AMENDED AND RESTATED DISTRIBUTION AGREEMENT Premier VIT (the “Trust”) 1345 Avenue of the Americas New York, NY 10105-4800 June 7, 2005 as amended and restated as of September 10, 2009
Exhibit (e)(2)
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
June 7, 2005
as amended and restated as of
September 10, 2009
as amended and restated as of
September 10, 2009
Allianz Global Investors Distributors LLC (the “Distributor”)
1345 Avenue of the Americas
Xxx Xxxx, XX 00000
1345 Avenue of the Americas
Xxx Xxxx, XX 00000
Dear Sirs:
This will confirm the agreement between the undersigned (the “Trust”) and you (the
“Distributor”), amending and restating the Distribution Agreement dated June 7, 2005 between the
Distributor and the Trust, as follows:
1. Description of Trust and Classes of Shares. The Trust is an open-end investment company
which presently has the following four (4) investment portfolios: NACM Small Cap Portfolio; OpCap
Managed Portfolio; OpCap Mid Cap Portfolio; and NFJ Dividend Value Portfolio (each a “Portfolio,”
and collectively, the “Portfolios”). Additional investment portfolios may be established in the
future. This Agreement shall pertain to the Portfolios and to such additional investment portfolios
as shall be designated in Supplements to this Agreement, as further agreed between the Trust and
the Distributor. A separate series of shares of beneficial interest in the Trust is offered to
investors with respect to each Portfolio, and each Portfolio currently offers its shares with
respect to up to two classes: Class I shares and Class II shares. The Trust engages in the business
of investing and reinvesting the assets of the Portfolios in the manner and in accordance with the
investment objectives and restrictions specified in the Trust’s currently effective Prospectus or
Prospectuses and Statement of Additional Information (together, the “Prospectus”) relating to
Class I and Class II shares of the Portfolios included in the Trust’s Registration Statement, as
amended from time to time (the “Registration Statement”), as filed by the Trust under the
Investment Company Act of 1940, as amended (together with the rules and regulations thereunder, the
“1940 Act”) and the Securities Act of 1933, as amended (together with the rules and regulations
thereunder, the “1933 Act”). Copies of the documents referred to in the preceding sentence have
been furnished to the Distributor. Any amendments to those documents shall be furnished to the
Distributor promptly. The Trust has adopted a Distribution and Servicing Plan pursuant to Rule
12b-1 under the 1940 Act (“Rule 12b-1”) with respect to Class II shares (the “Class II Plan”).
2. Appointment and Acceptance. The Trust hereby appoints the Distributor as a distributor of
shares of beneficial interest in the Trust (the “shares”) which may from time to
time be registered
under the 1933 Act and as servicing agent of shareholders and shareholder accounts of the Trust,
and the Distributor hereby accepts such appointment in accordance with the terms and conditions set
forth herein. As the Trust’s agent, the Distributor shall, except to the extent provided in Section
4 hereof, be the exclusive distributor for the unsold portion of the shares.
3. Sale of Shares to Distributor and Sales by Distributor. The Distributor will have the
right, as principal, to sell shares of each Class of each Portfolio against orders therefor at net
asset value. For such purposes, the Distributor will have the right to purchase shares at net asset
value. The Distributor will also have the right, as agent, to sell shares of a Portfolio indirectly
through broker dealers who are members of the Financial Industry Regulatory Authority, Inc.
(“FINRA”) and who are acting as introducing brokers pursuant to clearing agreements with the
Distributor (“introducing brokers”), to broker dealers which are members of FINRA and who have
entered into selling agreements with the Distributor (“participating brokers”) or through other
financial intermediaries, in each case against orders therefor. The price for introducing brokers,
participating brokers and other financial intermediaries shall be net asset value.
The Trust shall sell through the Distributor, as the Trust’s agent, shares to eligible
investors as described in the Prospectus. All orders through the Distributor shall be subject to
acceptance and confirmation by the Trust. The Trust shall have the right, at its election, to
deliver either shares issued upon original issue or treasury shares.
Prior to the time of transfer of any shares by the Trust to, or on the order of, the
Distributor or any introducing broker, participating broker or other financial intermediary, the
Distributor shall pay or cause to be paid to the Trust or to its order an amount in New York
clearing house funds equal to the applicable net asset value of the shares. Upon receipt of
registration instructions in proper form, the Distributor will transmit or cause to be transmitted
such instructions to the Trust or its agent for registration of the shares purchased.
