SUBADVISORY AGREEMENT
Exhibit (d)(mm)
AGREEMENT made effective the 1st day of November, 2013, among Ivy Investment Management
Company, a Delaware corporation (“Subadviser”), Pacific Life Fund Advisors LLC, a Delaware Limited
Liability Company (“Investment Adviser”), and Pacific Select Fund, a Massachusetts Business Trust
(the “Trust”).
WHEREAS, the Trust is registered with the Securities and Exchange Commission (“SEC”) as an
open-end, management investment company under the Investment Company Act of 1940, as amended (the
“1940 Act”);
WHEREAS, the Investment Adviser is registered as an investment adviser under the Investment
Advisers Act of 1940, as amended (“Advisers Act”);
WHEREAS, the Subadviser is registered with the SEC as an investment adviser under the Advisers
Act;
WHEREAS, the Trust has retained the Investment Adviser to render investment advisory services
to the various funds of the Trust pursuant to an Advisory Agreement, as amended, and such Agreement
authorizes the Investment Adviser to engage a subadviser to discharge the Investment Adviser’s
responsibilities with respect to the investment management of such funds;
WHEREAS, the Trust and the Investment Adviser desire to retain the Subadviser to furnish
investment advisory services to one or more funds of the Trust, and the Subadviser is willing to
furnish such services to such funds and the Investment Adviser in the manner and on the terms
hereinafter set forth; and
NOW THEREFORE, in consideration of the promises and mutual covenants herein contained, it is
agreed among the Trust, the Investment Adviser, and the Subadviser as follows:
1. Appointment. The Trust and the Investment Adviser hereby appoint Subadviser to act as
subadviser to provide investment advisory services to the fund(s) of the Trust listed on Exhibit A
attached hereto (individually, a “Fund” and together, the “Funds”) for the periods and on the terms
set forth in this Agreement. The Subadviser accepts such appointment and agrees to furnish the
services set forth herein for the compensation herein provided.
In the event the Investment Adviser wishes to retain the Subadviser to render investment
advisory services to one or more funds of the Trust other than the Fund(s), the Investment Adviser
shall notify the Subadviser in writing and shall revise Exhibit A to reflect such additional
fund(s). If the Subadviser is willing to render such services, it shall notify the Trust and the
Investment Adviser in writing, whereupon such fund shall become a Fund hereunder, and be subject to
this Agreement.
2. Subadviser Duties. Subject to the supervision of the Trust’s Board of Trustees (the
“Board”) and the Investment Adviser, the Subadviser will render investment advisory services to a
Fund. The Subadviser will provide investment research and analysis, which may include computerized
investment methodology, and will conduct a continuous program of evaluation, investment, purchases
and/or sales, and reinvestment of a Fund’s assets by
determining the securities, cash and other investments, including, but not limited to,
futures, options contracts, swaps and other derivative instruments, if any and to the extent
permitted in a Fund’s registration statement, that shall be purchased, entered into, retained,
sold, closed, or exchanged for the Fund, when these transactions should be executed, and what
portion of the assets of the Fund should be held in the various securities and other investments in
which it may invest, and the Subadviser is hereby authorized to execute and perform such services
on behalf of the Fund. To the extent permitted by the written investment policies of the Fund as
reflected in the Fund’s then-current Prospectus and Statement of Additional information in its
Registration Statement (as defined in Section 2(a) below), the Subadviser shall make decisions for
the Fund 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 Fund. With respect to trading in restricted currencies, however, the Subadviser shall review
any trades executed by the respective Fund’s custodian to determine that they are reasonable and
are in the best interest of the Fund and agrees to promptly notify the Investment Adviser if a
trade does not, in its reasonable determination, meet either criteria. The Subadviser is authorized
to and shall exercise tender offers, exchange offers and vote proxies on behalf of the Fund, each
as the Subadviser determines is in the best interest of the Fund in accordance with the
Subadviser’s proxy voting policy. The Subadviser is authorized, on behalf of the Fund, to open
brokerage accounts in accordance with Trust Procedures. To the extent permitted by the written
investment policies of the Fund, as reflected in the Fund’s then-current Prospectus and Statement
of Additional Information in its Registration Statement (as defined in Section 2(a) below), the
Subadviser is authorized, on behalf of the Fund, to enter into futures account agreements, listed
option agreements, ISDA master agreements and related documents, including but not limited to
cleared derivatives agreements, and to open accounts and take other necessary or appropriate
actions related thereto, in accordance with Trust Procedures.
In performing these duties, the Subadviser:
(a) will conform with (1) the applicable provisions of the 1940 Act, the Advisers Act and all
applicable rules and regulations and regulatory guidance thereunder, and releases and
interpretations related thereto (including any no-action letters and exemptive orders which have
been granted by the SEC applicable to the Trust, to the Investment Adviser (as provided to the
Subadviser by the Investment Adviser), or to the Subadviser), including performing its obligations
under this Agreement as a fiduciary to each Fund and its shareholders; (2) applicable rules and
regulations under the Securities Exchange Act of 1934, as amended (the “1934 Act”) and regulatory
guidance, releases and interpretations related thereto; (3) the Commodity Exchange Act and all
applicable rules and regulations thereunder, and releases and interpretations related thereto
(including any no-action letters and exemptive orders which have been granted by the Commodity
Futures Trading Commission (“CFTC”) and/or the National Futures Association (“NFA”) to the
Investment Adviser (as provided to the Subadviser by the Investment Adviser), or to the
Subadviser), (4) any applicable written procedures, policies and guidelines adopted by the Board
and furnished to the Subadviser (“Trust Procedures”); (5) the Trust’s or Fund’s investment goals,
investment policies and investment restrictions as stated in the Trust’s Prospectus and Statement
of Additional Information as supplemented or amended from time to time, as furnished to the
Subadviser; (6) the provisions of the Trust’s Registration
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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 and furnished to the Subadviser (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) any other applicable laws and regulations, including
without limitation, proxy voting regulations; (9) the provisions of Section 817(h) of the Code,
applicable to the Fund and (10) all other applicable federal and state laws and regulations
pertaining to investment vehicles underlying variable annuity and/or variable life insurance
contracts. To the extent that the Subadviser engages in transactions that require segregation of
assets or other arrangements, including but not limited to options, futures contracts, short sales
or borrowing transactions, the Subadviser shall designate to the Trust’s custodian, who shall be
identified by the Investment Adviser in writing, those assets to be segregated in accordance with
the 1940 Act, if necessary, based upon trading strategies and positions the Subadviser employs on
behalf of the Fund, 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 Fund in
connection therewith. Until the Investment Adviser delivers any supplements or amendments to the
Subadviser, the Subadviser shall be fully protected in relying on the Trust’s Registration
Statement previously furnished by the Investment Adviser to the Subadviser. In managing the Fund
in accordance with the requirements of this Section 2, the Subadviser shall be entitled to receive
and act upon advice of counsel to the Trust, to the Investment Adviser or to the Subadviser that is
also acceptable to the Investment Adviser.
