AMENDED AND RESTATED
FUND MARKETING AND INVESTOR SERVICE AGREEMENT
between
GE INVESTMENT DISTRIBUTORS, INC.
and
PACIFIC SELECT DISTRIBUTORS, INC.
THIS AGREEMENT, made and entered into this 20th day of November, 2009, amends and
restates that certain other FUND MARKETING AND INVESTOR SERVICE AGREEMENT dated December 1, 2008,
by and between GE Investment Distributors, Inc. (“GEID”), a corporation organized under the laws of
the State of Delaware, and Pacific Select Distributors, Inc. (“Product Distributor”), a corporation
organized under the laws of the State of California.
RECITALS
(A) GE Investments Funds, Inc. (the “Company”) is a Virginia corporation registered under the
Investment Company Act of 1940, as amended, (the “1940 Act”) as an open-end management investment
company consisting of a number of investment portfolios.
(B) The Company issues a separate series of shares of capital stock for each investment
portfolio representing a fractional undivided interest in that portfolio. The series of shares
representing an interest in the investment portfolios listed on Schedule A (the “Funds”) are
further divided into classes, including Class 3 Shares. This Agreement relates exclusively to
Class 3 Shares (the “Shares”).
(C) Each series and class of the Company’s shares, including the Shares, are registered under
the Securities Act of 1933, as amended (the “1933 Act”) on Form N-1A. The term “Registration
Statement,” as used herein, means the Company’s 1933 Act Form N-1A registration statement,
including all prospectuses therein and exhibits thereto, as of the effective date of the most
recent post-effective amendment thereto.
(D) GEID is the distributor and principal underwriter of the Shares and is registered as a
broker-dealer under the Securities Exchange Act of 1934, as amended (the “1934 Act”) and is a
member of the Financial Industry Regulatory Authority, Inc. (“FINRA”).
(E) Product Distributor is the distributor and principal underwriter of variable annuity
contracts (the “Contracts”) and/or variable life insurance policies (the “Policies”) issued by
Pacific Life Insurance Company and Pacific Life & Annuity Company (each, an “Insurer”, together,
the “Insurers”) and is registered as a broker-dealer under the 1934 Act and is a member of FINRA.
(F) The Shares are offered and sold to separate accounts of the Insurers through which
Contracts or Policies are issued as investment options under such Contracts and Policies. Each
Insurer has entered into a participation agreement (a “Participation Agreement”) with the
Company, GEID and GE Asset Management Incorporated (“GEAM”) pursuant to which it purchases, holds,
exchanges and redeems the Shares for its separate accounts.
(G) “Personal Services” refers to the phrase “personal service and/or the maintenance of
shareholder accounts” as referenced in FINRA Conduct Rule 2830(b)(9) and having the same meaning
given to it in NASD Notices to Members 90-56, 92-41 and 93-12.
(H) “Sales Services” means services provided by Product Distributor or by a broker-dealer
having an agreement with Product Distributor to distribute Contracts and Policies (a “Selling
Broker-Dealer”), related to activities primarily intended to result in investment in the Shares by
owners or prospective owners of Contracts or Policies. Sales Services does not include Personal
Services provided by Product Distributor or a Selling Broker-Dealer to owners of Contracts or
Policies indirectly invested in Shares who are its customers.
(I) “Investor Services” shall mean record keeping and other administrative services provided
by Product Distributor or a Selling Broker-Dealer, an Insurer, a third-party administrator for an
Insurer, a retirement plan record keeper or administrator, transfer agent, or other financial
intermediary; and (2) Personal Services provided by Product Distributor or a Selling Broker-Dealer
to owners of Contracts or Policies indirectly invested in Shares who are its customers.
(J) As part of their efforts to distribute Contracts and Policies, Product Distributor and
Selling Broker-Dealers often provide Sales Services to the Company by promoting the Funds as
investment options under the Contracts and Policies. Likewise, Product Distributor and Selling
Broker-Dealers may provide, or arrange for others to provide, Investor Services. In this
connection, the Company has adopted a plan pursuant to which the Shares may each bear an expense
designed to cover some of the costs of such Sales Services and Investor Services (the “Distribution
and Service Plan”).
