EX-99.23(b)(4)
JNL VARIABLE FUND LLC
OPERATING AGREEMENT
ARTICLE I
GENERAL
Section 1. NAME. The name of this limited liability company shall be JNL
Variable Fund LLC ("xxx Xxxx"). This limited liability company is established
and maintained under the laws of the State of Delaware.
Section 2. OFFICE. The principal office of the Fund shall be at 000 Xxxx
Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx. The Fund also shall have offices at
such other locations as the Board of Managers of the Fund, from time to time,
may determine.
Section 3. PURPOSES. The Fund is a no-load mutual fund consisting of
several separate investment portfolios.
ARTICLE II
MEMBERS
Section 1. ANNUAL MEETINGS. Unless otherwise required by law, this
Operating Agreement or by the Investment Company Act of 1940 ("xxx 0000 Xxx") as
interpreted by the staff of the Securities and Exchange Commission, the Fund
shall not be required to hold an annual meeting of Members unless the Board of
Managers determines to hold an annual meeting. If the Board makes such a
determination, the annual meeting of Members shall be held at such date and time
as may be designated from time to time by the Board. Failure to hold an annual
meeting at the designated time shall not, however, invalidate the existence of
the Fund nor affect otherwise valid acts of the Fund.
Section 2. SPECIAL MEETINGS. Special meetings of the Members may be called
any time by the Chairman of the Board of Managers or the President, or by a
majority of the Board by vote at a meeting or in writing with or without a
meeting, or in writing by those Members holding a majority of the outstanding
shares of beneficial interest of the Fund.
Section 3. PLACE OF MEETINGS. Meetings of the Members for the election of
Manager shall be held at such place either inside or outside of the State of
Illinois as shall be designated from time to time by the Board of Managers and
stated in the notice of the meeting. Meetings of Members for any other purposes
may be held at such time and place, inside or outside of the State of Illinois,
as shall be stated in the notice of the meeting.
Section 4. NOTICE OF MEETINGS. Not less than ten days nor more than 90 days
before the date of any Members meeting, the Secretary shall give to each Member
entitled to vote at such meeting, written or printed notice stating the time and
place of the meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called, either by mail or by presenting it to
the Member personally or by leaving it at the Member's residence or usual place
of business. If mailed, such notice shall be deemed to be given when deposited
in the United States mail addressed to the Member at his post office address as
it appears on the records of the Fund, with postage thereon prepaid.
Notwithstanding the foregoing provision, a waiver of notice in writing, signed
by the person or persons entitled to such notice and filed with the records of
the meeting, whether before or after the holding thereof, or actual attendance
at the meeting in person or by proxy, shall be deemed equivalent to the giving
of such notice to such persons. Any meeting of Members, annual or special, may
adjourn from time to time to reconvene at the same or some other place, and no
notice need be given of any such adjourned meeting other than by announcement at
the meeting.
Section 5. QUORUM. At any meeting of Members the presence in person or by
proxy of Members entitled to cast a majority of the votes thereat shall
constitute a quorum; but this Section shall not affect any requirement under
statute or under the Operating Agreement for the vote necessary for the adoption
of any measure. In the absence of a quorum the Members present in person or by
proxy, by majority vote and without notice, may adjourn the meeting from time to
time until a quorum shall attend. At any such adjourned meeting at which a
quorum shall be present, any business may be transacted which might have been
transacted at the meeting as originally called.
Section 6. MEMBERS. A simple majority of the votes cast at a meeting of
Members, duly called and at which a quorum is present, shall be sufficient to
take or authorize action upon any matter which may properly come before the
meeting, unless more than a simple majority of votes cast is required by law or
by this Operating Agreement.
Section 7. PROXIES. Except as other required by law, a Member may vote the
Shares owned of record by him or her either in person or by proxy executed in
writing by the Member or by the Member's duly authorized attorney-in-fact. No
proxy shall be valid after eleven months from its date, unless otherwise
provided in the proxy. Every proxy shall be in writing, subscribed by the Member
or the Member's duly authorized attorney, and dated, but need not be sealed,
witnessed or acknowledged.
