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Ex-99.B6-d
FUND PARTICIPATION AGREEMENT
THIS FUND PARTICIPATION AGREEMENT, made on this the ____day of _________,
1997 among JNL Series Trust (the "Trust"), a business trust organized under the
laws of the Commonwealth of Massachusetts, and Xxxxxxx National Life Insurance
Company (the "Company"), a life insurance company organized under the laws of
the State of Michigan, on behalf of itself and on behalf of Xxxxxxx National
Separate Account - III ("Separate Account"), a separate account of the Company
existing pursuant to the Michigan Insurance Code.
WITNESSETH:
WHEREAS, the Trust is an open-end management investment company which is
divided into various investment series ("Series"), each Series being subject to
separate investment objectives and restrictions. (See Exhibit A for available
Series); and
WHEREAS, the Trust's shares may be offered to variable annuity and
variable life insurance separate accounts of insurance companies, which may or
may not be affiliated persons of each other ("Participating Insurers"),
pursuant to fund participation agreements substantially identical to this
Agreement; and
WHEREAS, the Company, by resolution, has established the Separate Account
on its books of account for the purpose of funding certain variable contracts
("Contracts"); and
WHEREAS, the Separate Account, registered with the Securities and
Exchange Commission as a unit investment trust under the Investment Company Act
of 1940 ("1940 Act"), is divided into various "Portfolios" under which the
income, gains and losses, whether or not realized, from assets allocated to
each such Portfolio are, in accordance with the Contracts, credited to or
charged against such Portfolio without regard to any other income, gains or
losses of other Portfolios or separate accounts or of the Company; and
WHEREAS, the Separate Account desires to purchase shares of the Trust; and
WHEREAS, the Trust agrees to make its shares available to serve as
underlying investment media for the various Portfolios of the Separate Account
with each Series of the Trust serving as the underlying investment medium for
the corresponding Portfolio of the Separate Account; and
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WHEREAS, the Trust has undertaken that its Board of Trustees ("Board")
will monitor the Trust for the existence of any material irreconcilable
conflicts that may arise between the contract owners of separate accounts of
insurance companies that invest in the Trust for the purpose of identifying and
remedying any such conflict;
NOW, THEREFORE, in consideration of the foregoing and of mutual covenants
and conditions set forth herein and for other good and valuable consideration,
the Trust and the Company (on behalf of itself and the Separate Account) hereby
agree as follows:
ARTICLE I
SALE OF TRUST SHARES
1.1 The Contracts funded by the Separate Account will provide for the
allocation of net amounts among the various Portfolios of the Separate Account
for investment in the shares of the particular Series of the Trust underlying
each Portfolio. The selection of a particular Portfolio is to be made (and
such selection may be changed) in accordance with the terms of the Contract.
1.2 Trust shares to be made available to the respective Portfolios of the
Separate Account shall be sold by each of the respective Series of the Trust
and purchased by the Company for that Portfolio at the net asset value next
computed after receipt of each order, as established in accordance with the
provisions of the then current prospectus of the Trust. Shares of a particular
Series of the Trust shall be ordered in such quantities and at such times as
determined by the Company to be necessary to meet the requirements of those
Contracts having amounts allocated to the Portfolio for which the Trust Series
shares serve as the underlying investment medium. Orders and payments for
shares purchased will be sent promptly to the Trust and will be made payable in
the manner established from time to time by the Trust for the receipt of such
payments. Notwithstanding the foregoing, the Board of the Trust may refuse to
sell shares of any Series to any person or suspend or terminate the offering of
shares of any Series if such action is required by law or by regulatory
authority having jurisdiction over the Trust or is, in the sole discretion of
the Board acting in good faith and in light of its fiduciary duties under
federal and any applicable state laws, necessary in the best interests of the
shareholders of such Series.