(K) As used herein, references to owners of Contracts and Policies include participants under
group Contracts and Policies if such participants have discretion to allocate purchase payments and
transfer Contract or Policy value attributable to them between and among investment options
available under the Contracts or Policies.
NOW THEREFORE, in consideration of the promises and mutual covenants herein, the parties agree
as follows:
1. Services Provided by the Product Distributors
(a) Sales Services. GEID hereby engages Product Distributor, and Product Distributor hereby
agrees, to promote investment in and indirectly distribute the Shares by inducing owners and
prospective owners of Contracts and Policies to invest purchase payments and accumulated values
under Contracts and Policies in sub-accounts of Insurers’ separate accounts that invest in such
Shares and to otherwise perform Sales Services for the Company. Such Sales Services include, but
are not limited to, the following:
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•
obtaining information for, and providing explanations to, owners or
prospective owners of Contracts and Policies, as well as representatives of
Selling Broker-Dealers and wholesale distributors of Contracts and Policies
regarding the Funds and the Shares;
•
holding seminars and sales meetings for its own representatives as well
as those of Selling Broker-Dealers and wholesale distributors of Contracts
and Policies and providing training to such persons regarding the Funds and
the Shares;
•
establishing and maintaining, and assisting Insurers to establish and
maintain, relationships with owners and prospective owners of Contracts and
Policies who are its customers for the primary purpose of encouraging
investment, or additional investments, in the Shares;
•
compensating its representatives or other of its sales personnel for
performing the foregoing services;
•
arranging for, assisting and encouraging Selling Broker-Dealers in
performing the foregoing services;
•
compensating Selling Broker-Dealers for performing the foregoing
services, including, without limitation, payment of “trail commissions” or
other commissions, concessions, or sales compensation,
•
reimbursing Selling Broker-Dealers for their expenses performing the
foregoing services;
•
developing, preparing, printing and mailing advertisements, sales
literature and other promotional materials relating to the Funds and the
Shares;
•
printing and mailing prospectuses, statements of additional information,
supplements thereto and shareholder reports to prospective owners of
Contracts and Policies, or current owners of Contracts or Policies who are
not indirectly invested in Shares; and
•
engaging in, or compensating Selling Broker-Dealers for engaging in, any
other activity primarily intended to result in the promotion of the Funds
and the Shares that is permitted by the Distribution and Service Plan.
(b) Investor Services — Recordkeeping and Other Administrative Services. GEID is not
engaging Product Distributor to provide, or arrange for Insurers or other parties to provide,
Investor Services for the Company in the form of recordkeeping and other administrative services.
(c) Investor Services — Personal Services. GEID hereby engages Product Distributor, and
Product Distributor hereby agrees, to provide, or arrange for Selling Broker-Dealers to provide,
Investor Services for the Company in the form of Personal Services to owners of Contracts and
Policies such as:
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•
maintaining accounts for and relationships with owners of Contracts and
Policies who at the time are indirectly invested in Shares; and
•
providing investor liaison to owners of Contracts and Policies who at
the time are indirectly invested in Shares, such as responding to their
inquiries and providing them with information about their investments.
2. Compensation
(a) Rates of Compensation. For the services identified above, GEID, on behalf of the Company
and the Funds, agrees to pay Product Distributor compensation at the following annual rates:
(i) The amount of compensation paid by GEID to Product Distributor in any fiscal year
of the Company for both Sales Services and Investor Services shall not exceed 0.25% of the
average daily net assets of a Fund attributable to Class 3 Shares supporting Contracts or
Policies owned by customers of Product Distributor or Selling Broker-Dealers; provided,
however, that the amount of any such compensation paid by GEID to Product Distributor in any
fiscal year for the Personal Services component of Investor Services shall not exceed 0.25%
of the average daily net assets of a Fund attributable to Class 3 Shares supporting
Contracts or Policies owned by customers of Product Distributor or Selling Broker-Dealers.
