EX-99.23(h)(41)
PARTICIPATION AGREEMENT
THIS AGREEMENT, dated as of January 16, 2007, among Xxxxxxx National Asset
Management, LLC, JNL Series Trust, a business trust organized under the laws of
the Commonwealth of Massachusetts, on behalf of itself or its separate series
listed on Schedule A, severally and not jointly (each, an "Investing Fund"), and
iShares Trust, a business trust organized under the laws of the State of
Delaware, and iShares, Inc., a corporation organized under the laws of the State
of Maryland, each on behalf of its respective iShares series, severally and not
jointly (each an "iShares Fund" and collectively the "iShares Funds").
WHEREAS, Investing Fund and the iShares Funds each are registered with the
U.S. Securities and Exchange Commission ("SEC") as open-end management
investment companies under the Investment Company Act of 1940 (the "1940 Act");
WHEREAS, section 12(d)(1)(A) and (B) of the 1940 Act limits the ability of
an investment company to invest in shares of another investment company, and
therefore limits the ability of an Investing Fund to invest in shares of an
iShares Fund;
WHEREAS, iShares Trust and iShares, Inc., on behalf of each iShares Fund,
have obtained an order from the SEC dated April 15, 2003 (the "iShares Order"),
that permits registered investment companies to invest in the iShares Funds in
excess of the limits set forth in section 12(d)(1)(A) and (B) in accordance with
the conditions of the iShares Order and the representations in the application
filed to obtain such Order (the "iShares Application"); and
WHEREAS, the Investing Fund may, from time to time, invest in shares of one
or more iShares Funds in excess of the limitations of section 12(d)(1)(A) and
(B) in reliance on the iShares Order;
NOW THEREFORE, in consideration of the potential benefits to the Investing
Fund and the iShares Funds arising out of the Investing Fund's investment in
iShares Funds, the parties agree as follows.
1. REPRESENTATIONS AND OBLIGATIONS OF THE ISHARES FUNDS.
(a) The iShares Funds have provided to the Investing Fund a copy of the
iShares Order and the related SEC Notice of Application for such Order
(attached hereto as Schedule B). The iShares Funds will promptly
provide the Investing Fund with (i) a copy of any amendments to the
iShares Order, and (ii) a copy of the iShares Application upon
request.
(b) In connection with any investment by an Investing Fund in an iShares
Fund, the iShares Fund agrees (i) to comply with the terms and
conditions of the iShares Order and this Agreement, and (ii) to
promptly notify the Investing Fund if such iShares Fund fails to
comply with the terms and conditions of the iShares Order or this
Agreement.
(c) iShares(R) is a registered trademark of Barclays Global Investors,
N.A. ("BGI") and BGI has licensed the trademark to the iShares Funds.
2. REPRESENTATIONS AND OBLIGATIONS OF THE INVESTING FUNDS.
(a) Pursuant to Condition 9 of the iShares Order, each Investing Fund
represents that the board of directors/trustees of the Investing Fund
and the Investing Fund's advisor understand the terms and conditions
of the iShares Order and that each agrees to fulfill its
responsibilities under the iShares Order.
(b) Pursuant to Condition 9 of the iShares Order, each Investing Fund will
promptly notify the iShares Funds in writing at the time of any
investment by such Fund in an iShares Fund in excess of the 3% limit
in Section 12(d)(1)(A)(i). Upon such investment, each Investing Fund
shall also provide to the iShares Funds in writing a list of the names
of each Investing Fund Affiliate and Underwriting Affiliate (as such
terms are defined in the Order) and shall promptly notify the iShares
Funds of any changes to such list.
(c) Each Investing Fund will promptly notify the iShares Funds in writing
of any purchase or acquisition of shares of an iShares Fund that
causes such Investing Fund to hold (i) 5% or more of such iShares
Fund's total outstanding voting securities, and (ii) 10% or more of
such iShares Fund's total outstanding voting securities.
(d) To the extent an Investing Fund holds 5% or more of the total
outstanding voting securities of an iShares Fund, the Investing Fund
agrees to vote its shares in the same proportion as the vote of all
other holders of shares of such iShares Fund.
(e) If an Investing Fund exceeds the 5% or 10% limitations in Sections
12(d)(1)(A)(ii) or (iii), the Investing Fund, as required by the
iShares Application, will disclose in its prospectus in "Plain
English":
(1) That it may invest in exchange-traded funds; and
(2) The unique characteristics of the Investing Fund investing in
exchange-traded funds, including but not limited to, the basic
expense structure and additional expenses, if any, of investing
in exchange-traded funds.
(f) Each Investing Fund: (i) acknowledges that it has received a copy of
the iShares Order and the related SEC Notice of Application for such
Order; (ii) agrees to adhere to the terms and conditions of the
iShares Order and this Agreement and to participate in the proposed
transactions in a manner that addresses the concerns underlying the
iShares Order; (iii) represents that investments in the iShares Funds
will be accomplished in compliance with its investment restrictions
and will be consistent with the investment policies set forth in its
registration statement; (iv) acknowledges that it may rely on the
iShares Order only to invest in iShares Funds and not in any other
investment company; and (v) agrees to promptly notify the iShares
Funds if it fails to comply with the iShares Order or this Agreement.
