supplement thereto, or of any statement contained
therein that becomes untrue in any material respect.
(b) The Investment Adviser agrees that it shall immediately notify the Portfolio Manager (i)
in the event that the SEC has censured the Investment Adviser or the Fund; placed limitations upon
either of their activities, functions, or operations; suspended or revoked the Investment Adviser’s
registration as an investment adviser; or has commenced proceedings or an investigation that may
result in any of these actions; (ii) upon having a reasonable basis for believing that a Portfolio
has ceased to qualify or might not qualify as a regulated investment company under Subchapter M of
the Code; or (iii) upon having a reasonable basis for believing that the Portfolio has ceased to
comply with the diversification provisions of Section 817(h) of the Code or the Regulations
thereunder.
8. Independent Contractor. The Portfolio Manager shall for all purposes herein be deemed to be
an independent contractor and shall, unless otherwise expressly provided herein or authorized by
the Investment Adviser from time to time, have no authority to act for or represent the Investment
Adviser in any way or otherwise be deemed its agent. The Portfolio Manager understands that unless
provided herein or authorized from time to time by the Fund, the Portfolio Manager shall have no
authority to act for or represent the Fund in any way or otherwise be deemed the Fund’s agent.
9. Books and Records. In compliance with the requirements of and to the extent required by
Section 31(a) of the 1940 Act and the rules thereunder, the Portfolio Manager
9
hereby agrees that all records which it maintains for the Portfolio are the property of the
Fund and further agrees to surrender promptly to the Fund any of such records upon the Fund’s or
the Investment Adviser’s request, although the Portfolio Manager may, at its own expense, make and
retain a copy of such records.
10. Cooperation. Each party to this Agreement agrees to cooperate with each other party and
with all appropriate governmental authorities having the requisite jurisdiction (including, but not
limited to, the SEC and state insurance authorities) in connection with any investigation or
inquiry relating to this Agreement or the Fund.
11. Responsibility and Control. Notwithstanding any other provision of this Agreement, it is
understood and agreed that the Fund reserves the right to direct, approve or disapprove any action
hereunder taken on its behalf by the Portfolio Manager, provided, however, that the Portfolio
Manager shall not be liable for any losses to the Fund resulting from the Fund’s direction, or from
the Fund’s disapproval of any action proposed to be taken by the Portfolio Manager.
12. Services Not Exclusive. It is understood that the services of the Portfolio Manager and
its employees are not exclusive, and nothing in this Agreement shall prevent the Portfolio Manager
(or its employees or affiliates) from providing similar services to other clients, including
investment companies (whether or not their investment objectives and policies are similar to those
of the Portfolio) or from engaging in other activities.
13. Liability. Except as may otherwise be required by the 1940 Act or the rules thereunder or
other applicable law, the Fund and the Investment Adviser agree that the Portfolio Manager, any
affiliated person of the Portfolio Manager, and each person, if any, who, within the meaning of
Section 15 of the 1933 Act, controls the Portfolio Manager, shall not be liable for, or subject to
any damages, expenses, or losses in connection with, any act or omission connected with or arising
out of any services rendered under this Agreement, except by reason of willful misfeasance, bad
faith, or gross negligence in the performance of the Portfolio Manager’s duties, or by reason of
reckless disregard of the Portfolio Manager’s obligations and duties under this Agreement.
Notwithstanding the foregoing, nothing contained in this Agreement shall constitute a waiver or
limitation of rights that the Fund may have under federal or state securities laws.