1.3 The Trust will redeem the shares of the various Series when requested
by the Company on behalf of the corresponding Portfolio of the Separate Account
at the net asset value next computed after receipt of each request for
redemption, as established in accordance with the provisions of the then
current prospectus of the Trust. The Trust will make payment in the manner
established from time to time by the Trust for the receipt of such redemption
requests, but in no event shall payment be delayed for a greater period than is
permitted by the 0000 Xxx.
1.35 For purposes of paragraphs 1.2 and 1.3 hereinabove, the Company
shall be the agent of the Trust for the receipt of (1) orders to purchase, and
(2) requests to redeem, shares of the
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Series of the Trust on behalf of the Separate Account, and receipt of such
orders and requests by such agent shall constitute receipt thereof by the
Trust, provided that the Trust receives actual notice of such order or request
by 12:00 noon (at the Trust's offices) on the next following Business Day.
"Business Day" shall mean any day on which the New York Stock Exchange is open
for trading and on which the Trust calculates its net asset value pursuant to
the rules of the Securities and Exchange Commission.
1.4 Transfer of the Trust's shares will be by book entry only. No stock
certificates will be issued to the Separate Account. Shares ordered from a
particular Series of the Trust will be recorded in an appropriate title for the
corresponding Portfolio of the Separate Account.
1.5 The Trust shall furnish same day notice to the Company of any
dividend or distribution payable on its shares. All of such dividends and
distributions as are payable on each of the Series shares in the title for the
corresponding Portfolio of the Separate Account shall be automatically
reinvested in additional shares of that Series of the Trust. The Trust shall
notify the Company of the number of shares so issued.
1.6 The Trust shall make the net asset value per share of each Series
available to the Company on a daily basis as soon as reasonably practical after
the net asset value per share is calculated and shall use its best efforts to
make such net asset value per share available by 6:00 p.m. Eastern Time.
ARTICLE II
SALES MATERIAL AND INFORMATION
2.1 The Company shall furnish to the Trust each piece of sales literature
or other promotional material in which the Trust or its investment adviser is
named at least ten business days prior to its use. No such material shall be
used if the Trust objects to such use within five business days after receipt
of such material.
2.2 The Company shall not give any information or make any representations
or statements on behalf of the Trust or concerning the Trust in connection with
the sale of the Contracts other than the information or representations
contained in the registration statement or prospectus for the Trust shares, as
such documents may be amended or supplemented from time to time, or in reports
or proxy statements for the Trust, or in sales literature or other promotional
material approved by the Trust, except with the permission of the Trust.
2.3 The Trust shall furnish to the Company each piece of sales literature
or other promotional material in which the Company or the Separate Account is
named at least ten business days prior to its use. No such material shall be
used if the Company objects to such use within five business days after receipt
of such material.
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2.4 The Trust shall not give any information or make any representations
on behalf of the Company or concerning the Company, the Separate Account, or
the Contracts other than the information or representations contained in the
registration statement or prospectus for the Contracts, as such registration
statement and prospectus may be amended or supplemented from time to time, or
in published reports for the Separate Account which are in the public domain
or approved by the Company for distribution to Contract owners, or in sales
literature or other promotional material approved by the Company, except with
the permission of the Company.
2.5 The Trust will provide to the Company at least one complete copy of
all registration statements, prospectuses, statements of additional
information, reports, proxy statements, sales literature and other
promotional materials, applications for exemptions, requests for no-action
letters, and all amendments to any of the above that relate to the Trust or
its shares, contemporaneously with the filing of such document with the
Securities and Exchange Commission or other regulatory authorities.
2.6 The Company will provide to the Trust at least one complete copy of
all registration statements, prospectuses, statements of additional
information, reports, solicitations for voting instructions, sales literature
and other promotional materials, applications for exemptions, requests for
no-action letters, and all amendments to any of the above, that relate to the
Contracts or the Separate Account, contemporaneously with the filing of such
documents with the Securities and Exchange Commission or other regulatory
authorities.
