DISTRIBUTION AGREEMENT
Exhibit
(e)(1)
This Amended and Restated Distribution Agreement effective May 1, 2007 (“Agreement”) by and
between Pacific Select Fund (the “Fund”) and Pacific Select Distributors, Inc. (“PSD”), amends and
restates the prior Amended and Restated Distribution Agreement dated November 14, 2005.
WHEREAS, the Fund is an open-end, diversified management investment company registered under
the Investment Company Act of 1940, as amended (the “1940 Act”); and
WHEREAS, the Fund is authorized to issue shares of beneficial interest (“Shares”) in separate
series (each a “Portfolio” and collectively the “Portfolios”) with each such Portfolio representing
interests in a separate portfolio of securities and other assets; and
WHEREAS, the Fund intends, on behalf of each existing Portfolio together with all other
Portfolios subsequently established by the Fund, as set forth in Exhibit A (attached hereto) which
may from time to time be amended, to retain Pacific Select Distributors, Inc. (“PSD”); and
WHEREAS, PSD wishes to render the services hereunder; and
WHEREAS, the Fund has adopted a non 12b-1 service plan (the “Service Plan”);
NOW THEREFORE, in consideration of the mutual promises and covenants hereinafter set forth,
the parties hereto agree as follows:
1. Appointment and Acceptance. The Fund hereby appoints PSD as distributor of the
Shares of the Portfolios on the terms and for the period set forth in this Agreement, and PSD
hereby accepts such appointment and agrees to render the services and undertake the duties set
forth herein.
2. General Provisions.
(a) In performing its duties as distributor, PSD will act in conformity with the
registration statement of the Fund on Form N-1A (“the Prospectus”), as amended from time to
time and with any instructions received from the Board of Trustees of the Fund (the
“Board”), the requirements of the Securities Act of 1933, as amended (the “Securities
Act”), the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the 1940 Act,
and all other applicable federal and state laws and regulations.
(b) PSD holds itself available to receive orders for the purchase or redemption of
Shares and will accept or reject orders to purchase such Shares on behalf of the Fund in
accordance with the provisions of the Prospectus, and will transmit such orders as are so
accepted to the Fund’s transfer agent promptly for processing.
(c) PSD shall not be obligated to sell any certain number of Shares. Except as
provided in this Agreement, no commission or other fee will be paid to PSD in connection
with the sale of Shares.
(d) PSD shall assist the Fund in complying with SEC Rule 22c-2 under the 1940 Act, by
(i) entering into written agreements (“22c-2 Agreement”) with Financial Intermediaries, as
such term is defined in SEC Rule 22c-2, that submit purchase or redemption orders directly
to the Fund for the purpose of providing the Fund’s management with access to information
about transactions in omnibus accounts to enable the Fund to identify investors whose
trading activity violates any Fund restrictions on short-term trading and similar abusive
transactions, as described in the Fund’s Prospectus; (ii) requesting from Financial
Intermediaries, when requested by the management of the Fund, certain investor information
in accordance with the terms set forth in the applicable 22c-2 Agreement; and (iii)
providing such investor information to the Fund’s management. The 22c-2 Agreement may be
in the form of operable language added to the existing agreement with the Financial
Intermediary or into standard selling agreements.
3. PSD Expenses. During the term of this Agreement, except to the extent that PSD is
entitled to reimbursement under the provision of the Service Plan for the Funds, PSD will bear all
its expenses in complying with this Agreement including the following expenses:
(a) costs of sales presentations, preparation and delivery of advertising and sales
literature, and any other marketing efforts by PSD in connection with the distribution or
sale of Shares; and
(b) any compensation paid to employees of PSD in connection with the distribution or
sale of the Shares.
4. Fund Expenses. The Fund shall bear all of its other expenses not specifically
assumed or otherwise to be provided by PSD under this Agreement or the Service Plan, including, but
not limited to:
(a) preparation and setting in type, printing and distributing reports and other
communications, proxies, prospectuses and statements of additional of information to
existing shareholders;
(b) registration of the Fund’s Shares with the Securities and Exchange Commission, and
registration or notification of the sale of the Shares with any applicable state securities
commissioners; and
(c) qualification of the Fund’s Shares for sale in jurisdictions designated by PSD.
5. Sale of Shares to Distributor and Sales by Distributor.
(a) All orders through PSD shall be subject to acceptance and confirmation by the
Fund.
(b) Prior to the time of transfer of any Shares by the Fund to, or on the order of,
PSD or any introducing broker, participating broker or other financial intermediary, PSD
shall pay or cause to be paid to the Fund or to its order an amount in federal funds equal
to the applicable net asset value of the Shares. Upon receipt of registration instructions
in proper form, PSD will transmit or cause to be transmitted such instructions to the Fund
or its agent for registration of the Shares purchased.
6. Fees. In consideration of personal services rendered or procured to or for
shareholders of the Fund and/or maintenance of the Fund’s shareholder accounts pursuant to this
Agreement and the Service Plan, the Fund agrees, to the extent legally permissible, to pay PSD a
fee (the “Service Fee”). The Service Fee shall be paid at the rate of 0.20% on an annualized basis
of the average daily net assets of each Portfolio, provided that, at any time such payment is made,
whether or not the Service Plan continues in effect, the making of the payment will not cause any
limitation on such payments established by the Service Plan to be exceeded. The Service Fee shall
be calculated and accrued daily and paid monthly in arrears or at such intervals the Board may
determine otherwise.