(ii) GEID and Product Distributor agree that, notwithstanding the foregoing, GEID
shall adjust such compensation whenever necessary to ensure that no payment is made by the
Company on behalf of Shares of a Fund in excess of the applicable limits on: (A) sales
charges under FINRA Conduct Rule 2830(d)(3); or (B) service fees under FINRA Conduct Rule
2830(d)(5).
(b) Payment of Compensation. GEID agrees to pay the Product Distributor the compensation due
under this Agreement on a quarterly basis calculated at the annual rates shown above. GEID shall
calculate and make this payment within 90 days of the end of the calendar quarter without demand or
notice from the Insurer. Notwithstanding the foregoing, Product Distributor understands and
acknowledges that the Company may, without prior notice, suspend or eliminate the payment of
compensation to GEID, including payments under the Distribution and Service Plan, by amending or
supplementing its prospectuses for the Shares. In such an event, GEID shall have no obligation to
pay any further compensation to Product Distributor for Sales Services or Investor Services
provided by Product Distributor or Selling Broker-Dealers unless and until the Company pays GEID
for such services.
(c) Character of Compensation. GEID and Product Distributor agree that the compensation paid
by GEID to Product Distributor described in Section 2(a) of this Agreement is either for Sales
Services or for a combination of Sales Services and Investor Services in the form of Personal
Services, as those terms are defined in this Agreement. In particular, Product Distributor
understands and acknowledges that the compensation paid to it by GEID is not to be used for
activities primarily intended to result in the sale of Contracts and Policies unless such
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activities entail a sufficiently large element of promotion of the Funds and the Class 3 Shares
that the activities clearly come within the definition of Sales Services in this Agreement.
(d) Recording and Reporting of Compensation. Product Distributor understands that GEID will
record on its books and records, as the purpose for each quarterly payment to Product Distributor,
the breakdown of Sales Services and Investor Services.
(e) Selling Broker-Dealers. The Product Distributor agrees that it has sole responsibility
for compensating Selling Broker-Dealers for their provision of Sales Services or Investor Services
covered by this Agreement and that neither GEID, nor the Company, have any obligation to compensate
Selling Broker-Dealers in any manner. Product Distributor shall not pay a Selling Broker-Dealer
compensation for providing the Personal Services component of Investor Services under this
Agreement in any fiscal year of the Company in excess of an amount equal to 0.25% of the average
daily net assets of a Fund attributable to the Class 3 Shares supporting Contracts or Policies
owned by customers of that Selling Broker-Dealer.
3. General Covenants
(a) Role of Product Distributor. In performing services under this Agreement, Product
Distributor is acting as agent for the Insurers. Product Distributor is not an agent of GEID or
the Company and shall have no authority to act for or represent GEID or the Company.
(b) Responsibilities of Product Distributor. Product Distributor agrees that in providing
Sales Services under this Agreement, the Selling Broker-Dealer is solely responsible for all
recommendations made to owners or prospective owners of Contracts or Policies regarding the Funds
and the Shares, including all suitability determinations made in connection with such
recommendations. In this regard, Product Distributor agrees that neither GEID, nor the Company,
nor its Funds, nor the agents or affiliates of the foregoing, have any responsibility for such
recommendations or suitability determinations made in connection with such recommendations, the
manner of Product Distributor’s or a Selling Broker-Dealer’s performance of Sales Services or
Investor Services under this Agreement, or any acts or omissions related thereto. Similarly,
Product Distributor agrees that neither GEID, nor the Company, nor its Funds, nor the agents or
affiliates of the foregoing, have any responsibility to determine whether or not a purchase,
exchange or redemption of Shares by an Insurer is the net result of transactions in separate
account units authorized by owners of Contracts and Policies. Consequently, Product Distributor
agrees that GEID, the Company, the Funds, and their agents and affiliates may rely conclusively on
any purchase or redemption order for the Shares received from an Insurer pursuant to a
Participation Agreement.