Section 8. VOTING. In all elections for Managers every Member shall have
the right to vote, in person or by proxy, the Shares owned of record by the
Member, for as many persons as there are Managers to be elected and for whose
election the Member has a right to vote. At all meetings of Members unless the
voting is conducted by inspectors, the proxies and ballots shall be received,
and all questions regarding the qualification of voters and the validity of
proxies and the acceptance or rejection of votes shall be decided by the
Chairman of the Board.
Section 9. ACTION BY MEMBERS OTHER THAN AT A MEETING. Any action required
or permitted to be taken at any meeting of Members may be taken without a
meeting, if a consent in writing, setting forth such action, is signed by all
the Members entitled to vote on the subject matter thereof and any other Members
entitled to notice of a meeting of Members (but not to vote thereat) have waived
in writing any rights which they may have to dissent from such action, and such
consent and waiver are filed with the records of the Fund.
ARTICLE III
BOARD OF MANAGERS
SECTION 1. MANAGEMENT OF THE FUND. The Board shall have power to conduct
the business of the Fund and carry on the Fund's operations in any and all of
its branches and maintain offices both inside and outside of the State of
Illinois, and in any and all other States of the United States of America, in
any and all commonwealths, territories, dependencies, colonies, or possessions
of the United States of America, and in any foreign jurisdiction, and to do all
such other things and execute all such instruments as the Board deems necessary,
proper, or desirable in order to promote the interests of the Fund although such
things are not herein specifically mentioned. Any determination as to what is in
the interests of the Fund made by the Board in good faith shall be conclusive.
The powers of the Board may be exercised without order of or resort to any
court.
SECTION 2. Chairman and Vice Chairman of the Board. The Board shall choose
a Chairman of the Board from among the Managers. The Chairman shall not be an
officer of the Fund. The Chairman cannot be an "interested" person of the Fund,
or of any investment adviser to the Fund, within the meaning of the Investment
Company Act of 1940. The Chairman of the Board shall preside at all meetings of
the Board and of the Shareholders at which the Chairman is present. The Chairman
shall have and may exercise such powers as are, from time to time, assigned to
him or her by the Board. The Board may choose a Vice Chairman of the Board from
among the Managers. The Vice Chairman of the Board, if one be elected, shall,
when present and in the absence of the Chairman of the Board, preside at all
meetings of the Shareholders and Managers, and the Vice Chairman shall perform
such other duties as may from time to time be assigned to him or her by the
Board or as may be required by law.
SECTION 3. POWERS. The Board shall have the following duties,
responsibilities, and power:
a. To select and approve annually an independent public accountant.
b. To authorize and approve agreements providing for investment
management and advisory services, and related matters, and to approve
the continuance of such an agreement subject to any requirements under
the 1940 Act or other applicable law.
c. To authorize and approve agreements providing for sales and
administrative services, and related matters, and to approve the
continuance of such an agreement.
d. To authorize and approve agreements providing for administrative
services for a Portfolio, and related matters, and to approve the
continuance of such an agreement.
e. To authorize and approve agreements providing for custodian services,
and related matters, and to approve the continuance of such an
agreement.
f. To authorize and approve agreements providing for accounting services
for a Portfolio, and related matters, and to approve the continuance
of such an agreement.
g. To authorize and approve agreements providing for underwriting
services, and related matters, and to approve the continuance of such
an agreement.
h. To authorize and approve any and all other material agreements or
contracts pertaining to the operation of the Fund, including, but not
limited to, fidelity bond premium allocation agreements and joint
account agreements to permit the Portfolios to deposit their daily
uninvested cash balances into a single joint account to be used in
order to enter into joint repurchase agreements, and to approve the
continuance of such agreements or contracts.
i. To recommend from time to time any changes deemed appropriate in the
fundamental investment objective or fundamental investment policies,
practices, or limitations of the Fund or any Portfolios of the Fund,
and to make such changes in those investment policies, practices, and
limitations of the Fund or any Portfolio, not requiring approval by
the members, as the Board deems appropriate.