The public offering price of the shares shall be the net asset value of such shares as set
forth in the Prospectus. In no event will any applicable sales charge or underwriting discount
exceed the limitations on permissible sales loads imposed by Section 22(b) of the 1940 Act and NASD
Rule 2830(d)(1) of the Conduct Rules of FINRA, as either or both may be amended from time to time.
On every sale, the Trust shall receive the net asset value of the shares. The net asset value
of shares shall be determined in the manner provided in the Amended and Restated Agreement and
Declaration of Trust of the Trust, as from time to time amended or restated (the “Declaration of
Trust”), and the Amended and Restated By-laws of the Trust, as from time to time amended or
restated (the “By-laws”).
4. Sales of Shares by the Trust. In addition to sales by the Distributor, the Trust reserves
the right to issue shares at any time directly to its shareholders as a stock dividend or stock
split or to sell shares to its shareholders or other persons at not less than net asset value to the extent that the Trust, its officers, or other persons associated with the Trust
participate in the
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sale, or to the extent that the Trust or any transfer agent for its shares
receive purchase requests for shares.
5. Reservation of Right Not to Sell. The Trust reserves the right to refuse at any time or
times to sell any of its shares for any reason deemed adequate by it.
6. Use of Sub-Agents; Non-exclusivity. The Distributor may employ such sub-agents, including
one or more participating brokers or introducing brokers, for the purposes of selling shares of the
Trust as the Distributor, in its sole discretion, shall deem advisable or desirable. The
Distributor may enter into similar arrangements with other issuers and, except to the extent
necessary to perform its obligations hereunder, nothing herein shall be deemed to limit or restrict
the right of the Distributor, or any affiliate of the Distributor, or any employee of the
Distributor, to engage in any other business or to devote time and attention to the management or
other aspects of any other business, whether of a similar or dissimilar nature, or to render
services of any kind to any other corporation, firm, individual or association.
7. Repurchase of Shares. The Distributor will act as agent for the Trust in connection with
the repurchase and redemption of shares by the Trust upon the terms and conditions set forth in the
Prospectus or as the Trust acting through its Trustees may otherwise direct. The Distributor may
employ such sub-agents, including one or more participating brokers or introducing brokers, for
such purposes as the Distributor, in its sole discretion, shall deem to be advisable or desirable.
8. Basis of Purchases and Sales of Shares. The Distributor’s obligation to sell shares
hereunder shall be on a best efforts basis only and the Distributor shall not be obligated to sell
any specific number of shares. Shares will be sold by the Distributor only against orders therefor.
The Distributor will not purchase shares from anyone other than the Trust except in accordance with
Section 7 hereof, and will not take “long” or “short” positions in shares contrary to any
applicable provisions of the Declaration of Trust.
9. Rules of Securities Associations, etc. As the Trust’s agent, the Distributor may sell and
distribute shares in such manner not inconsistent with the provisions hereof and the Trust’s
Prospectus as the Distributor may determine from time to time. In this connection, the Distributor
shall comply with all laws, rules and regulations applicable to it, including, without limiting the
generality of the foregoing, all applicable rules or regulations under the 1940 Act and of any
securities association registered under the Securities Exchange Act of 1934, as amended (together
with the rules and regulations thereunder, the “1934 Act”). The Distributor will conform to the
Conduct Rules of FINRA and the securities laws of any jurisdiction in which it sells, directly or
indirectly, any shares. The Distributor also agrees to furnish to the Trust sufficient copies of
any agreement or plans it intends to use in connection with any sales of shares in adequate time
for the Trust to file and clear them with the proper authorities before they are put in use, and
not to use them until so filed and cleared.
10. Independent Contractor. The Distributor shall be an independent contractor and neither the
Distributor, nor any of its officers or employees as such, is or shall be an employee of
the Trust. The Distributor is responsible for its own conduct and the employment, control and
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conduct of its agents and employees and for injury to such agents or employees or to others through
its agents or employees. The Distributor assumes full responsibility for its agents and employees
under applicable statutes and agrees to pay all employer taxes thereunder.
11. Registration and Qualification of Shares. The Trust agrees to execute such papers and to
do such acts and things as shall from time to time be reasonably requested by the Distributor for
the purpose of qualifying and maintaining qualification of the shares for sale under the so-called
Blue Sky Laws or insurance laws of any state or for maintaining the registration of each Portfolio
of the Trust and the Trust under the 1933 Act and the 1940 Act, to the end that there will be
available for sale from time to time such number of shares as the Distributor may reasonably be
expected to sell. The Trust shall advise the Distributor promptly of (a) any action of the
Securities and Exchange Commission or any authorities of any state or territory, of which it may be
advised, affecting registration or qualification of the Trust, a Portfolio or the shares thereof,
or rights to offer such shares for sale and (b) the happening of any event which makes untrue any
statement or which requires the making of any change in the Registration Statement or Prospectus in
order to make the statements therein not misleading.