(b) will (i) identify each position in the Fund 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 Fund, for broker-dealer and
futures commission merchant (“FCM”) selection, and for negotiation of commission rates. The
Subadviser’s primary consideration in effecting a security or other transaction will be to obtain
the best execution for the Fund, taking into account the factors specified in the Prospectus and
Statement of Additional Information for the Trust, as they may be amended or supplemented from time
to time and furnished to the Subadviser. Subject to such policies as the Board may determine and
consistent with Section 28(e) of the Securities Exchange Act of 1934, as amended (the “1934 Act”),
the Subadviser shall not be deemed to have acted unlawfully or to have breached any duty created by
this Agreement or otherwise solely by reason of its having caused the Fund to pay a broker or
dealer, acting as agent, for effecting a Fund transaction at a price in excess of the amount of
commission another broker or dealer would have charged for effecting that transaction, if the
Subadviser determines in good faith that such amount of commission was reasonable in relation to
the value of the brokerage and research services provided by such broker or dealer, viewed in terms
of either that particular transaction or the Subadviser’s (or its affiliates’) overall
responsibilities with respect to the Fund and to its other clients as to which it exercises
investment discretion. To the extent consistent with these standards, and in accordance with
Section 11(a) of the 1934 Act and Rule 11a2-2(T) thereunder, and subject to any other applicable
laws and regulations including Section 17(e) of the 1940 Act, the Subadviser is further authorized
to place orders on behalf of the Fund through the Subadviser if the Subadviser is registered as a
broker or dealer with the SEC or as a FCM with the Commodities Futures
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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 Fund or the Subadviser. Such allocation shall be in such amounts and proportions as the
Subadviser shall determine consistent with the above standards, and, upon request, the Subadviser
will report on said allocation to the Investment Adviser and Board, indicating the brokers, dealers
or FCMs to which such allocations have been made and the basis therefore. The Subadviser is
authorized to open brokerage accounts on behalf of the Fund in accordance with Trust Procedures.
The Subadviser shall not direct brokerage to any broker-dealer in recognition of, or otherwise take
into account in making brokerage allocation decisions, sales of shares of a Fund 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 Fund as well as any other investment advisory clients, to the extent permitted by
applicable laws and regulations, but shall not be obligated to, aggregate the securities to be so
sold or purchased with those of its other clients where such aggregation is not inconsistent with
the policies set forth in the Registration Statement as furnished to the Subadviser. In such
event, allocation of the securities so purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Subadviser in a manner that is fair and equitable and consistent
with the Subadviser’s fiduciary obligations to the Fund and to such other clients.
(e) will, in connection with the purchase and sale of securities for the Fund, together with
the Investment Adviser, arrange for the transmission to the custodian and recordkeeping agent for
the Trust, on a daily basis, such confirmation(s), trade tickets, and other documents and
information, including, but not limited to, CUSIP, SEDOL, or other numbers that identify securities
to be purchased or sold on behalf of the Fund, as may be reasonably necessary to enable the
custodian and recordkeeping agent to perform its administrative and recordkeeping responsibilities
with respect to the Fund, and with respect to portfolio securities to be purchased or sold through
the Depository Trust Company, will arrange for the automatic transmission of the confirmation of
such trades to the Trust’s custodian and recordkeeping agent, and, if required, the Investment
Adviser. The Subadviser agrees to comply with such rules, procedures and time frames as the
Trust’s custodian may reasonably set or provide with respect to the clearance and settlement of
transactions for a Fund, including but not limited to submission of trade tickets. Any Fund assets
shall be delivered directly to the Trust’s custodian.
(f) will provide reasonable assistance to the Investment Adviser, custodian or recordkeeping
agent for the Trust in determining or confirming, consistent with the procedures and policies
stated in the Trust’s valuation procedures and/or the Registration Statement, the value of any
portfolio securities or other assets of the Fund for which the Investment Adviser, custodian or
recordkeeping agent seeks assistance from the Subadviser or identifies for review by the
Subadviser. Such reasonable assistance shall include (but is not limited to): (i) designating and
providing timely access, on an as-needed basis and upon the reasonable request of the Investment
Adviser or custodian, to one or more employees of the Subadviser who are knowledgeable about the
security/issuer, its financial condition, trading and/or other relevant factors for valuation,
which employees shall be available for consultation when the Board’s Valuation Committee convenes;
(ii) notifying the Investment Adviser in the event any Fund
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security’s value does not appear to reflect corporate actions, news, significant events or
such security otherwise requires review to determine if fair valuation is necessary under the
Trust’s procedures; (iii) applying to the Fund’s assets the procedures of the Subadviser used for
valuing the assets held by other accounts under management of the Subadviser and notifying the
Investment Adviser of the valuation of such assets determined under such procedures, including in
the event that the application of such procedures would result in a determination of fair value
with respect to any asset held by the Fund 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 Fund; (v) verifying pricing and providing fair valuations or
recommendations for fair valuations in accordance with the Trust’s valuation procedures, as they
may be amended from time to time; and (vi) maintaining adequate records and written backup
information with respect to the securities valuation services provided hereunder, and providing
such information to the Investment Adviser or the Trust upon request. Such records shall be deemed
to be Trust records.