j. To supervise the investment of the assets of the Fund and any
Portfolio in accordance with the investment objectives, policies,
practices, and limitations of the Fund and Portfolios, and to review
periodically the investment portfolios of the Fund and the Portfolios
to ascertain that these investment portfolios are being managed in
accordance with the investment objectives, policies, practices, and
limitations of the Fund and the Portfolios, as appropriate, and the
interests of the shareholders, and to take such corrective action as
may be necessary.
k. To enter into such other agreements and to take any and all actions
necessary or proper in connection with the operation and management of
the Fund and the Portfolios and the assets thereof.
l. To delegate such authority as the Board considers desirable to any
officers of the Fund and to any investment adviser, manager,
administrator, custodian, underwriter, or other agent or independent
contractor.
m. To create, establish, merge and to change in any manner, separate and
distinct Portfolios with separately defined investment objectives and
policies and distinct investment purposes, and to fix the preferences,
voting powers, rights, and privileges of these Portfolios, in
accordance with the provisions of the 1940 Act and other applicable
law, and to establish classes of such Portfolios having relative
rights, powers, and duties as the Board may provide consistent with
applicable law.
n. In general, to carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything necessary,
suitable, or proper for the accomplishment of any purpose or the
attainment of any object or the furtherance of any power hereinbefore
set forth, either alone or in association with others, and to do every
other act or thing incidental or appurtenant to or growing out of or
connected with the aforesaid business or purposes, objects or powers.
Any action by one or more of the members of the Board in their
capacity as such hereunder shall be deemed an action on behalf of the
Fund or the applicable Portfolio, and not an action in an individual
capacity.
The Board will have the resources, including appropriate funding, and
authority to discharge its responsibilities, including the authority
to retain and compensate independent or special counsel and other
experts or consultants.
Section 4. NUMBER AND TENURE. The initial Board shall consist of Xxxxxx X.
Xxxxxxx. Subject to the 1940 Act or other applicable law, the number of members
of the Board which thereafter shall constitute the entire Board may be increased
or decreased by a vote of a majority of the entire Board from time to time;
provided, that this number shall not be less than three or more than nine. Each
member of the Board shall hold office until his or her successor is elected and
qualified or until his or her earlier death, resignation, or removal.
Section 5. VACANCIES. Vacancies in the Board for any cause, including an
increase in the authorized number of members of the Board, may be filled by a
majority of the members of the Board then in office, subject to any requirements
under the 1940 Act or other applicable law. The selection and nomination of
members of the Board who are not 'interested persons' of the Fund, as such term
is defined by the Investment Company Act of 1940, as amended, and the rules of
Securities and Exchange Commission thereunder, shall be committed to the
discretion of the members of the Board who are not interested persons of the
Fund.
Section 6. PLACE OF MEETINGS. Meetings of the Board may be held at any
place inside or outside of the State of Illinois, or as the Board may determine.
Section 7. REGULAR MEETINGS. Regular meetings of the Board shall be held at
any time and place fixed by the Board. Notice of a meeting shall be given by
mail, personal delivery, telephone, telefax, telegram, or other means at any
time preceding the meeting. Notice of a meeting of the Board may be waived
before or after any meeting by signed written waiver. Neither the business to be
transacted at, nor the purpose of, any meeting of the Board need be stated in
the notice or waiver of notice of such meeting, and no notice need be given of
action proposed to be taken by written consent. The attendance of a member at a
meeting shall constitute a waiver of notice of such meeting, except where a
member attends a meeting for the express purpose of objecting to the transaction
of any business on the ground that the meeting has not been lawfully called or
convened.
Section 8. SPECIAL MEETINGS. Special meetings of the Board may be called at
any time by one or more members of the Board.
Section 9. QUORUM. A majority of the total number of members of the Board
shall constitute a quorum for the transaction of business, provided that a
quorum shall in no case be less than three members. If at any meeting of the
Board there shall be less than a quorum present, a majority of those present may
adjourn the meeting until a quorum shall have been obtained. Except as otherwise
provided by law, or any contract or agreement to which the Fund is a party, the
act of a simple majority of the members of the Board present at any meeting at
which there is a quorum shall be the act of the Board.