12. Securities Transactions. The Trust agrees that the Distributor may effect a transaction on
any national securities exchange of which it is a member for the account of the Trust and any
Portfolio of the Trust which is permitted by Section 11(a) of the 1934 Act.
13. Expenses.
(a) The Distributor shall from time to time employ or associate with it such persons as it
believes necessary to assist it in carrying out its obligations under this Agreement. The
compensation of such persons shall be paid by the Distributor.
(b) The Distributor shall pay all expenses incurred in connection with its qualification as a
dealer or broker under Federal or state law.
(c) The Distributor will pay all expenses of preparing, printing and distributing advertising
and sales literature as such expenses relate to the shares (apart from expenses of registering
shares under the 1933 Act and the 1940 Act and the preparation and printing of prospectuses and
reports for shareholders or others as required by said Acts and the direct expenses of the issue of
shares).
(d) The Trust shall pay or cause to be paid all expenses incurred in connection with (i) the
preparation, printing and distribution to shareholders or others of the Prospectus and reports and
other communications to existing shareholders or other appropriate recipients, (ii) future
registrations of shares under the 1933 Act and the 0000 Xxx, (xxx) amendments of the Registration
Statement subsequent to the initial public offering of shares, (iv) qualification of shares for
sale in jurisdictions designated by the Distributor, including under the securities, insurance or
so-called “Blue Sky” law of any State, (v) qualification of the Trust as a dealer or broker under
the laws of jurisdictions designated by the Distributor, (vi) qualification of the Trust as a
foreign corporation authorized to do business in any jurisdiction if the Distributor
determines that such qualification is necessary or desirable for the purpose of facilitating
sales of
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shares, (vii) maintaining facilities for the issue and transfer of shares, (viii)
supplying information, prices and other data to be furnished by the Trust under this Agreement,
(ix) any expenses assumed by the Trust with regard to Class II shares of a Portfolio pursuant to
the Class II Plan.
(e) The Trust shall pay any original issue taxes or transfer taxes applicable to the sale or
delivery of shares or certificates therefor.
14. Indemnification of Distributor. The Trust shall prepare and furnish to the Distributor
from time to time such number of copies of the most recent form of the Prospectus filed with the
Securities and Exchange Commission as the Distributor may reasonably request. The Trust authorizes
the Distributor to use the Prospectus, in the form furnished to the Distributor from time to time,
in connection with the sale of shares. The Trust shall indemnify, defend and hold harmless the
Distributor, its officers and trustees and any person who controls the Distributor within the
meaning of the 1933 Act, from and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which the Distributor, its officers and trustees or
any such controlling person may incur under the 1933 Act, the 1940 Act, the common law or
otherwise, arising out of or based upon any alleged untrue statement of a material fact contained
in the Registration Statement or the Prospectus or arising out of or based upon any alleged
omission to state a material fact required to be stated in either or necessary to make the
statements in either not misleading, except if such statement or omission was made or omitted at
the direction of the Distributor. This Agreement shall not be construed to protect the Distributor
against any liability to the Trust or its shareholders to which the Distributor would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its
duties or by reason of its reckless disregard of its obligations and duties under this Agreement.