PSD may pay agents or other institutions with respect to all or a portion of the Service Fee,
and such additional amounts out of its own assets as it may deem advisable, to obtain various
administrative services or service activities for the Fund in its discretion, so long as any such
payments are provided for in the Fund’s then current Registration Statement or Amendments thereto
and the Service Plan and to the extent allowed by applicable federal and state securities laws and
regulations.
7. Reservation of Right Not to Sell. The Fund reserves the right to refuse at any time
or times to sell any of its Shares for any reason deemed adequate by it.
8. Liability and Indemnification.
(a) PSD shall not be liable for any error of judgment or mistake of law or for any
loss suffered by the Fund in connection with the matters to which this Agreement relates,
except a loss resulting from its willful misfeasance, bad faith or negligence in the
performance of its duties under this Agreement. Any person, even though also an officer,
employee or agent of PSD, who may be or become an officer, director, employee or agent of
the Fund shall be deemed, when rendering services to the Fund or acting in any business of
the Fund, to be rendering such services to or acting solely for the Fund and not as an
officer, partner, employee or agent or one under the control or direction of PSD even
though paid by PSD.
(b). PSD hereby agrees to indemnify and hold harmless the Fund and its officers and
Trustees against any and all losses, liabilities, damages and claims arising out of or
based upon any untrue or alleged untrue statement or representation made (except for such
statements made in reliance on any prospectus, registration statement or sales material
supplied by the Fund), any failure to deliver a currently effective prospectus, or the use
of any unauthorized sales literature by any officer, employee or agent of PSD in connection
with the offer or sale of Fund shares. PSD shall reimburse each such person for any legal
or other expenses reasonably incurred in connection with investigating or defending
any such loss, liability, damage or claim.
(c) Promptly after receipt by a party entitled to indemnification under this section
(“indemnified party”) of notice of the commencement of any action, if a claim for
indemnification in respect thereof is to be made against PSD, such indemnified party will
notify PSD in writing of the commencement thereof, and the omission to so notify PSD will
not relieve it from any liability under this section, except to the extent that the
omission results in a failure of actual notice to PSD and it is damaged solely as a result
of the failure to give such notice.
9. Effective Date and Termination of this Agreement. This Agreement shall take effect
on the on the date first written above, and shall continue in effect, unless sooner terminated as
provided herein, for one year from such date and shall continue from year to year thereafter so
long as such continuance is specifically approved at least annually (a) by the vote of a majority
of those members of the Board of Trustees of the Fund who are not parties to this Agreement or
interested persons (as defined in the 0000 Xxx) of any such party, cast in person at a meeting
called for the purpose of voting on such approval, and (b) either by a majority of the entire Board
of Trustees of the Fund or by a majority vote (as defined in the Prospectus) of the shareholders of
the Fund; provided, however, that this Agreement may be terminated without penalty by the
Board of Trustees of the Fund; by a majority vote (as defined in the Prospectus) of the
shareholders of the Fund on 60 days’ written notice to PSD, or by PSD at any time, without payment
of any penalty, on 90 days’ written notice to the Fund. This Agreement will automatically and
immediately terminate in the event of its assignment (as defined in the 1940 Act).
10. Notices. Notices of any kind to be given to PSD by the Fund shall be in writing
and shall be duly given if mailed, first class postage prepaid, or delivered to 000 Xxxxxxx Xxxxxx
Drive, P.O. Box 9000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, or at such other address or to such
individual as shall be specified by PSD to the Fund. Notices of any kind to be given to the Fund
shall be in writing and shall be duly given if mailed, first class postage prepaid, or delivered to
000 Xxxxxxx Xxxxxx Drive, X.X. Xxx 0000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 or at such other address
or to such individual as shall be specified by the Fund.
11. Non-Exclusivity. The services of PSD to the Fund under this Agreement are not to
be deemed exclusive, and PSD shall be free to render similar services or other services to others
so long as its services hereunder are not impaired thereby.
12. Reports. PSD shall prepare reports for the Board of Trustees of the Fund on a
quarterly basis showing such information as shall be reasonably requested by the Board from time to
time.
13. Independent Contractor. PSD shall for all purposes herein provided be deemed to
be an independent contractor and, unless otherwise expressly provided or authorized, shall have no
authority to act for or represent the Fund in any way or otherwise be deemed an agent of the Fund.
It is understood and agreed that PSD, by separate agreement with the Fund, may also serve the Fund
in other capacities.
14. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original.
15. Governing Law. This Agreement shall be governed by the laws of California,
provided that nothing herein shall be construed in a manner inconsistent with the 1940 Act, the
Exchange Act, the Securities Act, or any rule or order of the Securities and Exchange Commission to
any national or regional self-regulating organization, such as the National Association of
Securities Dealers or the New York Stock Exchange.
16. Severability. 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.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their
officers designated below as of the day and year first above written.
| PACIFIC SELECT DISTRIBUTORS, INC. | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxxx
|
|||||
| Name: | Xxxxxx X. Xxxxxxxx | |||||
| Title: | Director, Chairman & CEO | |||||
| By: | /s/ Xxxxxx X. Milfs
|
|||||
| Name: | Xxxxxx X. Milfs | |||||
| Title: | Vice President & Secretary | |||||
| PACIFIC SELECT FUND | ||||||
| By: | /s/ Xxxxxx Xxxxxxxx
|
|||||
| Name: | Xxxxxx Xxxxxxxx | |||||
| Title: | Vice President | |||||