2.7 For purposes of this Article II, the phrase "sales literature or
other promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper, magazine,
or other periodical, radio, television, telephone or tape recording,
videotape display, signs or billboards, motion pictures, or other public
media), sales literature (i.e., any written communication distributed or made
generally available to customers or the public, including brochures,
circulars, research reports, market letters, form letters, seminar texts,
reprints or excerpts of any other advertisement, sales literature, or
published article), educational or training materials or other communications
distributed or made generally available to some or all agents or employees,
and registration statements, prospectuses, statements of additional
information, shareholder reports, and proxy materials.
ARTICLE III
EXPENSES
3.1 The Trust shall pay no fee or other compensation to the Company
under this Agreement. All expenses incident to performance by the Trust
under this Agreement shall be paid by the Trust. The Trust shall bear the
expenses for: the cost of registration of the Trust's shares; preparation and
filing of the Trust's prospectus and registration statement; preparation and
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filing of proxy materials and reports; setting the prospectus in type;
setting in type the proxy materials and reports to shareholders; the
preparation of all statements and notices required of the Trust by any
federal or state law; and all taxes on the issuance or transfer of the
Trust's shares.
3.2 The Trust's prospectus shall state that the statement of additional
information for the Trust is available from the Trust, and the Trust, at its
expense, shall provide such statement free of charge to the Company and to
any Contract owner or prospective Contract owner who requests such statement.
3.3 The Trust, at its expense, shall provide the Company with copies of
its proxy material, reports to stockholders and other communications to
stockholders in such quantity as the Company shall reasonably require for
distributing to Contract owners.
ARTICLE IV
VOTING
4.1 The Company shall provide pass-through voting privileges to all
Contract owners so long as the Securities and Exchange Commission continues
to interpret the 1940 Act to require pass-through voting privileges for
variable contract owners. The Company shall be responsible for assuring that
the Separate Account calculates voting privileges in a manner consistent with
standards provided by the Trust, which standards will also be provided to
other Participating Insurers. To the extent required by law, the Company
will vote shares for which it has not received voting instructions as well as
shares attributable to the Company in the same proportion as it votes shares
for which it has received instructions.
4.2 The Trust will comply with all provisions of the 1940 Act requiring
voting by shareholders and, in particular, the Trust will either provide for
annual meetings or comply with Section 16(c) of the 1940 Act (although the
Trust is not one of the trusts described in Section 16(c) of that Act) as
well as with Sections 16(a) and, if and when applicable, 16(b). Further, the
Trust will act in accordance with the Securities and Exchange Commission's
interpretation of the requirements of Section 16(a) with respect to periodic
elections of directors and with whatever rules the Commission may promulgate
with respect thereto.
ARTICLE V
POTENTIAL CONFLICTS
5.1 The Board of the Trust will monitor the Trust for the existence of
any material irreconcilable conflict between the interests of the contract
owners of all separate accounts investing in the Trust. The Company will
report to the Board any potential or existing conflicts
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of which it is or becomes aware between any of its Contract owners, or between
any of its Contract owners and contract owners of other Participating Insurers.
The Company will be responsible for assisting the Board in carrying out its
responsibilities to identify and resolve material conflicts by providing the
Board with all information available to it that is reasonably necessary for the
Board to consider any issues raised, including information as to a decision by
the Company to disregard voting instructions of its Contract owners.
5.2 The Board's determination of the existence of any irreconcilable
material conflict and its implications shall be made known promptly by it to
the Company and other Participating Insurers. An irreconcilable material
conflict may arise for a variety of reasons, including: (a) an action by any
state insurance regulatory authority; (b) a change in applicable federal or
state insurance tax, or securities laws or regulations, or a public ruling,
private letter ruling, or any similar action by insurance, tax, or securities
regulatory authorities; (c) an administrative or judicial decision in any
relevant proceeding; (d) the manner in which the investments of any Series
are being managed; (e) a difference in voting instructions given by variable
annuity contract owners and variable life insurance contract owners or by
contract owners of different Participating Insurers; or (f) a decision by a
Participating Insurer to disregard the voting instructions of its variable
contract owners.