14. Indemnification.
(a) The Portfolio Manager agrees to indemnify and hold harmless, the Investment Adviser, any
affiliated person within the meaning of Section 2(a)(3) of the 1940 Act (“affiliated person”) of
the Investment Adviser, and each person, if any, who, within the meaning of Section 15 of the 1933
Act, controls (“controlling person”) the Investment Adviser (collectively, “PL Indemnified
Persons”) against any and all losses, claims, damages, liabilities or litigation (including
reasonable legal and other expenses), to which the Investment Adviser or such affiliated person or
controlling person may become subject under the 1933 Act, the 1940 Act, the Advisers Act, under any
other statute, at common law or otherwise, arising out of the Portfolio Manager’s responsibilities
to the Fund which (i) are based upon any willful misfeasance, bad faith, negligence, or reckless
disregard of, the Portfolio Manager’s obligations and/or duties under this Agreement by the
Portfolio Manager or by any of its directors, officers or employees, or any affiliate acting on
behalf of the Portfolio Manager (other than a PL Indemnified Person), or (ii) are based upon any
untrue statement or alleged untrue statement of a material fact contained in a Registration
Statement or prospectus covering the Shares of the Fund or any Portfolio, or any amendment thereof
or any supplement thereto, or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading, if such a
statement or omission was made in
10
reliance upon information furnished in writing to the Investment Adviser, the Fund, or any
affiliated person of the Fund by the Portfolio Manager or any affiliated person of the Portfolio
Manager (other than a PL Indemnified Person) provided, however, that in no case is the Portfolio
Manager’s indemnity in favor of the Investment Adviser or any affiliated person or controlling
person of the Investment Adviser deemed to protect such person against any liability to which any
such person would otherwise be subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of his duties, or by reason of his reckless disregard of obligations
and duties under this Agreement.
(b) The Investment Adviser agrees to indemnify and hold harmless the Portfolio Manager, any
affiliated person within the meaning of Section 2(a)(3) of the 1940 Act of the Portfolio Manager
and each person, if any, who, within the meaning of Section 15 of the 1933 Act controls
(“controlling person”) the Portfolio Manager (collectively, “Portfolio Manager Indemnified
Persons”) against any and all losses, claims, damages, liabilities or litigation (including
reasonable legal and other expenses) to which a Portfolio Manager Indemnified Person may become
subject under the 1933 Act, the 1940 Act, the Advisers Act, under any other statute, at common law
or otherwise, arising out of the Investment Adviser’s responsibilities as Investment Adviser of the
Fund which (i) are based upon any willful misfeasance, bad faith or negligence, or reckless
disregard by the Investment Adviser, any of its directors, officers, or employees or any affiliate
acting on behalf of the Investment Adviser (other than a Portfolio Manager Indemnified Person), or
(ii) are based upon any untrue statement or alleged untrue statement of a material fact contained
in a Registration Statement or prospectus covering the Shares of the Fund or any Portfolio, or any
amendment thereof or any supplement thereto, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, unless such a statement or omission was made in reliance upon information furnished in
writing to the Investment Adviser, the Fund, or any affiliated person of the Fund by the Portfolio
Manager or any affiliated person of the Portfolio Manager (other than a PL Indemnified Person)
provided however, that in no case is the Investment Adviser’s indemnity in favor of the Portfolio
Manager Indemnified Persons deemed to protect such person against any liability to which any such
person would otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence
in the performance of his duties, or by reason of his reckless disregard of obligations and duties
under this Agreement.
15. Delegation. The Fund and the Investment Adviser consent to the Portfolio Manager’s asset
management affiliates within the UBS Global Asset Management Business Division of UBS AG, the
parent company of the Portfolio Manager, providing settlement, order placement, execution and/or
other operational services for the Fund which otherwise could be performed by the Portfolio Manager
hereunder; provided, however, that there will be no delegation of the day-to-day investment
advisory services described herein and no additional charges, fees or other compensation will be
paid for such services. To the extent that such delegation occurs, references to the Portfolio
Manager herein shall be deemed to include reference to its affiliates.
16. Duration and Termination. This Agreement shall become effective as of the date of
execution first written above, and shall continue in effect for two years and continue thereafter
on an annual basis with respect to each Portfolio; provided that such annual continuance is
specifically approved at least annually (a) by the vote of a majority of the Board, or (b) by the
vote of a majority of the outstanding voting shares of each Portfolio, and provided that
continuance is also approved by the vote of a majority of the Board who are not parties to this
Agreement or “interested persons” (as such term is defined in the 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.
11
This Agreement may be terminated with respect to any Portfolio:
(a) by the Fund at any time with respect to the services provided by the Portfolio Manager,
without the payment of any penalty, by vote of a majority of the Board or by a vote of a majority
of the outstanding voting shares of the Fund or, with respect to a particular Portfolio, by vote of
a majority of the outstanding voting shares of such Portfolio, upon sixty (60) days’ prior written
notice to the Portfolio Manager and the Investment Adviser;
(b) by the Portfolio Manager at any time, without the payment of any penalty, upon sixty (60)
days’ prior written notice to the Investment Adviser and the Fund.