(g) will maintain and preserve such records related to the Fund’s transactions as required
under the 1940 Act and the Advisers Act, Commodity Exchange Act (including the rules and
regulations of the CFTC and NFA). The Subadviser will make available to the Trust and the
Investment Adviser promptly upon reasonable advance request, any of the Fund’s investment records
and ledgers maintained by the Subadviser (which shall not include the records and ledgers
maintained by the custodian and recordkeeping agent for the Trust), as are reasonably necessary to
assist the Trust and the Investment Adviser in complying with requirements of the 1940 Act and the
Advisers Act, Commodity Exchange Act (including the rules and regulations of the CFTC and NFA), as
well as other applicable laws, and will furnish to regulatory authorities having the requisite
authority any information or reports specifically related to the Fund in connection with such
services which may be requested in order to ascertain whether the operations of the Trust are being
conducted in a manner consistent with applicable laws and regulations.
(h) will regularly report to the Board on the investment program for the Fund and the issuers
and securities represented in the Fund, and will furnish the Board, with respect to the Fund, such
periodic and special reports as the Board and the Investment Adviser may reasonably request,
including, but not limited to, reports concerning transactions and performance of the Fund, a
quarterly compliance checklist, reports regarding compliance with the Trust’s procedures pursuant
to Rules 17e-1, 17a-7, 10f-3 and 12d3-1 under the 1940 Act, fundamental investment restrictions,
procedures for opening brokerage accounts and commodity trading accounts, liquidity determination
of securities purchased pursuant to Rule 144A and 4(2) commercial paper, IOs/POs, confirmation of
the liquidity of all other securities in the Trusts, and compliance with the Subadviser’s Code of
Ethics, and such other reports or certifications that the Investment Adviser may reasonably request
from time to time.
(i) will adopt a written Code of Ethics complying with the requirements of Rule 17j-1 under
the 1940 Act and Rule 204A-1 under the Advisers Act and will provide the Investment Adviser and the
Trust with a copy of the Code of Ethics, together with evidence of its adoption. Within 30 days of
the end of each calendar quarter during which this Agreement remains in effect, the president, a
vice president, the chief compliance officer, a managing
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director, or other senior officer (as the Investment Adviser determines appropriate) of the
Subadviser shall certify to the Investment Adviser that (a) the Subadviser had a Code of Ethics
that complied with the requirements of Rule 17j-1 during the previous calendar quarter, (b) the
Code contains procedures reasonably necessary to prevent Access Persons (as defined in Rule 17j-1
under the 1940 Act, as amended) from violating the Code, and that (c), except as otherwise
disclosed, there have been no material violations of the Code or, if a material violation has
occurred, that appropriate action has been taken in response to such violation. Upon written
request of the Investment Adviser or the Trust, the Subadviser shall permit representatives of the
Investment Adviser and the Trust to examine the reports and records related to the reported
material violations (or provide summaries of such reports and records, with non-public personal
information redacted) required to be made under the Code of Ethics and other records evidencing
enforcement of the Code of Ethics. Notwithstanding anything herein to the contrary, the Subadviser
shall not redact any information that would reasonably be considered relevant information to the
Investment Adviser or the Trust for the purpose of the examination, including name or title of a
person.
(j) will provide to the Investment Adviser a copy of the Subadviser’s Form ADV, and any
supplements or amendments thereto, as filed with the SEC, on an annual basis (or more frequently if
requested by the Investment Adviser or the Board) including any portion which contains disclosure
of legal or regulatory actions. The Subadviser represents and warrants that it is a duly
registered investment adviser under the Advisers Act and will notify the Investment Adviser
immediately if any action is brought by any regulatory body which would affect that registration.
The Subadviser will provide a list of persons whom the Subadviser wishes to have authorized to give
written and/or oral instructions to custodians of assets for the Fund.
(k) will be responsible for meeting the Subadviser’s regulatory obligations, including the
preparation and filing of such reports with respect to the assets of the Fund reflecting holdings
over which the Subadviser or its affiliates have investment discretion as may be required from time
to time, including but not limited to Schedule 13G, Form 13F and Form SH.
(l) will not permit any employee of the Subadviser to have any material involvement with the
management of the Fund 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;
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(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 (i) as
expressly authorized in this Agreement, (ii) disclosures to an affiliate subject to comparable
confidentiality obligations, (iii) 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, (iv) if the Board has authorized such disclosure, or (v) if such disclosure is required
by applicable federal or state law or regulations or regulatory authorities having the requisite
authority. The Trust and the Investment Adviser will not disclose or use any records or
information with respect to the Subadviser obtained pursuant to this Agreement, in any manner
whatsoever except (x) as expressly authorized in this Agreement, (y) if the Subadviser has
authorized such disclosure, or (z) if such disclosure is required by applicable federal or state
law or regulations or regulatory authorities having the requisite authority.
(n) will assist the Investment Adviser, the Trust, and any of its or their trustees,
directors, officers, and/or employees in complying with the provisions of the Xxxxxxxx-Xxxxx Act of
2002 to the extent such provisions relate to the services to be provided by, and the obligations
of, the Subadviser hereunder. Specifically, and without limitation to the foregoing, the
Subadviser agrees to provide certifications to the principal executive and financial officers of
the Trust (the “certifying officers”) that correspond to and/or support the certifications required
to be made by the certifying officers in connection with the preparation and/or filing of the
Trust’s Form N-CSRs, N-Qs, N-SARs, shareholder reports, financial statements, and other disclosure
documents or regulatory filings, in such form and content as the Trust shall reasonably request or
in accordance with procedures adopted by the Trust.