5.3 If it is determined by a majority of the Board or a majority of its
disinterested Trustees that a material irreconcilable conflict exists that
affects the interests of the Contract owners, the Company shall, to the
extent reasonably practicable (as determined by a majority of the Trust's
disinterested Trustees), take whatever steps are necessary to remedy or
eliminate the irreconcilable material conflict, which steps could include:
(a) withdrawing the assets allocable to the Separate Account from the Trust
or any Series and reinvesting such assets in a different investment medium,
including another Series of the Trust, or participating in the submission of
the question of whether such segregation should be implemented to a vote of
all affected contract owners and, as appropriate, segregating the assets of
any particular group (e.g. annuity contract owners or life insurance contract
owners) that votes in favor of such segregation, or offering to the affected
contract owners the option of making such a change; and (b) establishing a
new registered management investment company or managed separate account.
The Company shall take such steps at its expense if the conflict affects
solely the interests of the owners of the Company's Contracts, but shall bear
only its equitable portion of any such expense if the conflict also affects
the interests of the contract owners of one or more Participating Insurers
other than the Company, provided: that this sentence shall not be construed
to require the Trust to bear any portion of such expense. If a material
irreconcilable conflict arises because of the Company's decision to disregard
Contract owner voting instructions and that decision represents a minority
position or would preclude a majority vote, the Company may be required, at
Trust's election, to withdraw the investment of the Separate Account in the
Trust, and no charge or penalty will be imposed as a result of such a
withdrawal. The Company agrees to take such remedial action as may be
required under this paragraph 5.3 with a view only to the interests of its
Contract owners. For purposes of this paragraph 5.3, a majority of the
disinterested members of the Trust's Board
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shall determine whether or not any proposed action adequately remedies any
irreconcilable conflict, but in no event will Trust be required to establish a
new funding medium for any variable contract. The Company shall not be
required by this paragraph 5.3 to establish a new funding medium if any offer
to do so has been declined by vote of a majority of contract owners materially
and adversely affected by the irreconcilable material conflict.
Notwithstanding the foregoing, if the Company is required under this
paragraph 5.3 to withdraw the investment of the Separate Account in the
Trust, such withdrawal may take place within six (6) months after the Trust
gives written notice that this paragraph 5.3 is being implemented, provided:
That the Trust may require that such withdrawal must take place within a
shorter period of time after such notice if a majority of the disinterested
members of the Trust's Board determines that such shorter period is necessary
to avoid irreparable harm to its shareholders; and further provided: That
until the end of such six month (or shorter) period the Trust shall continue
to accept and implement orders by the Company for the purchase and redemption
of Trust Shares. The Company will not be required to withdraw investments in
the Separate Account of the Trust until all regulatory approval is obtained.
5.4 In discharging its responsibilities under this Article V, the
Company will cooperate and coordinate, to the extent necessary, with the
Board and with other Participating Insurers.
5.5 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or
a subsequent Rule 6e-3 is adopted, to provide exemptive relief from any
provision of the Act or the rules promulgated thereunder with respect to
mixed or shared funding on terms and conditions materially different from
those contained in the Trust's mixed and shared funding order then the Trust
or the Participating Insurers, as appropriate, shall take such steps as may
be necessary to comply with Rules 6e-2 and 6e-3(T), and related Rules as
amended, to the extent such rules are applicable.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1 The Company represents and warrants that the Contracts are or will be
registered under the Securities Act of 1933 ("1933 Act"), that the Contracts
will be issued and sold in compliance in all material respects with all
applicable federal and state laws, and that the sale of the Contracts shall
comply in all material respects with state insurance suitability requirements.