3. INDEMNIFICATION.
Xxxxxxx National Asset Management, LLC, agrees to hold harmless and
indemnify the iShares Funds, including any principals, directors or
trustees, officers, employees and agents, against and from any and all
losses, expenses or liabilities incurred by or claims or actions ("Claims")
asserted against the iShares Funds, including any principals, directors or
trustees, officers, employees and agents, to the extent such Claims result
from (i) a violation or alleged violation by the Investing Fund of any
provision of this Agreement or (ii) a violation or alleged violation by the
Investing Fund of the terms and conditions of the iShares Order, such
indemnification to include any reasonable counsel fees and expenses
incurred in connection with investigating and/or defending such Claims.
The iShares Funds agree to hold harmless and indemnify an Investing Fund,
including any directors or trustees, officers, employees and agents,
against and from any Claims asserted against the Investing Fund, including
any directors or trustees, officers, employees and agents, to the extent
such Claims result from (i) a violation or alleged violation by the iShares
Fund of any provision of this Agreement or (ii) a violation or alleged
violation by the iShares Fund of the terms and conditions of the iShares
Order, such indemnification to include any reasonable counsel fees and
expenses incurred in connection with investigating and/or defending such
Claims; provided however that the iShares Fund shall not be liable for
indemnifying any Investing Fund for any Claims resulting from violations
that occur as a result of incomplete or inaccurate information provided by
the Investing Fund to the iShares Fund pursuant to terms and conditions of
the Order or this Agreement.
4. MATERIALS.
To the extent an Investing Fund refers to one or more iShares Funds in any
prospectus, statement of additional information or otherwise, each
Investing Fund agrees to:
(a) Refer to the iShares Fund as, for example, the "iShares (R) [Index]
Fund"; and
(b) Include the following notice within reasonable proximity to the
reference to the Fund:
iShares(R) is a registered trademark of Barclays Global Investors, N.A.
("BGI"). Neither BGI nor the iShares(R) Funds make any representations
regarding the advisability of investing in [Name of Investing Fund].
5. NOTICES.
All notices, including all information that either party is required to
provide under the terms of this Agreement and the terms and conditions of
the iShares Order, shall be in writing and shall be delivered by registered
or overnight mail, facsimile, or electronic mail to the address for each
party specified below (which address may be changed from time to time by
written notice to the other party).
If to Xxxxxxx National Asset Management, LLC:
XXXX X.XXXXX
Xxxxxxx National Asset Management, LLC
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Email: xxxx.xxxxx@xxxx.xxx
If to the Investing Fund:
XXXX X.XXXXX
c/o Jackson National Asset Management, LLC
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Email: xxxx.xxxxx@xxxx.xxx
If to the iShares Funds:
XXXXX XXXXXXXXX
U.S. Intermediary Investors Business
Barclays Global Investors, N.A. 00 Xxxxxxx
Xxxxxx Xxx Xxxxxxxxx, XX 00000 Fax: (000) 000-0000 Email:
xxxxx.xxxxxxxxx@xxxxxxxxxxxxxx.xxx
With a copy to:
U.S. LEGAL GROUP Attn: General Counsel
Barclays Global Investors, N.A. 00 Xxxxxxx
Xxxxxx Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Email: xxxxxx.xxxxxx@xxxxxxxxxxxxxx.xxx
U.S. COMPLIANCE GROUP Attn: Xxxxxxxx Xxxxx
Barclays Global Investors, N.A. 00 Xxxxxxx
Xxxxxx Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Email: xxxxxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx
LEGAL CONTRACT ADMINISTRATOR
c/o Jackson National Life Insurance Company
0 Xxxxxxxxx Xxx
Xxxx Xxxx X-00
Xxxxxxx, XX 00000
Fax: (000) 000-0000
6. TERMINATION; GOVERNING LAW.
(a) This Agreement will continue until terminated in writing by either
party upon sixty (60) days' notice to the other party, provided, however,
that the obligation of an Investing Fund in Section 2(d) above shall
survive the termination of this Agreement. This Agreement may not be
assigned by either party without the prior written consent of the other.
(b) This Agreement will be governed by Delaware law without regard to
choice of law principles.
(c) In any action involving the iShares Funds under this Agreement,
each Investing Fund agrees to look solely to the individual iShare Fund(s)
listed on Schedule A that is/are involved in the matter in controversy and
not to any other series of iShares Trust or iShares, Inc
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
JNL Series Trust, Each of the Funds Listed on Schedule A,
Severally and Not Jointly, on Behalf of Itself or Each of Its Series
_______________________________________________
Name: Xxxx X. Xxxxx
Title: President, and Chief Executive Officer
Xxxxxxx National Asset Management, LLC
_______________________________________________
Name: Xxxx X. Xxxxx
Title: President
ISHARES, INC., on
Behalf of Each of Its Series
_______________________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
ISHARES TRUST, on
Behalf of Each of Its Series
_______________________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
SCHEDULE A
LIST OF FUNDS
JNL SERIES TRUST
JNL/S&P Moderate Retirement Strategy Fund
JNL/S&P Moderate Growth Retirement Strategy Fund
JNL/S&P Growth Retirement Strategy Fund