(o) is, along with its affiliated persons, permitted to enter into transactions with the other
funds of the Trust and affiliated persons of those other funds of the Trust (collectively, the
“Other Funds”). In doing so, the Subadviser is prohibited from consulting with the Investment
Adviser or the subadvisers of these Other Funds concerning securities transactions of the Fund
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 Fund in
accordance with written policies and procedures adopted by the Subadviser, which may be amended
from time to time, and which at all times shall comply with the requirements of applicable federal
statutes and regulations and any related SEC guidance relating to such statutes and regulations
(collectively, “Proxy Voting Policies and Procedures”). The Subadviser shall vote proxies on
behalf of the Fund in a manner deemed by the Subadviser to be in the best interests of the Fund
pursuant to the Subadviser’s written Proxy Voting Policies and Procedures.
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The Subadviser shall provide disclosure regarding the Proxy Voting Policies and Procedures in
accordance with the requirements of Form N-1A for inclusion in the Registration Statement. The
Subadviser shall report to the Investment Adviser in a timely manner a record of all proxies voted,
in such form and format that complies with acceptable federal statutes and regulations (e.g.,
requirements of Form N-PX). The Subadviser shall certify at least annually or more often as may
reasonably be requested by the Investment Adviser, as to its compliance with its own Proxy Voting
Policies and Procedures and applicable federal statutes and regulations.
(q) will provide reasonable assistance to the Trust and the Trust’s Chief Compliance Officer
(“CCO”) in complying with Rule 38a-1 under the 1940 Act, including, in the event of any relevant
regulatory exams, providing notice of any material deficiencies, and providing notice of any
material changes to business operations that will likely, in the Subadviser’s reasonable
determination, adversely affect the services provided by Subadviser under this Agreement, provided
that the provision of such notices are permitted under applicable law. Specifically, the
Subadviser represents and warrants that it shall maintain a compliance program in accordance with
the requirements of Rule 206(4)-7 under the Advisers Act, and shall provide the CCO with reasonable
access to information regarding the Subadviser’s compliance program, which access shall include
on-site visits with the Subadviser as may be reasonably requested from time to time. In connection
with the periodic review and annual report required to be prepared by the CCO pursuant to Rule
38a-1, the Subadviser agrees to provide certifications as may be reasonably requested by the CCO
related to the design and implementation of the Subadviser’s compliance program.
(r) will comply with any Trust Procedures, including the Trust’s policy on selective
disclosure of portfolio holdings of the Trust (the “Selective Disclosure Policy”), as provided in
writing to the Subadviser and as may be amended from time to time. As such, the Subadviser agrees
not to trade on non-public portfolio holdings information of the Trust in a manner inconsistent
with applicable federal and state securities law or applicable international law, including
anti-fraud provisions of such laws, or inconsistent with any internal policy adopted by the
Subadviser to govern trading of its employees. Compliance with the Selective Disclosure Policy
includes the requirement of entering into confidentiality agreements with third parties who will
receive non-public portfolio holdings of the Trust that meet the minimum requirements of the
Selective Disclosure Policy. The Subadviser will provide any such agreements to the Investment
Adviser or the Trust, along with any amendments or supplements thereto, from time to time on an
ongoing basis if requested by the Investment Adviser or the Trust, provided however that Subadviser
may provide only those parts of the agreements that relate to ensuring conformance with the Trust’s
Selective Disclosure Policy or other Trust Procedures. The Subadviser agrees to provide a
certification with respect to compliance with Trust Procedures as may be requested by the Trust
from time to time. Notwithstanding the foregoing, the Trust and the Investment Adviser acknowledge
that the Funds may be managed in substantially the same manner as other funds managed or subadvised
by the Subadviser and that the holdings of such funds may be substantially similar to those of the
Funds.
(s) will notify the Investment Adviser promptly in the event that, in the judgment of the
Subadviser, Fund share transaction activity becomes disruptive to the ability of the Subadviser to
effectively manage the assets of a Fund consistent with the Fund’s investment objectives and
policies.
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(t) will provide assistance as may be reasonably requested by the Investment Adviser in
connection with compliance by the Fund with any current or future legal and regulatory requirements
related to the services provided by the Subadviser hereunder.
(u) will provide such certifications to the Trust as the Trust or the Investment Adviser may
reasonably request related to the services provided by the Subadviser hereunder, including (but not
limited to) certifications of compliance with Trust Procedures, the Registration Statement, and
applicable securities regulations.
(v) upon request by the Investment Adviser, use commercially reasonable efforts to research
and confirm to the Investment Adviser whether the Fund held or traded in a particular security, on
any particular day or during any particular timeframe within the term of this Agreement, as the
Investment Adviser may specify; and Subadviser will provide relevant trade information or
documentation (for example, a schedule of purchases and sales and/or holdings or trade
confirmations) for such security. However, the Trust and the Investment Adviser acknowledge that
the Subadviser is not an official recordkeeper of the Funds and agree that, provided the Subadviser
acts in good faith in providing assistance hereunder, the Subadviser shall not be liable for the
services provided under this subsection (v). The Subadviser shall have no responsibility for
filing claims on behalf of the Trust with respect to any class action, bankruptcy proceeding or any
other action or proceeding in which the Trust may be entitled to participate as a result of its
securities holdings. The Subadviser’s responsibility, with respect thereto, shall be limited to
the reasonable assistance described herein.
(w) will provide reasonable assistance to the Investment Adviser with respect to the annual
audit of the Trust’s financial statements, including, but not limited to: (i) providing broker
contacts as needed for obtaining trade confirmations (in particular with respect to investments in
loans (including participations and assignments) and all derivatives, including swaps); (ii)
providing copies of all documentation relating to investments in loans (including participations
and assignments) and derivative contracts, within a reasonable time after the execution of such
documentation; (iii) providing assistance in obtaining trade confirmations in the event the Trust
or the Trust’s independent registered public accounting firm is unable to obtain such confirmations
directly from the brokers; and (iv) obtaining market quotations for investments (including
investments in loans (including participations and assignments) and derivatives) that are not
readily ascertainable in the event the Trust or the Trust’s independent registered public
accounting firm is unable to obtain such market quotations through independent means.