The Company further represents and warrants that it is an insurance company
duly organized and in good standing under applicable laws and that it has
legally and validly established the Separate Account prior to any issuance or
sale thereof as a segregated asset account under the Michigan Insurance Code
and has registered or, prior to any issuance or sale of the Contracts, will
register
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the Separate Account as a unit investment trust in accordance with the
provisions of the 1940 Act to serve as a segregated investment account for the
Contracts.
6.2 The Trust represents and warrants that Trust shares sold pursuant to
this Agreement shall be registered under the 1933 Act, shall be duly authorized
for issuance and sold in compliance with the laws of the State of Massachusetts
and all applicable federal and state securities laws and that the Trust is and
shall remain registered under the 1940 Act. The Trust shall amend the
Registration Statement for its shares under the 1933 Act and the 1940 Act from
time to time as required in order to effect the continuous offering of its
shares. The Trust represents that it is lawfully organized and validly
existing under the laws of the State of Massachusetts and that it does and will
comply in all material respects with the 0000 Xxx.
6.3 The Trust represents and warrants that it intends to qualify each of
its Series as a Regulated Investment Company under Subchapter M of the Internal
Revenue Code, as amended, (the "Code") and that it will make every effort to
maintain such qualification (under Subchapter M or any successor or similar
provision) and that it will notify the Company immediately upon having a
reasonable basis for believing that any such Series may not so qualify in the
future.
6.4 The Trust represents and warrants that it will at all times invest
money from the Contracts in such a manner as to ensure that the Contracts will
be treated as variable contracts under the Code and the regulations issued
thereunder. Without limiting the scope of the foregoing, the Trust will at all
times comply with Section 817(h) of the Code and the Regulations thereunder,
relating to the diversification requirements for annuity, endowment, or life
insurance contracts and any amendments or other modifications to such Section
or Regulation.
6.5 The Company represents that the Contracts are to be treated as
annuity, endowment, or life insurance contracts, under applicable provisions of
the Code, and that it will make every effort to maintain such treatment and
that it will notify the Trust immediately upon having a reasonable basis for
believing that the Contracts have ceased to be so treated or that they might
not be so treated in the future.
6.6 The Trust makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws or regulations of the various states
except that the Trust represents that its investment policies, fees and
expenses are and shall at all times remain in compliance with the laws of the
State of Massachusetts and the Trust represents that its operations are and
shall at all times remain in material compliance with the 0000 Xxx.
6.7 The Trust represents and warrants that all of its Trustees, officers,
employees, investment advisers, and other persons dealing with the money or
securities of the Trust are and shall continue to be at all times covered by a
blanket fidelity bond or similar coverage for the benefit of the Trust in an
amount not less that the minimal coverage as required currently by
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Section 17(g) of the 1940 Act or related provisions as may be promulgated from
time to time. The aforesaid bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
6.8 The Company represents and warrants that all of its directors,
officers, employees, and other persons who are directly dealing with the money
or securities of the Trust are and shall continue to be at all times covered by
a blanket fidelity bond or similar coverage in amounts which shall comply with
Rule 17g-1 under the 0000 Xxx.
6.9 The Trust represents and warrants that shares of the Trust will be
sold only to Participating Insurers and their separate accounts or to qualified
plans as permitted under section 817(h) of the Code. No shares of any Series
will be sold to the general public. The Trust further represents and warrants
that it will not sell Trust shares to any insurance company or separate account
except pursuant to an agreement containing provisions substantially the same as
those contained in Articles IV and V of this Agreement governing voting rights
and conflicts of interest, respectively.
6.10 The Company represents and warrants that it will make reasonable
efforts to market those Contracts it determines from time to time to offer for
sale and, although it is not required to offer for sale new Contracts in all
cases, will accept payments and otherwise service existing Contracts funded in
the Separate Account. No representation is made as to the number or amount of
such Contracts to be sold.