(c) Relationship to Participation Agreements. GEID and Product Distributor agree that the
Participation Agreement between and among each Insurer, GEID, GEAM and the Company shall govern the
purchase, exchange or redemption of the Shares by each Insurer for its separate accounts. To the
extent that any provision of a Participation Agreement conflicts with a provision of this
Agreement, the Participation Agreement shall govern. In particular, and without limiting the
generality of the foregoing, Product Distributor agrees to comply, or assist
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each Insurer to comply, with each Insurer’s obligations under the applicable Participation
Agreement relating to:
•
each Insurer’s obligation to maintain effective anti- money laundering
policies and procedures;
•
each Insurer’s obligation to maintain effective policies and procedures
to prevent frequent or disruptive trading in separate account units and
assist GEID, GEAM and the Company in maintaining effective policies and
procedures for the Company to prevent frequent or disruptive trading in
Shares;
•
each Insurer’s obligations in connection with the preparation and
distribution of sales literature or other marketing materials regarding the
Company, the Funds and/or the Shares.
(d) GEID Compliance With Law and Company Policies. In the performance of this Agreement, GEID
agrees to comply with all applicable laws, rules, and regulations, including, without limitation,
the 1940 Act, 1933 Act and 1934 Act, and all rules and regulations adopted thereunder, as well as
all rules of FINRA. Likewise, in the performance of this Agreement, GEID will act in conformity
with:
•
the Registration Statement;
•
the Distribution and Service Plan;
•
the terms of the distribution agreement between itself and the Company;
•
the terms of Participation Agreements covering the Contracts and
Policies;
•
written compliance policies and procedures of the Company or itself
relating to matters covered by this Agreement;
•
instructions from the Company or any of its officers; and
•
instructions from the Company’s board of directors.
(e) Product Distributor’s Interpretation and Compliance With Law. Product Distributor shall
be solely responsible for its own compliance with applicable law and regulations and shall rely
exclusively on its own determination, or that of its legal advisers, that the performance of its
duties under this Agreement complies with such laws and regulations.
(f) Agreements With Selling Broker-Dealers. In furtherance of its duties under this
Agreement, Product Distributor may enter into agreements with the Selling Broker-Dealers pursuant
to which the Selling Broker-Dealers sell the Contracts and Policies and promote the indirect sale
of Shares by promoting the Funds as investment options under the Contracts and Policies. Product
Distributor agrees that its agreements with Selling Broker-Dealers shall include assurances from
Selling Broker-Dealers to it that conform, in substance, to those that it provides to GEID in
Sections 2(c), 2(d), 2(e), 3(b), and 3(e) of this Agreement.
(g) Status of Product Distributor Under Rule 38a-1. GEID understands and acknowledges that
Product Distributor is not a principal underwriter or administrator to the Company as referenced in
Rule 38a-1(a)(2) under the 1940 Act. Product Distributor understands
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and acknowledges that it is a principal underwriter, as referenced in Rule 38a-1(a)(2) under
the 1940 Act, to the separate accounts of each Insurer that are registered as investment companies
under the 1940 Act.
4. Representations and Warranties
(a) Validly Existing in Good Standing. Product Distributor represents and warrants that it
is a corporation duly organized and validly existing in good standing under the laws of the State
of California, and is qualified to act as a broker-dealer in the states and other jurisdictions in
which it transacts business. Without limiting the generality of the foregoing, Product Distributor
represents and warrants that it is the distributor and principal underwriter of the Contracts and
Policies and is registered as a broker-dealer under the 1934 Act and is a member in good standing
of FINRA. Product Distributor will maintain all registrations, qualifications and memberships
required by the terms of this Agreement in full force and effect throughout the term of this
Agreement.
(b) Duly Authorized and Enforceable Agreement. Product Distributor represents and warrants
that its execution and delivery of this Agreement and its performance of the services contemplated
herein have been duly authorized by all necessary corporate action, and all other authorization and
approvals (if any) required for lawful execution and delivery of this Agreement, and each of their
performance hereunder, have been obtained. Upon execution and delivery by Product Distributor,
this Agreement will constitute a valid and binding agreement, enforceable against Product
Distributor in accordance with its terms.
(c) Character of Compensation. Product Distributor represents and warrants that it will use
the compensation paid to it by GEID under this Agreement for Sales Services or a combination of
Sales Services and Investor Services and will not use such compensation to finance activities
primarily intended to result in the sale of Contracts or Policies.