(c) by the Investment Adviser at any time, without the payment of any penalty, upon sixty (60)
days’ prior written notice to the Portfolio Manager and the Fund.
This Agreement will terminate automatically in event of its assignment under the 1940 Act and
any rules adopted by the SEC thereunder, but shall not terminate in connection with any transaction
not deemed an assignment. In the event this Agreement is terminated or is not approved in the
manner described above (i) Portfolio Manager agrees to provide all reports, certification and
assistance called for pursuant to paragraphs 2(b), 2(h), 2(i), 2(k), 2(n), 2(p), and 2(q) within 30
business days of termination; and (ii) the Sections or Paragraphs numbered 2(g) for a period of six
years, and 2(m), 2(t), 2(v), 9, 10, 13, 14, 16, 17, 18 and 19 of this Agreement as well as any
applicable provision of this Paragraph numbered 15 shall remain in effect.
17. Use of Name.
(a) It is understood that the name “Pacific Life Insurance Company”, “Pacific Life Fund
Advisors LLC”, “Pacific Asset Management”, and “Pacific Select Fund” and any abbreviated forms and
any derivatives thereof and any logos associated with those names (including, without limitation,
the whale logo) are the valuable property of the Investment Adviser and its affiliates, and that
the Portfolio Manager shall not use such names (or abbreviations, derivatives or logos) without the
prior written approval of the Investment Adviser and only so long as the Investment Adviser is an
investment adviser to the Fund and/or the Portfolio. Upon termination of this Agreement, the
Portfolio Manager shall forthwith cease to use such names (or abbreviations, derivatives or logos).
(b) It is understood that the name “UBS Global Asset Management” and any derivative thereof or
any logo associated with that name is the valuable property of the Portfolio Manager and that the
Fund and the Investment Adviser have the right to use such name (or derivative or logo), in the
Fund’s prospectus, SAI and Registration Statement or other filings, forms or reports required under
applicable state or federal securities, insurance, or other law, for so long as the Portfolio
Manager is a Portfolio Manager to the Fund and/or one of the Portfolios, provided, however, that
the Fund may continue to use the name of the Portfolio Manager in its Registration Statement and
other documents to the extent deemed necessary by the Fund to comply with disclosure obligations
under applicable law and regulation. Neither the Fund nor the Investment Adviser shall use the
Portfolio Manager’s name or logo in promotional or sales related materials prepared by or on behalf
of the Investment Adviser or the Fund, without prior review and approval by the Portfolio Manager,
which may not be unreasonably withheld. Upon termination of this Agreement, the Fund and the
Investment Adviser shall forthwith cease to use such names (and logo), except as provided for
herein.
18. Limitation of Liability. A copy of the Declaration of Trust for the Fund is on file with
the Secretary of the State of Massachusetts. The Declaration of Trust has been
12
executed on behalf of the Fund by a Trustee of the Fund in his capacity as Trustee of the Fund
and not individually. The obligations of this Agreement with respect to each Portfolio shall be
binding upon the assets and property of each such Portfolio individually, and not jointly, and
shall not be binding upon any Trustee, officer, employee, agent or shareholder, whether past,
present, or future, of the Fund individually, or upon the Fund generally or upon any other
portfolio of the Fund.
19. Notices. All notices and other communications hereunder shall be in writing sent by
facsimile first, if practicable, but shall only be deemed given if delivered in person or by
messenger, cable, certified mail with return receipt, or by a reputable overnight delivery service
which provides evidence of receipt to the parties at the following addresses (or at such other
address or number for a party as shall be specified by like notice):
| A. | if to the Portfolio Manager, to: | ||
| UBS Global Asset Management (Americas) Inc. Xxx Xxxxx Xxxxxx Xxxxx Xxxxxxx, XX 00000 Facsimile transmission number: 000-000-0000 Attention: Legal Department |
|||
| B. | if to the Investment Adviser, to: | ||
| Pacific Life Fund Advisors LLC 000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxx Xxxxx, XX 00000 Facsimile transmission number: (000) 000-0000 Attention: Xxxxx X. Xxxxx |
|||
| C. | if to the Fund, to: | ||
| Pacific Select Fund c/o Pacific Life Insurance Company 000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxx Xxxxx, XX 00000 Facsimile transmission number: (000) 000-0000 Attention: Xxxxx X. Xxxxx |