This indemnity agreement is expressly conditioned upon the Trust being notified of any action
brought against the Distributor, its officers or directors or any such controlling person, which
notification shall be given by letter or by facsimile addressed to the Trust at its principal
office in New York, New York, and sent to the Trust by the person against whom such action is
brought within 10 days after the summons or other first legal process shall have been served. The
failure to notify the Trust of any such action shall not relieve the Trust from any liability which
it may have to the person against whom such action is brought by reason of any such alleged untrue
statement or omission otherwise than on account of the indemnity agreement contained in this
Section 14. The Trust shall be entitled to assume the defense of any suit brought to enforce any
such claim, demand or liability, but, in such case, the defense shall be conducted by counsel
chosen by the Trust and approved by the Distributor. If the Trust elects to assume the defense of
any such suit and retain counsel approved by the Distributor, the defendant or defendants in such
suit shall bear the fees and expenses of any additional counsel retained by any of them, but in the
case the Trust does not elect to assume the defense of any such suit, or in the case the
Distributor reasonably does not approve of counsel chosen by the Trust, the Trust will reimburse
the Distributor, its officers and directors or the controlling person or persons named as defendant
or defendants in such suit, for the reasonable fees and expenses of any counsel retained by the
Distributor or them in the reasonable discretion of the Distributor or the Distributor’s officers
and directors or the controlling person or persons. This indemnity agreement and the Trust’s representations and warranties in this Agreement
shall
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remain operative and in full force and effect regardless of any investigation made by or on
behalf of the Distributor, its officers and directors or any such controlling person. This
indemnity agreement shall inure exclusively to the benefit of the Distributor and its successors,
the Distributor’s officers and directors and their respective estates and any such controlling
persons and their successors and estates. The Trust shall promptly notify the Distributor of the
commencement of any litigation or proceedings against it in connection with the issue and sale of
any shares.
15. Indemnification of Trust. The Distributor agrees to indemnify, defend and hold harmless
the Trust, its officers and Trustees and any person who controls the Trust within the meaning of
the 1933 Act, from and against any and all claims, demands, liabilities and expenses (including the
cost of investigating or defending such claims, demands or liabilities and any counsel fees
incurred in connection therewith) which the Trust, its officers or Trustees or any such controlling
person, may incur under the 1933 Act, the 1940 Act, the common law or otherwise, but only to the
extent that such liability or expense incurred by the Trust, its officers or Trustees or such
controlling person resulting from such claims or demands shall arise out of or be based upon (a)
any alleged untrue statement of a material fact contained in information furnished by the
Distributor to the Trust for use in the Registration Statement or the Prospectus or shall arise out
of or be based upon any alleged omission to state a material fact in connection with such
information required to be stated in the Registration Statement or the Prospectus or necessary to
make such information not misleading, (b) any alleged act or omission on the Distributor’s part as
the Trust’s agent that has not been expressly authorized by the Trust in writing, and (c) any
claim, action, suit or proceeding which arises out of or is alleged to arise out of the
Distributor’s failure to exercise reasonable care and diligence with respect to its services
rendered in connection with investment, reinvestment, employee benefit and other plans for shares.
The foregoing rights of indemnification shall be in addition to any other rights to which the Trust
or a Trustee may be entitled as a matter of law. This indemnity agreement is expressly conditioned
upon the Distributor being notified of an action brought against the Trust, its officers or
Trustees or any such controlling person, which notification shall be given by letter or facsimile
addressed to the Distributor at its principal office (currently in New York, New York), and sent to
the Distributor by the person against whom such action is brought, within 10 days after the summons
or other first legal process shall have been served. The failure to notify the Distributor of any
such action shall not relieve the Distributor from any liability which it may have to the Trust,
its officers or Trustees or such controlling person by reason of any alleged misstatement,
omission, act or failure on the Distributor’s part otherwise than on account of the indemnity
agreement contained in this Section 15. The Distributor shall have a right to control the defense
of such action with counsel of its own choosing and approved by the Trust if such action is based
solely upon such alleged misstatement, omission, act or failure on the Distributor’s part, and in
any other event the Trust, its officers and Trustees or such controlling person shall each have the
right to participate in the defense or preparation of the defense of any such action at their own
expense. If the Distributor elects to assume the defense of any such suit and retain counsel
approved by the Trust, the defendant or defendants in such suit shall bear the fees and expenses of
any additional counsel retained by any of them, but in case the Distributor does not elect to
assume the defense of any such suit, or in the case the Trust does not approve of counsel chosen by
the Distributor, the Distributor will reimburse the Trust, its officers and
Trustees or the controlling person or persons named as defendant or defendants in such suit,
for
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the fees and expenses of any counsel retained by the Trust or them in the reasonable discretion
of the Trust or the Trust’s officers and trustees or the controlling person or persons. This
indemnity agreement and the Distributor’s representations and warranties in this Agreement shall
remain operative and in full force and effect regardless of any investigation made by or on behalf
of the Trust, its officers and Trustees or any such controlling person. This indemnity agreement
shall inure exclusively to the benefit of the Trust and its successors, the Trust’s officers and
Trustees and their respective estates and any such controlling persons and their successors and
estates. The Distributor shall promptly notify the Trust of the commencement of any litigation and
proceedings against it in connection with the issue and sale of any shares.