Section 10. COMMITTEES. The Board may, by resolution, designate an
executive committee and other committees composed of two or more members, and
the members thereof, to the extent permitted by law, and each subcommittee shall
have the powers, authority, and duties specified in the resolution creating the
same and permitted by law. Each committee may make rules for the notice and
conduct of its meetings and the keeping of the records thereof. The term of any
member of any committee shall be fixed by the Board.
Section 11. COMPENSATION OF MANAGERS. The Board may authorize reasonable
compensation to members for their services as members of the Board and as
members of the committees of the Board and may authorize the reimbursement of
reasonable expenses incurred by members in connection with rendering those
services.
Section 12. RESIGNATIONS. Any member of the Board may resign his or her
membership at any time by mailing or delivering his or her resignation in
writing to the Chairman of the Board or to a meeting of the Board. No member of
the board who resigns shall have any right to compensation for any period
following his or her resignation. Any resignation shall take effect at the time
specified therein or, if the time be not specified, upon receipt thereof.
Section 13. ACTION WITHOUT MEETING. Any action required or permitted to be
taken at any meeting of the Board or of any committee thereof may be taken
without a meeting if all the members of the Board or committee thereof, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of the proceedings of the Board or committee thereof.
Section 14. ACTION BY THE BOARD. Any meeting of the Board conducted by
telephone shall be deemed to take place at the principal office of the Fund or
any other place, as determined by the Board. Subject to the requirements of the
1940 Act, the Board by majority vote may delegate to any one or more of the
Board's members the authority of the Board to approve particular matters or take
particular actions on behalf of the Fund. Written consents or waivers of the
Board may be executed in one or more counterparts. Execution of a written
consent or wavier and delivery thereof to the Fund may be accomplished by
telefax.
Section 15. LIMITATION OF LIABILITY. The members of the Board shall not be
responsible or liable in any event for any neglect or wrongdoing of any officer,
agent, employee, adviser or principal underwriter of the Fund, nor shall any
member be responsible for the act or omission of any other member, but nothing
herein contained shall protect any member against any liability to which he or
she would otherwise be subject by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct of
his or her office.
Every note, bond, contract, instrument, certificate, share or undertaking
and every other act or thing whatsoever executed or done by on behalf of the
Fund or the Board or any of them in connection with the Fund shall be
conclusively deemed to have been executed or done only in or with respect to
their or his or her capacity as members or a member, and such members or member
shall not be personally liable thereon.
ARTICLE IV
OFFICERS
Section 1. OFFICERS. The officers of the Fund shall consist of a president,
a secretary, a treasurer, and such other officers or assistant officers,
including vice-presidents, as may be elected by the Board. Any two or more of
the offices may be held by the same person, except that the same person may not
be both president and secretary. The Board may designate a vice-president as an
executive vice-president and may designate the order in which the other
vice-presidents may act. The Board shall appoint and terminate such Officers as
the Board shall consider appropriate.
Section 2. ELECTION AND TENURE. At the initial organizational meeting and
at least once a year thereafter, the Board shall elect the president, secretary,
treasurer, and other such officers as the Board shall deem necessary or
appropriate in order to carry out the business of the Fund. Each officer shall
hold the office until his or her successors have been duly elected and
qualified.
Section 3. PRESIDENT AND VICE-PRESIDENTS. The President shall be the chief
executive officer of the Fund and, subject to the control of the Board, shall
have general supervision, direction, and control of the business of the Fund and
shall exercise such general powers of management as are usually vested in the
office of President of a corporation. Subject to the direction of the Board, the
President shall have power in the name and of behalf of the Fund to execute any
and all loan documents, contracts, agreements, deeds, mortgages, applications
for Commission orders, and other instruments in writing, and to employ and
discharge employees and agents of the Fund. The President shall have such
further authorities and duties as the Board shall from time to time determine.