(d) Reports. Product Distributor represents and warrants that it will provide upon request
reports to GEID properly reflecting the breakdown of its expenses in promoting the Funds and the
Shares between Sales Services and Investor Services in the form of Personal Services and properly
reflecting the breakdown of Sales Services in the following categories:
•
advertising;
•
printing and mailing Fund prospectuses to other than current owners of
Contracts and Policies indirectly invested in Shares;
•
compensation to Selling Broker-Dealers;
•
compensation to representatives of Product Distributor;
•
interest, carrying or other financial charges; and
•
other expenses.
Product Distributor also represents and warrants that it will record on its books and records
compensation paid under this Agreement in a manner consistent with all applicable laws, rules, and
regulations.
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(f) Compliance With Law and Company Policies. Product Distributor represents and warrants
that it will comply with all applicable laws, rules, and regulations, including, without
limitation, the 1940 Act, 1933 Act and 1934 Act, and all rules and regulations adopted thereunder,
as well as all rules of FINRA. Likewise, in the performance of this Agreement, Product Distributor
will each act in conformity with:
•
the Registration Statement;
•
the Distribution and Service Plan;
•
the terms of the Contracts and Policies and prospectuses or other
disclosure statements for the Contracts and Policies; and
•
written compliance policies and procedures of the Insurers or itself
relating to matters covered by this Agreement.
(g) “Market Timing.”Product Distributor represents and warrants that it will not knowingly
promote the Shares or the Funds to owners or prospective owners of Contracts or Policies who engage
in, or may engage in, frequent or disruptive trading in separate account units that has the
potential to result in frequent or disruptive trading in Shares, or otherwise knowingly facilitate
the activities of such owners and prospective owners.
(h) Validly Existing in Good Standing. GEID represents and warrants that it is a corporation
duly organized and validly existing in good standing under the laws of the State of Delaware, and
is qualified to act as a broker-dealer in the states and other jurisdictions in which it transacts
business. Without limiting the generality of the foregoing, GEID represents and warrants that it
is the distributor and principal underwriter of the Shares and is registered as a broker-dealer
under the 1934 Act and is a member in good standing of FINRA. GEID will maintain all
registrations, qualifications and memberships required by the terms of this Agreement in full force
and effect throughout the term of this Agreement.
(i) Duly Authorized and Enforceable Agreement. GEID represents and warrants that the
execution and delivery of this Agreement and the performance of the services contemplated hereby by
GEID have been duly authorized by all necessary corporate action, and all other authorization and
approvals (if any) required for lawful execution and delivery of this Agreement, and its
performance hereunder, have been obtained. Upon execution and delivery by GEID, this Agreement
will constitute a valid and binding agreement, enforceable against GEID in accordance with its
terms.
5. Annual Certification
Product Distributor shall provide to GEID upon request written certification of the continued
effectiveness of each representation and warranty made by it in Section 4 of this Agreement.
Likewise, GEID shall provide to Product Distributor upon request written certification of the
continued effectiveness of each representation and warranty made by it in Section 4 of this
Agreement.
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6. Indemnification
(a) Indemnification by Product Distributor. GEID, the Company, the Funds and their affiliates
shall not be responsible for, and Product Distributor shall indemnify and hold GEID, the Company,
the Funds and their affiliates and their officers, directors, employees, agents, and persons, if
any, who control them (within the meaning of the 1940 Act) harmless from and against any and all
losses, damages, costs, charges, counsel fees, payments, expenses, and liability, arising out of or
attributable to:
•
Product Distributor’s lack of good faith or willful misconduct in
carrying out its duties and responsibilities under this Agreement;
•
the material failure or alleged (by a regulatory agency) material
failure of Product Distributor to comply with any applicable law, rule or
regulation in connection with the discharge of any obligations under this
Agreement; or
•
any material breach or alleged material breach by Product Distributor of
any provision of this Agreement, including any material breach or alleged
material breach by Product Distributor of any representation made by it in
the Agreement.
Product Distributor will not be obligated to indemnify any entity or person pursuant to this
Section 6(a) against any liability to which GEID, the Company, the Funds and their affiliates, and
their officers and directors, or any controlling person would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in performance of, or reckless disregard of, the
obligations and duties set forth in this Agreement.