(x) will, on an annual basis, advise the Investment Adviser (i) if the Subadviser acts as
sub-adviser to another U.S. registered mutual fund that follows the same investment strategy as a
Fund and (ii) if so, whether the Subadviser’s fee rate is less than the rate charged the Investment
Adviser for management of that Fund.
(y) is registered with the CFTC as a commodity trading adviser and is a member of the NFA or
is exempt from such registration/membership. Subadviser agrees that it will immediately notify
Investment Adviser if Subadviser plans to change its trading activity with respect to the
Portfolios in a way that requires the Investment Adviser to register with the CFTC and NFA as a
commodity pool operator or file an exemption from registration.
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Subadviser agrees to provide reasonable advanced notification (in no event less than 30 days)
to Investment Adviser of the change in trading activity so that Investment Adviser has adequate
time to comply with all filing and disclosure obligations of commodity pool operators of the CFTC
and NFA. Subadviser agrees that it will provide any and all assistance and information necessary
to Investment Adviser to comply with such CFTC and NFA requirements. Subadviser also agrees that
it will take all actions required of it by the CFTC and NFA as a result of the change in status,
including registration as a commodity trading adviser.
3. Representations and Obligations of the Investment Adviser. The Investment Adviser
represents and warrants that it is either registered with the CFTC as a commodity pool operator and
is a member of the NFA, where applicable, or is exempt from such registration/membership.
The Investment Adviser represents and warrants that it is registered as an investment adviser under
the Advisers Act, and such registration is current and in full compliance with the Advisers Act and
the rules and regulations thereunder; that it has all requisite authority to enter into, execute,
deliver and perform its obligations under this Agreement; and that its performance under this
Agreement does not conflict with any law, regulation or order to which it is subject or the Trust’s
governance requirements.
The Investment Adviser further agrees to promptly provide updated information regarding the Trust
which may be material to the Subadviser’s obligations hereunder, including, without limitation,
affiliates lists, securities restricted in the Funds, Trust procedures and Fund disclosures.
4. Disclosure about Subadviser and Fund. The Subadviser represents that it has reviewed the
current Registration Statement and agrees to promptly review future amendments to the Registration
Statement, including any supplements thereto which relate to the Subadviser or the Fund, filed with
the SEC (or which will be filed with the SEC in the future) and represents and warrants that,
solely with respect to the disclosure respecting or relating to the Subadviser or the Fund that the
Subadviser has provided to the Trust for inclusion in the Registration Statement, including any
performance information the Subadviser provides that is included in or serves as the basis for
information included in the Registration Statement, such portion of the Registration Statement
contains as of the date hereof, and will contain as of the date of any Registration Statement or
supplement thereto, no untrue statement of any material fact and does not omit any statement of
material fact which was required to be stated therein or necessary to make the statements contained
therein not misleading. The Subadviser further agrees to notify the Investment Adviser and the
Trust immediately of any material fact about the Subadviser and/or the Fund, known to the
Subadviser respecting or relating to the Subadviser, that is not contained in the Registration
Statement or prospectus for the Trust, or any amendment or supplement thereto, or of any statement
respecting or relating to the Subadviser and/or Fund contained therein that becomes untrue in any
material respect. With respect to the disclosure respecting the Fund, the Subadviser represents
and agrees that the description in the Trust’s prospectus, including the Fund’s goal, investment
strategies and risks (the “Fund Description”), as of the date of this Agreement and as of the date
of any Registration Statement or supplement thereto, is consistent with the manner in which the
Subadviser intends to manage the Fund, and the identification of risks is inclusive of all material
risks known to the Subadviser that are expected to arise in connection with the manner in which the
Subadviser intends to manage the
10
Fund. The Subadviser further agrees to notify the Investment Adviser and the Trust promptly
in the event that the Subadviser becomes aware that the Fund Description for a Fund is inconsistent
in any material respect with the manner in which the Subadviser is managing the Fund, and in the
event that the identified risks are inconsistent in any material respect with the risks known to
the Subadviser that arise in connection with the manner in which the Subadviser is managing the
Fund. In addition, the Subadviser agrees to comply with the Investment Adviser’s reasonable
request for information regarding the personnel of the Subadviser who are responsible for the
day-to-day management of a Fund’s assets.
5. Expenses. The Subadviser shall bear all expenses incurred by it and its staff with respect
to all activities in connection with the performance of the Subadviser’s services under this
Agreement, including but not limited to salaries, overhead, travel, preparation of Board materials,
review of marketing materials relating to Subadviser or other information provided by Subadviser to
the Investment Adviser and/or the Trust’s Distributor, and marketing support. Subadviser agrees to
pay to the Investment Adviser the cost of generating a prospectus supplement, which includes
preparation, filing, printing, and distribution (including mailing) of the supplement, if the
Subadviser makes any changes that require immediate disclosure in the prospectus or any required
regulatory documents by supplement, including changes to its structure or ownership, to investment
personnel, to investment style or management, or otherwise (“Changes”), and at the time of
notification to the Trust by the Subadviser of such Changes, the Trust is not generating a
supplement for other purposes or the Trust does not wish to add such Changes to a pending
supplement; provided, however, that Investment Adviser shall provide written support for such cost
at Subadviser’s request for any event exceeding Ten Thousand Dollars ($10,000.00). In the event
two or more subadvisers each require a supplement simultaneously, the expense of each supplement
will be shared pro rata with such other subadviser(s) based upon the number of pages required by
each such subadviser. All other expenses not specifically assumed by the Subadviser hereunder or
by the Investment Adviser under the Advisory Agreement are borne by the applicable Fund of the
Trust. The Trust, the Subadviser 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 Subadviser pursuant
to this Agreement, the Investment Adviser will pay to the Subadviser a fee in accordance with
Exhibit A attached to this Agreement. This fee will be computed by the Investment Adviser 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 Subadviser shall not be responsible for
providing money for the initial capitalization of any Fund.