ARTICLE VII
INDEMNIFICATION
7.1 The Company agrees to indemnify and hold harmless the Trust and each
of the Trust's Trustees and officers and each person, if any, who controls the
Trust within the meaning of Section 15 of the 1933 Act against any and all
losses, claims, damages, liabilities or litigation (including legal and other
expenses), arising out of the acquisition of any shares of the Trust by any
person, to which the Trust or such Trustees, officers or controlling person may
become subject under the 1933 Act, under any other statute, at common law or
otherwise, which (i) may be based upon any wrongful act by the Company, any of
its employees or representatives, any affiliate of or any person acting on
behalf of the Company or a principal underwriter of its insurance products, or
(ii) may be based upon any untrue statement or alleged untrue statement of a
material fact contained in a registration statement or prospectus covering
shares of the Trust or any amendment thereof or 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 to
the Trust by the Company, or (iii) may be based on any untrue statement or
alleged untrue statement of a material fact contained in a registration
statement or prospectus covering the Contracts, or any amendments
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or supplement thereto, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statement
or statements therein not misleading, unless such statement or omission was
made in reliance upon information furnished to the Company or such affiliate by
or on behalf of the Trust; provided, however, that in no case (i) is the
Company's indemnity in favor of a Trustee or officer or any other person deemed
to protect such Trustee or officer or other 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 or her
duties or by reason of his or her reckless disregard of obligations and duties
under this Agreement or (ii) is the Company to be liable under its indemnity
agreement contained in this Paragraph 7.1 with respect to any claim made
against the Trust or any person indemnified unless the Trust or such person, as
the case may be, shall have notified the Company in writing pursuant to
Paragraph 10 of this Agreement within a reasonable time after the summons or
other first legal process giving information of the nature of the claims shall
have been served upon the Trust or upon such person (or after the Trust or such
person shall have received notice of such service on any designated agent), but
failure to notify the Company of any such claim shall not relieve the Company
from any liability which it has to the Trust or any person against whom such
action is brought otherwise than on account of its indemnity agreement
contained in this Paragraph 7.1. The Company shall be entitled to participate,
at its own expense, in the defense, or, if it so elects, to assume the defense
of any suit which could result in liability to it under this Paragraph 7.1,
but, if it elects to assume the defense, such defense shall be conducted by
counsel chosen by it and satisfactory to the Trust and to such of its officers,
Trustees and controlling person or persons as may be defendants in the suit.
In the event that the Company elects to assume the defense of any such suit and
retain such counsel, the Trust, such officers, Trustees and controlling person
or persons shall bear the fees and expenses of any additional counsel retained
by them, but, in case the Company does not elect to assume the defense of any
such suit, the Company will reimburse the Trust, such officers, Trustees and
controlling person or persons for the reasonable fees and expenses of any
counsel retained by them. The Company agrees promptly to notify the Trust
pursuant to Paragraph 10 of this Agreement of the commencement of any
litigation or proceedings against it in connection with the issue and sale of
any shares of the Trust.