(b) Indemnification by GEID. Product Distributor shall not be responsible for, and GEID shall
indemnify and hold Product Distributor and its affiliates and their officers, directors, employees,
agents, and persons, if any, who control it (within the meaning of the 1940 Act) harmless from and
against any and all losses, damages, costs, charges, counsel fees, payments, expenses, and
liability, arising out of or attributable to:
•
GEID’s lack of good faith or willful misconduct in carrying out its
duties and responsibilities under this Agreement;
•
the material failure or alleged (by a regulatory agency) material
failure of GEID to comply with any applicable law, rule or regulation in
connection with the discharge of any obligations under this Agreement;
•
any material breach or alleged material breach by GEID of any provision
of this Agreement, including any material breach or alleged material breach
by GEID of any representation made by it in the Agreement; or
•
any untrue statement or alleged untrue statement of material fact, or
any omission or alleged omission to state a material fact, in the
Registration statement or in any written sales literature or other
marketing materials provided to Product Distributor by GEID, the Company or
their affiliates.
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GEID will not be obligated to indemnify any entity or person pursuant to this Section 6(b)
against any liability to which Product Distributor, its officers and directors, or any controlling
person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence
in performance of, or reckless disregard of, the obligations and duties set forth in this
Agreement.
7. Amendment
This Agreement may be amended only by the mutual written agreement of GEID and Product
Distributor.
8. Term
This Agreement shall remain in full force and effect for a period of one year from November20, 2009, and shall be automatically renewed thereafter for successive one-year periods, unless
otherwise terminated in accordance with Section 9.
9. Termination
(a) This Agreement shall terminate upon mutual agreement of GEID and Product Distributor in
writing.
(b) Either party to this Agreement may terminate this Agreement at the end of any one-year
term by written notice to the other party at least 30 days before the end of such term.
(c) This Agreement shall automatically terminate upon the termination of the Participation
Agreement.
(d) This Agreement shall terminate in the event that the Company ceases paying compensation to
GEID under the Distribution and Service Plan or upon the termination of the Plan.
(e) Section 6 of this Agreement shall survive any termination of this Agreement.
10. Notices
All notices, requests, demands and other communications hereunder shall be in writing and
shall be deemed to have been duly given if delivered:
(a) Successors and Assigns. This Agreement shall be binding upon the parties hereto and their
transferees, successors and assigns. The benefits of and the right to enforce this Agreement shall
accrue to the parties and their transferees, successors, and assigns.
(b) Assignment. Neither party may assign this Agreement, or any of the rights, obligations,
or liabilities under the Agreement, without the written consent of the other party.
(c) Intended Beneficiaries. No provision of this Agreement shall be construed to give any
person or entity other than the parties hereto any legal or equitable claim, right or remedy. The
Agreement is intended for the exclusive benefit of the parties hereto.
(d) Counterparts. This Agreement may be executed in counterparts, each of which shall be
deemed to be an original, but both of which shall together constitute one and the same instrument.
(e) Applicable Law. This Agreement shall be interpreted, construed, and enforced in
accordance with the laws of the State of New York, without reference to the conflict of laws
principles thereof.
(f) Severability. If any portion of this Agreement shall be found to be invalid or
unenforceable by a court or tribunal or regulatory agency of competent jurisdiction, the remainder
shall not be affected thereby, but shall have the same force and effect as if the invalid or
unenforceable portion had not been part of the Agreement.
(g) Prior Agreement. This Agreement supersedes and supplants a prior agreement covering Class
4 Shares of the Funds between and among the parties for the period December 1, 2008 through
November 19, 2009.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
GE INVESTMENT
PACIFIC SELECT DISTRIBUTORS, INC.
DISTRIBUTORS, INC.
By:
By:
Name:
Name:
Title:
Title:
Senior Vice President & Chief Financial Officer
Attest:
Corporate Secretary
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SCHEDULE A
Total Return Fund — Class 3
A-1
Dates Referenced Herein and Documents Incorporated by Reference