8. Compliance. The Subadviser agrees that it shall immediately notify the Investment Adviser
and the Trust (i) in the event that the SEC, CFTC, or any banking or other regulatory body has
censured the Subadviser; placed limitations upon its activities, functions or operations; suspended
or revoked its registration, if any, or ability to serve as an investment
11
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 Fund has
ceased to qualify or might not qualify as a regulated investment company under Subchapter M of the
Code. The Subadviser further agrees to notify the Investment Adviser and Trust immediately of any
material fact known to the Subadviser respecting or relating to the Subadviser that is not
contained in the Registration Statement, or any amendment or supplement thereto, or of any
statement contained therein that becomes untrue in any material respect.
The Investment Adviser agrees that it shall immediately notify the Subadviser (i) in the event that
the SEC has censured the Investment Adviser or the Trust; placed limitations upon either of their
activities, functions, or operations; suspended or revoked the Investment Adviser’s registration as
an investment adviser; or has commenced proceedings or an investigation that may result in any of
these actions; (ii) upon having a reasonable basis for believing that a Fund has ceased to qualify
or might not qualify as a regulated investment company under Subchapter M of the Code.
9. Independent Contractor. The Subadviser shall for all purposes herein be deemed to be an
independent contractor and shall, unless otherwise expressly provided herein or authorized by the
Investment Adviser from time to time, have no authority to act for or represent the Investment
Adviser in any way or otherwise be deemed its agent. The Subadviser understands that unless
provided herein or authorized from time to time by the Trust, the Subadviser shall have no
authority to act for or represent the Trust in any way or otherwise be deemed the Trust’s agent.
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 Subadviser hereby agrees that all
records which it maintains for the Fund are the property of the Trust and further agrees to
surrender promptly to the Trust any of such records upon the Trust’s or the Investment Adviser’s
request, including requests made upon or following termination of this Agreement (unless other
dispensation of such records is mutually agreed by the parties) for so long as Subadviser is
required to maintain such records under applicable law, although the Subadviser 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 Trust.
12. Responsibility and Control. Notwithstanding any other provision of this Agreement, it is
understood and agreed that the Trust reserves the right to direct, approve or disapprove any action
hereunder taken on its behalf by the Subadviser, provided, however, that the Subadviser shall not
be liable for any losses to the Trust resulting from the Trust’s direction, or from the Trust’s
disapproval of any action proposed to be taken by the Subadviser.
13. Services Not Exclusive. It is understood that the services of the Subadviser and its
employees are not exclusive, and nothing in this Agreement shall prevent the Subadviser (or its
employees or affiliates) from providing similar services to other clients, including investment
companies (whether or not their investment objectives and policies are similar to those of the
Fund) or from engaging in other activities.
12
14. Liability.
(a) Except as may otherwise be required by the provisions of this Agreement (including under
Section 15), the 1940 Act or the rules thereunder or other applicable law, the Trust and the
Investment Adviser agree that the Subadviser, any affiliated person of the Subadviser, and each
person, if any, who, within the meaning of Section 15 of the 1933 Act, controls the Subadviser,
shall not be liable for, or subject to any damages, expenses, or losses in connection with, any act
or omission connected with or arising out of any services rendered under this Agreement, except by
reason of the Subadviser’s willful misfeasance, bad faith, or gross negligence in the performance
of the Subadviser’s duties, or by reason of reckless disregard of the Subadviser’s obligations and
duties under this Agreement. Notwithstanding the foregoing, nothing contained in this Agreement
shall constitute a waiver or limitation of rights that the Trust or Investment Adviser may have
under federal or state securities laws.
(b) The Investment Adviser and the Trust’s Board of Trustees understand that the value of
investments made can rise or fall and that investment decisions will not always be profitable. The
Subadviser makes no guarantees as to performance hereunder. They also understand that investment
decisions made on behalf of the Fund by the Subadviser are subject to various market and business
risks.
(c) Except as may otherwise be required by the provisions of this Agreement (including under
Section 15), the 1940 Act or the rules thereunder or other applicable law, the Subadviser agrees
that the Trust and the Investment Adviser, any affiliated person thereof, and each person, if any,
who, within the meaning of Section 15 of the 1933 Act, controls the Trust or Investment Adviser,
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 the Trust’s or Investment Adviser’s willful misfeasance, bad faith, or gross negligence
in the performance of their duties, or by reason of reckless disregard of the Trust’s or Investment
Adviser’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 Subadviser
may have under federal or state securities laws.
15. Indemnification.
(a) The Subadviser agrees to indemnify and hold harmless, the Investment Adviser, any
affiliated person within the meaning of Section 2(a)(3) of the 1940 Act (“affiliated person”) of
the Investment Adviser, and each person, if any, who, within the meaning of Section 15 of the 1933
Act, controls (“controlling person”) the Investment Adviser (collectively, “PL Indemnified
Persons”) against any and all losses, claims, damages, liabilities or litigation (including
reasonable legal and other expenses), to which the Investment Adviser or such PL Indemnified Person
may become subject under the 1933 Act, the 1940 Act, the Advisers Act, under any other statute, at
common law or otherwise, arising out of the Subadviser’s responsibilities to the Trust which (i)
are based upon any willful misfeasance, bad faith, gross
13
negligence, or reckless disregard of, the Subadviser’s obligations and/or duties under this
Agreement by the Subadviser or by any of its directors, officers or employees, or any affiliate or
agent or delegate acting on behalf of the Subadviser (other than a PL Indemnified Person), (ii) are
based upon the Subadviser’s (or its agent’s or delegate’s) breach of any provision of this
Agreement, including breach of any representation, warranty or undertaking, or (iii) are based upon
any untrue statement or alleged untrue statement of a material fact contained in a Registration
Statement or prospectus covering the Shares of the Trust or any Fund, or any amendment thereof or
any supplement thereto, or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading, if such a
statement or omission was made in reliance upon information furnished in writing to the Investment
Adviser, the Trust, or any affiliated person of the Trust by the Subadviser or any affiliated
person or agent or delegate of the Subadviser (other than a PL Indemnified Person) or (iv) are
based upon breach of its fiduciary duties to the Trust or violation of applicable law provided,
however, that in no case is the Subadviser’s indemnity in favor of the Investment Adviser or any
affiliated person or controlling person of the Investment Adviser deemed to protect such person
against any liability to which any such person would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of his duties, or by reason of his
reckless disregard of obligations and duties under this Agreement.