16. Assignment Terminates this Agreement; Amendments of this Agreement. This Agreement shall
automatically terminate, without the payment of any penalty, in the event of its assignment. This
Agreement may be amended only if such amendment be approved either by action of the Trustees of the
Trust or at a meeting of the shareholders of the Trust by the affirmative vote of a majority of the
outstanding shares of the Trust, and by a majority of the Trustees of the Trust who are not
interested persons of the Trust and who have no direct or indirect financial interest in the
operation of the Class II Plan or this Agreement by vote cast in person at a meeting called for the
purpose of voting on such approval.
17. Effective Period and Termination of this Agreement. This Agreement shall take effect upon
the date first above written and shall remain in force and effect continuously as to a Portfolio
and a class of shares thereof (unless terminated automatically as set forth in Section 16 hereof)
until terminated:
(a) Either by such Portfolio or such class or the Distributor by not more than sixty (60)
days’ nor less than thirty (30) days’ written notice delivered or mailed by registered mail,
postage prepaid, to the other party; or
(b) Automatically as to any Portfolio or class thereof at the close of business two years from
the date this Agreement became effective with respect to such Portfolio or class, or upon the
expiration of one year from the effective date of the last continuance of this Agreement with
respect to such Portfolio or class, whichever is later, if the continuance of this Agreement is not
specifically approved at least annually, beginning with the second year after the date this
Agreement became effective with respect to such Portfolio or class, by the Trustees of the Trust or
the shareholders of such Portfolio or such class by the affirmative vote of a majority of the
outstanding shares of such Portfolio or such class, and by a majority of the Trustees of the Trust
who are not interested persons of the Trust and who have no direct or indirect financial interest
in the operation of the Class II Plan or this Agreement by vote cast in person at a meeting called
for the purpose of voting on such approval.
Action by a Portfolio or a class thereof under (a) above may be taken either (i) by vote of
the Trustees of the Trust, or (ii) by the affirmative vote of a majority of the outstanding shares
of such Portfolio or such class. The requirement under (b) above that the continuance of this
Agreement be “specifically approved at least annually” shall be construed in a manner consistent
with the 1940 Act and the rules and regulations thereunder.
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Termination of this Agreement pursuant to this Section 17 shall be without the payment of any
penalty.
If this Agreement is terminated or not renewed with respect to one or more Portfolios or
classes thereof, it may continue in effect with respect to any Portfolio or any class thereof as to
which it has not been terminated (or has been renewed).
18. Certain Definitions. For the purposes of this Agreement, the “affirmative vote of a
majority of the outstanding shares” means the affirmative vote, at a duly called and held meeting
of shareholders, (a) of the holders of 67% or more of the shares of the Trust, Portfolio or class,
as the case may be, present (in person or by proxy) and entitled to vote at such meeting, if the
holders of more than 50% of the outstanding shares of the Trust, Portfolio or class, as the case
may be, entitled to vote at such meeting are present in person or by proxy, or (b) of the holders
of more than 50% of the outstanding shares of the Trust, Portfolio or class, as the case may be,
entitled to vote at such meeting, whichever is less.
For the purposes of this Agreement, the terms “interested persons” and “assignment” shall have
the meanings defined in the 1940 Act, subject, however, to such exemptions as may be granted by the
Securities and Exchange Commission under said Act. Certain other items used herein that are not
otherwise defined have the meaning given in the Trust’s Prospectus or constituent agreements or
documents of the Trust.
19. Notice. A copy of the Trust’s Declaration of Trust is on file with the Secretary of the
Commonwealth of Massachusetts and notice is hereby given that this instrument is executed on behalf
of the Trustees of the Trust as Trustees and not individually, and that the obligations of or
arising out of this instrument are not binding upon any of the Trustees or shareholders
individually but are binding only upon the assets and property of the Trust.
This agreement constitutes the entire understanding of the parties with respect to the subject
matter hereof and supersedes all prior and current understandings and agreements, whether written
or oral, with respect to such subject matter.
[Signature page follows.]
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If the foregoing correctly sets forth the agreement between the Trust and the Distributor,
please so indicate by signing and returning to the Trust the enclosed copy hereof.
| Very truly yours, PREMIER VIT |
||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: Xxxxx X. Xxxxxxxx | ||||
| Title: President | ||||
ACCEPTED:
ALLIANZ GLOBAL INVESTORS DISTRIBUTORS LLC
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: Xxxxxx X. Xxxxxx | ||||
| Title: Managing Director & Chief Operating Officer | ||||
[Distribution Agreement – Signature Page]