7.2 The Trust agrees to indemnify and hold harmless the Company and its
affiliated principal underwriter of the Contracts and each of the Company's
Directors and officers and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all losses, claims,
damages, liabilities or litigation (including legal and other expenses) to
which it or such directors, officers or controlling person may become subject
under the 1933 Act, under any other statute, at common law or otherwise,
arising out of the acquisition of any shares of the Trust by any person which
(i) may be based upon any wrongful act by the Trust or any of its employees or
representatives, or (ii) may be based upon any untrue statement or alleged
untrue statement of a material fact contained in a registration statement or
prospectus covering shares of the Trust or any amendment thereof or 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 statement or omission was made in reliance
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upon information furnished to the Trust by the Company, or (iii) may be based
on any untrue statement or alleged untrue statement of a material fact
contained in a registration statement or prospectus covering the Contracts, or
any amendment or supplement thereto, or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statement or statements therein not misleading, if such statement or
omission was made in reliance upon information furnished to the Company by or
on behalf of the Trust; provided, however, that in no case (i) is the Trust's
indemnity in favor of a Director or officer or any other person deemed to
protect such Director or officer or other 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 or her duties or by
reason of his or her reckless disregard of obligations and duties under this
Agreement or (ii) is the Trust to be liable under its indemnity agreement
contained in this Paragraph 7.2 with respect to any claims made against the
Company or any such Director, officer or controlling person unless it,
Director, officer or controlling person, as the case may be, shall have
notified the Trust in writing pursuant to Paragraph 10 of this Agreement within
a reasonable time after the summons or the first legal process giving
information of the nature of the claim shall have been served upon it or upon
such Director, officer or controlling person (or after the Company or such
Director, officer or controlling person shall have received notice of such
service on any designated agent), but failure to notify the Trust of any claim
shall not relieve it from any liability which it may have to the person against
whom such action is brought otherwise than on account of its indemnity
agreement contained in this Paragraph 7.2. The Trust will be entitled to
participate, at its own expense, in the defense, or, if it so elects, to assume
the defense of any suit which could result in liability to it under this
Paragraph 7.2, but, if the Trust elects to assume the defense, such defense
shall be conducted by counsel chosen by it and satisfactory to the Company and
to such of its Directors, officers and controlling person or persons as may be
defendants in the suit. In the event that the Trust elects to assume the
defense of any such suit and retain such counsel, the Company, such Directors,
officers and controlling person or persons shall bear the fees and expenses of
any additional counsel retained by them, but, in case the Trust does not elect
to assume the defense of any such suit, it will reimburse the Company, such
Directors, officers and controlling person or persons for the reasonable fees
and expenses of any counsel retained by them. The Trust agrees promptly to
notify the Company pursuant to Paragraph 10 of this Agreement of the
commencement of any litigation or proceedings against it or any of its officers
or Trustees in connection with the issue and sale of any of its shares.
ARTICLE VIII
CONFIDENTIALITY
8. Subject to the requirements of legal process and regulatory authority,
each party shall treat as confidential all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted by
this Agreement, shall not disclose, disseminate or
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utilize confidential information without the express written consent of the
affected party until such time as it may come into the public domain.
ARTICLE IX
TERMINATION
9.1 This Agreement shall terminate:
(a) at the option of the Company or the Trust upon 90
days' advance written notice to all other parties to this
Agreement, provided, however, such notice shall not be given
earlier than twenty four months following the date of this
Agreement; or
(b) at the option of the Company if any of the
Trust's shares are not reasonably available to meet the
requirements of the Contracts funded in the Separate Account
as determined by the Company; or
(c) at the option of any party to this Agreement upon
institution of formal proceedings against any other party to
this Agreement by the Securities and Exchange Commission or any
other regulatory body; or
(d) upon the vote of Contract owners having an interest
in a particular Portfolio of the Separate Account. The Company
will give 30 days' prior written notice to the Trust of the
date of any proposed action to replace the Trust's shares; or
(e) at the option of the Company if the Trust's shares
are not registered, issued or sold in accordance with
applicable state and/or federal law or such law precludes the
use of such shares as the underlying investment medium of the
Contracts funded in the Separate Account; or
(f) at the option of the Company if any Series of the
Trust ceases to qualify as a Regulated Investment Company under
Subchapter M of the Code or under any successor similar
provision, or if the Company reasonably believes that any
Series of the Trust may fail to so qualify; or
(g) at the option of the Company if any Series of the
Trust fails to meet the diversification requirements specified
in paragraph 6.4 hereof.
9.2 Prompt notice of election to terminate under subparagraphs (b), (c),
(e), (f) and (g) of paragraph 9.1 shall be furnished by the electing party.