(b) The Investment Adviser agrees to indemnify and hold harmless the Subadviser, any
affiliated person within the meaning of Section 2(a)(3) of the 1940 Act of the Subadviser and each
person, if any, who, within the meaning of Section 15 of the 1933 Act controls (“controlling
person”) the Subadviser (collectively, “Subadviser Indemnified Persons”) against any and all
losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses)
to which a Subadviser Indemnified Person may become subject under the 1933 Act, the 1940 Act, the
Advisers Act, under any other statute, at common law or otherwise, arising out of the Investment
Adviser’s responsibilities as Investment Adviser of the Trust which (i) are based upon any willful
misfeasance, bad faith or gross negligence, or reckless disregard of, the Investment Adviser’s
obligations and/or duties under this Agreement by the Investment Adviser or by any of its
directors, officers, or employees or any affiliate or agent or delegate acting on behalf of the
Investment Adviser (other than a Subadviser Indemnified Person); (ii) are based upon the Investment
Adviser’s (or its agent’s or delegate’s) breach of any provision of this Agreement, including
breach of any representation, warranty or undertaking, (iii) are based upon any untrue statement or
alleged untrue statement of a material fact contained in a Registration Statement or prospectus
covering the Shares of the Trust or any Fund, or any amendment thereof or any supplement thereto,
or the omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, unless such a statement or omission was
made in reliance upon information furnished in writing to the Investment Adviser, the Trust, or any
affiliated person of the Trust by the Subadviser or any affiliated person or agent or delegate of
the Subadviser (other than a PL Indemnified Person) or (iv) are based upon breach of its fiduciary
duties to the Trust or violation of applicable law provided however, that in no case is the
Investment Adviser’s indemnity in favor of the Subadviser Indemnified Persons deemed to protect
such person against any liability to which any such person would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance of his duties, or by reason
of his reckless disregard of obligations and duties under this Agreement.
14
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 the Fund; provided that such annual continuance is specifically
approved at least annually (a) by the vote of a majority of the Board, or (b) by the vote of a
majority of the outstanding voting shares of the Fund, 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 Trust, the Investment
Adviser, or the Subadviser, cast in person at a meeting called for the purpose of voting on such
approval.
This Agreement may be terminated with respect to any Fund:
(a) by the Trust at any time with respect to the services provided by the Subadviser, without
the payment of any penalty, by vote of a majority of the Board or by a vote of a majority of the
outstanding voting shares of the Trust or, with respect to a particular Fund, by vote of a majority
of the outstanding voting shares of such Fund, upon sixty (60) days’ prior written notice to the
Subadviser and the Investment Adviser;
(b) by the Subadviser at any time, without the payment of any penalty, upon sixty (60) days’
prior written notice to the Investment Adviser and the Trust.
(c) by the Investment Adviser at any time, without the payment of any penalty, upon sixty (60)
days’ prior written notice to the Subadviser and the Trust.
This Agreement will terminate automatically in event of its assignment under the 1940 Act and
any rules adopted by the SEC thereunder, but shall not terminate in connection with any transaction
not deemed an assignment. In the event this Agreement is terminated or is not approved in the
manner described above (i) Subadviser agrees to provide all reports, certification and assistance
called for pursuant to paragraphs 2(b), 2(h), 2(i), 2(k), 2(n), 2(p), and 2(q) within 30 business
days of termination; and (ii) the Sections or Paragraphs numbered 2(g) for a period of six years,
and 2(m), 10, 13, 14, 15, 17, 18, 19, 20 and 21 of this Agreement as well as any applicable
provision of this Paragraph numbered 16 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 Subadviser shall not use such names (or abbreviations, derivatives or logos) without the prior
written approval of the Investment Adviser and only so long as the Investment Adviser is an
investment adviser to the Trust and/or the Fund. Upon termination of this Agreement, the
Subadviser shall forthwith cease to use such names (or abbreviations, derivatives or logos).
15
(b) It is understood that the names “Ivy Investment Management Company, and Ivy Funds” and any
derivative thereof or any logo associated with that name is the valuable property of the Subadviser
and that the Trust and the Investment Adviser have the right to use such name (or derivative or logo), in the Trust’s prospectus, SAI and Registration Statement
or other filings, forms or reports required under applicable state or federal securities,
insurance, or other law, for so long as the Subadviser is a Subadviser to the Trust and/or one of
the Funds, provided, however, that the Trust may continue to use the name of the Subadviser in its
Registration Statement and other documents to the extent deemed necessary by the Trust to comply
with disclosure obligations under applicable law and regulation. Neither the Trust nor the
Investment Adviser shall use the Subadviser’s name or logo in promotional or sales related
materials prepared by or on behalf of the Investment Adviser or the Trust, without prior review and
approval by the Subadviser, which may not be unreasonably withheld. Upon termination of this
Agreement, the Trust and the Investment Adviser shall forthwith cease to use such names (and logo),
except as provided for herein.
18. Limitation of Liability. A copy of the Declaration of Trust for the Trust is on file with
the Secretary of the State of Massachusetts. The Declaration of Trust has been executed on behalf
of the Trust by a Trustee of the Trust in his capacity as Trustee of the Trust and not
individually. The obligations of this Agreement with respect to the Fund shall be binding upon the
assets and property of each such Fund individually, and not jointly, and shall not be binding upon
any Trustee, officer, employee, agent or shareholder, whether past, present, or future, of the
Trust individually, or upon the Trust generally or upon any other fund of the Trust. For the
avoidance of doubt, obligations of the Investment Adviser hereunder are solely binding upon the
Investment Adviser.