20. Miscellaneous.
(a) This Agreement shall be governed by the laws of California, without regard to the conflict
of law principles thereof, provided that nothing herein shall be construed in a manner inconsistent
with the 1940 Act, the Advisers Act, or rules or orders of the SEC thereunder. The term “affiliate”
or “affiliated person” as used in this Agreement shall mean “affiliated person” as defined in
Section 2(a)(3) of the 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.
13
(d) If any provision of this Agreement shall be held or made invalid by a court decision,
statute, rule, or otherwise, the remainder of this Agreement shall not be affected thereby, and to
this extent, the provisions of this Agreement shall be deemed to be severable. To the extent that
any provision of this Agreement shall be held or made invalid by a court decision, statute, rule or
otherwise with regard to any party hereunder, such provisions with respect to other parties hereto
shall not be affected thereby.
(e) This Agreement may be executed in several counterparts, each of which shall be deemed to
be an original, and all such counterparts shall together constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed as of the
day and year first written above.
| PACIFIC LIFE FUND ADVISORS LLC | ||||||||||
| By: | /s/ Xxxxx X. Xxxxxx | By: | /s/ Xxxxxx X. Milfs | |||||||
| Name: | Xxxxx X. Xxxxxx | Name: Xxxxxx X. Milfs | ||||||||
| Title: | President and Chief Executive Officer | Title: Vice President & Secretary | ||||||||
| UBS GLOBAL ASSET MANAGEMENT (AMERICAS) INC. | ||||||||||
| By: | /s/ Xxxx X. Xxxxxx | By: | /s/ Xxxxxxx X. Xxxxxxx | |||||||
| Name: | Xxxx X. Xxxxxx | Name: Xxxxxxx X. Xxxxxxx | ||||||||
| Title: | COO – Americas Inc. Distribution | Title: Assistant Secretary | ||||||||
| PACIFIC SELECT FUND | ||||||||||
| By: | /s/ Xxxxx X. Xxxxxx | By: | /s/ Xxxxxx X. Milfs | |||||||
| Name: | Xxxxx X. Xxxxxx | Name: Xxxxxx X. Milfs | ||||||||
| Title: | Chairman and Chief Executive Officer | Title: Secretary | ||||||||
14
Exhibit A
PACIFIC SELECT FUND
FEE SCHEDULE
FEE SCHEDULE
Effective: May 1, 2009
Portfolio: Large-Cap Growth Portfolio
The Investment Adviser will pay to the Portfolio Manager a monthly fee for its services
for the above noted Portfolio based on:
(a) The annual percentage of the combined average daily net assets of the Large-Cap Growth
Portfolio of Pacific Select Fund and the PL Large-Cap Growth Fund of Pacific Life Funds
according to the following schedule:
| Rate% | Break Point (assets) | |||
| 0.45 | % | on the first $25 million |
||
| 0.40 | % | on the next $225 million |
||
| 0.30 | % | on the next $1.75 billion |
||
| 0.25 | % | on excess over $2.0 billion |
||
| (b) | The ratio of the PSF Large-Cap Growth Portfolio’s average daily net assets over the combined assets of the PSF Large-Cap Growth Portfolio and the PL Large-Cap Growth Fund of Pacific Life Funds. |
In recognition of the fact that the Portfolio Manager may have an inherent constraint with
respect to the amount of money that Portfolio Manager is able to manage in a particular strategy,
Portfolio Manager agrees to hold back or reserve total capacity (that is, agrees to accept a
certain level of dollars) for the Large-Cap Growth Portfolio of Pacific Select Fund and the PL
Large-Cap Growth Fund of Pacific Life Funds and the strategies employed for the Portfolios and
investments as follows:
$5 billion dollars combined (to be determined on a net cash flow basis into the account) for
the first three years. After three years, the capacity amount will be revisited.
Fees for services shall be prorated for any portion of a year in which the Agreement is not
effective.
15