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9.3 Notwithstanding any termination of this Agreement, the Trust shall, at
the option of the Company, continue to make available additional shares of the
Trust pursuant to the terms and conditions of this Agreement for all Contracts
in effect on the effective date of termination of this Agreement (hereinafter
referred to as "Existing Contracts"). Specifically, without limitation, the
owners of the Existing Contracts shall be permitted to reallocate investments
in the Trust, redeem investments in the Trust or invest in the Trust upon the
making of additional purchase payments under the Existing Contracts. The
parties agree that this paragraph 9.3 shall not apply to any terminations under
Article V and the effect of such Article V terminations shall be governed by
Article V of this Agreement.
9.4 Notwithstanding Article V and the foregoing provisions of this Article
IX, the provisions of Article VII (Indemnification) and Article VIII
(Confidentiality) shall survive any termination of this Agreement.
ARTICLE X
NOTICES
10. Any notice shall be sufficiently given when sent by registered or
certified mail to each other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other party.
If to the Trust:
JNL Series Trust
ATTN: Xxxxxx X. Xxxxxx
Vice President
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
If to the Company or the Separate Account:
Xxxxxxx National Life Insurance Company
ATTN: Xxxxxx X. Xxxxxxx
Xx. Vice President
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
ARTICLE XI
APPLICABLE LAW
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11. This Agreement shall be construed in accordance with the laws of the
State of Michigan.
ARTICLE XII
MISCELLANEOUS
12.1 The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof
or otherwise affect their construction or effect.
12.2 If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
12.3 The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, which the parties hereto are entitled to under state and
federal laws.
12.4 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.5 The Trust and the Company agree that the obligations of the Trust
under this Agreement shall not be binding upon any of the Trustees,
shareholders, nominees, officers, employees or agents, whether past, present or
future, of the Trust individually, but are binding only upon the assets and
property of the Trust or of the appropriate Series thereof, as provided in the
Agreement and Declaration of Trust. The execution and delivery of this
Agreement has been authorized by the Trustees of the Trust, and signed by an
authorized officer of the Trust, acting as such, and neither such authorization
by such Trustees nor such execution and delivery by such officer shall be
deemed to have been made by any of them or any shareholder of the Trust
individually or to impose any liability on any of them or any shareholder of
the Trust personally, but shall bind only the assets and property of the Trust
or of the appropriate Series thereof as provided in the Agreement and
Declaration of Trust.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Attest: JNL Series Trust
_________________________ By: ___________________________
Xxxxxx X. Xxxxxx
Vice President
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Attest: Xxxxxxx National Life Insurance Company
_________________________ By: ___________________________
Xxxxxx X. Xxxxxxx
Senior Vice President
Xxxxxxx National Separate Account - III
Attest: By: Xxxxxxx National Life Insurance Company
_________________________ By: ____________________________
Xxxxxx X. Xxxxxxx
Senior Vice President
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EXHIBIT A
JNL SERIES TRUST
- JNL Aggressive Growth Series
- JNL Global Equities Series
- JNL/Alliance Growth Series
- JNL/JPM International & Emerging Markets Series
- JNL/PIMCO Total Return Bond Series
- JNL/Xxxxxx Growth Series
- JNL/Xxxxxx Value Equity Series
- Xxxxxxx Sachs/JNL Growth & Income Series
- Lazard/JNL Small Cap Value Series
- Lazard/JNL Mid Cap Value Series
- PPM America/JNL Money Market Series
- Salomon Brothers/JNL Balanced Series
- Salomon Brothers/JNL Global Bond Series
- Salomon Brothers/JNL High Yield Bond Series
- X. Xxxx Price/JNL International Equity Investment Series
- X. Xxxx Price/JNL Mid-Cap Growth Series
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EXHIBIT LIST
1. Investment Advisory and Sub-Advisory Agreement.
2. Investment Advisor and Sub-Advisor Commitment Letter.
3. Amended Fund Participation Agreement
4. JNL Series Trust and Statement of Additional Information.
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