19. Notices. All notices, consents, waivers, and other communications under the Agreement, as
amended, shall be in writing and shall be given first via email to the addresses noted below and
then by personal delivery to the applicable party (which includes via hand delivery service or a
reliable nationally recognized overnight delivery or mail service, each of which shall provide
evidence of receipt to the applicable parties) at the addresses noted below, or at such other
address as each party hereto may direct by notice given in accordance with this paragraph. All
notices shall be deemed effective the next business day following delivery in accordance with this
paragraph.
| A. | if to the Subadviser, to: | ||
| Ivy Investment Management Company Global Director of Institutional Marketing 0000 Xxxxx Xxx. Xxxxxxxx Xxxx, XX 00000 Email: xxxxxxx@xxxxxxx.xxx With copies to the Investment Management Compliance (XXxxxxxxxxxx@xxxxxxx.xxx) and WRIMCO Operations (XXXXXXxxxxxxxxxxxx@xxxxxxx.xxx) departments at the same postal address. |
16
| B. | if to the Investment Adviser, to: | ||
| Pacific Life Fund Advisors LLC 000 Xxxxxxx Xxxxxx Xxxxx |
|||
| Xxxxxxx Xxxxx, XX 00000 Attention: Xxxxx X. Xxxxx, Vice President and Fund Advisor General Counsel Email: XxxxxxxxXxxxxxxxxxxxx@XxxxxxxXxxx.xxx Telephone number: (000) 000-0000 |
|||
| C. | if to the Trust, to: | ||
| Pacific Select Fund c/o Pacific Life Insurance Company 000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxx Xxxxx, XX 00000 Attention: Xxxxx X. Xxxxx, Vice President and Fund Advisor General Counsel Email: XxxxxxxxXxxxxxxxxxxxx@XxxxxxxXxxx.xxx Telephone number: (000) 000-0000 |
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. The parties to this Agreement hereby irrevocably agree
to submit to the jurisdiction of the courts located in the State of California for any action or
proceeding arising out of this Agreement, and hereby irrevocably agree that all claims in respect
of such action or proceeding shall be heard or determined in such courts.
(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.
17
(f) No provision of this Agreement may be changed, waived, discharged or terminated orally,
but only by an instrument in writing signed by the parties to this Agreement. Any amendment of this
Agreement shall be subject to the 1940 Act.
21. Confidentiality. In addition to other provisions of this Agreement related to
confidentiality obligations of the parties, each party shall treat all non-public information about
another party to this Agreement as confidential, proprietary information of such other party
(“Confidential Information”). Such Confidential Information includes but is not limited to
information about business operations, non-public Fund portfolio holdings, business and financial
information, methods, plans, techniques, processes, documents and trade secrets of a party. Each
party shall use Confidential Information only in furtherance of the purposes of this Agreement,
limit access to the Confidential Information within its organization to those employees who
reasonably require access to such Confidential Information and shall not disclose such Confidential
Information to any third parties except in connection with the obligations set forth in Section
2(e) hereof or as otherwise expressly provided for in this Agreement, and otherwise maintain
policies and procedures reasonably designed to prevent disclosure of the Confidential Information.
The Investment Adviser and the Trust agree that the Subadviser’s Confidential Information may not
be used as the basis to trade in any of the mutual funds managed by the Subadviser and/or its
affiliates, nor to purchase or sell shares of any security contained in the Confidential
Information, unless such Confidential Information has been made publicly available. The parties
acknowledge that “anonymous” data (not attributable to the Trust), when combined with other
clients’ data, is not Confidential Information. To the extent a party discloses Confidential
Information to a third party, as permitted herein, such disclosing party (a) shall ensure that,
prior to such disclosure, the recipient third party is subject to commercially reasonable
confidentiality obligations in writing with respect to the disclosed Confidential Information and
(b) shall be deemed in breach of this section 20 for any unauthorized disclosure of Confidential
Information by such recipient third party. Confidential Information shall not include anything
that (i) is or lawfully becomes in the public domain, other than as a result of a breach of an
obligation hereunder, (ii) is furnished to the applicable party by a third party having a lawful
right to do so, (iii) was known to the applicable party at the time of the disclosure or (iv) is
authorized in writing by the party whose Confidential Information is to be disclosed. Further, the
parties are authorized to disclose Confidential Information if required by law or regulatory
authorities having jurisdiction. The disclosing party shall, if permitted by applicable law, notify
the other party of such disclosure as soon as reasonably practicable.
18
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 Advisor Operations | Title: VP & Assistant Secretary | |||||||||
| IVY INVESTMENT MANAGEMENT COMPANY | ||||||||||
By:
|
/s/ Xxxx X. Xxxxxxx Xx. | By: | ||||||||
| Title: EVP & Chief Administrative Officer | Title: | |||||||||
| PACIFIC SELECT FUND | ||||||||||
By:
|
/s/ Xxxxxx X. Xxxxxxxx
|
By: | /s/ Xxxxxxx X. XxxXxxxx
|
|||||||
| Title: Vice President | Title: VP & Assistant Secretary | |||||||||
19
Exhibit A
PACIFIC SELECT FUND
FEE SCHEDULE
FEE SCHEDULE
Effective: November 1, 2013
Fund: Mid-Cap Growth Portfolio
The Investment Adviser will pay to Subadviser a monthly fee for its services for the above
noted Fund based on the following formula:
(a) The annual percentage of the combined* average daily net assets of the Mid-Cap Growth Portfolio
of Pacific Select Fund and the PL Mid-Cap Growth Fund of Pacific Life Funds according to the
following schedule:
| Rate% | Break Point (assets) | |
0.30%
|
on the first $2 billion | |
0.25%
|
on the excess |
(b) Multiplied by the ratio of the Mid-Cap Growth Portfolio’s average daily net assets over the
combined average daily net assets of the Mid-Cap Growth Portfolio and the PL Mid-Cap Growth Fund of
Pacific Life Funds.
| * | Assets are combined only while the Subadviser is managing both Funds. Otherwise rates presented above are applied as an annual percentage of the average daily net assets of the Mid-Cap Growth Portfolio. |
The fees for services shall be prorated for any portion of a year in which the Agreement is not
effective.