In the absence or disability of the President, the Vice-Presidents in order of
their rank as fixed by the Board or, if more than one and not ranked, the
Vice-Presidents designated by the Board, or, if not so designated, designated by
the President, shall perform all the duties of the President, and when so acting
shall have all of the powers of and be subject to all of the restrictions upon
the President. Subject to the direction of the name and on behalf of the Fund to
execute any and all loan documents, contracts, agreements, deeds, mortgages, and
other instruments in writing, and, in addition, shall have such other duties and
powers as shall be designated from time to time by the Board or by the
President.
Section 4. SECRETARY. The Board may select a Secretary and an Assistant
Secretary who need not be members of the Board. The Secretary and the Assistant
Secretary shall have the power to certify the minutes of the proceedings of the
Board and portions thereof and shall perform such duties and have such other
powers as these Rules and Regulations or the Board shall designate from time to
time. In the absence of the Secretary and Assistant Secretary, an appointee of
the Board shall perform such duties and have such powers.
Section 5. TREASURER. Except as otherwise directed by the Board, the
Treasurer shall have the general supervision of the monies, funds, securities,
notes receivable, and other valuable papers and documents of the Fund, and shall
have and exercise under the supervision of the Board and of the President all
powers and duties incident to his office. The Treasurer may endorse for deposit
or collection all notes, checks, and other instruments payable to the Fund or to
its order. The Treasurer shall deposit all funds of the Fund in such
depositories as the Board shall designate. The Treasurer shall be responsible
for such disbursement of the funds of the Fund as may be ordered by the Board or
the President. The Treasurer shall keep accurate separate account of the books
of the Fund's transactions, which shall be the property of the Fund and,
together with all other property in his possession, shall be subject at all
times to the inspection and control of the Board. Unless the Board shall
otherwise determine, the Treasurer shall be the principal accounting officer of
the Fund and shall also be the principal financial officer of the Fund. The
Treasurer shall have such other duties and authorities as the Board shall from
time to time determine. Notwithstanding anything to the contrary herein
contained, the Board may authorize any adviser, administrator, manager, or agent
to maintain bank accounts and deposit and disburse funds of the Fund or any
Portfolio thereof.
Section 6. VACANCIES AND REMOVAL. The Board may fill any vacancy which may
occur in any office. Officers shall hold office at the pleasure of the Board and
any officer may be removed from office at any time with or without cause by the
vote of a majority of the entire Board whenever, in the judgment of the Board,
the best interests of the Fund will be served thereby.
Section 7. RESIGNATIONS. Any officer may resign his office at any time by
mailing or delivering his or her resignation in writing to a meeting of the
Board. No officer of the Fund who resigns shall have any right to compensation
for any period following his or her resignation. Any resignation shall take
effect at the time specified therein or, if the time be not specified, upon
receipt thereof.
ARTICLE V
INDEMNIFICATION
Section 1. MEMBERS OF THE BOARD, OFFICERS, ETC. The Fund shall indemnify
each current and former member of its Board and each of its officers (including
persons who serve at the Fund's request as directors, officers or trustees of
another organization in which the Fund has any interest as a shareholder,
creditor or otherwise) (hereinafter referred to as a "Covered Person") against
all judgments, fines, settlements and expenses to the fullest extent authorized,
and in the manner permitted, by applicable federal and state law, including but
not limited to amounts paid in satisfaction of judgments, in compromise or as
fines and penalties, and counsel fees reasonably incurred by any Covered Person
in connection with the defense or disposition of any action, suit or other
proceeding, whether civil, criminal, administrative or investigative, and any
appeal therefrom, before any court or administrative or legislative body, in
which such Covered Person may be or may have been involved as a party or
otherwise or with which such person may be or may have been threatened, while in
office or thereafter, by reason of being or having been such a Covered Person.
The Fund shall advance the expenses of Covered Persons who are parties to
any Proceeding to the fullest extent authorized, and in the manner permitted, by
applicable federal and state law. For purposes of this paragraph, "Proceeding"
means any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative, or investigative. The Fund shall indemnify each
Covered Person against, or advance the expenses of any Covered Person for, the
amount of any deductible provided in any liability insurance policy maintained
by the Fund.
Section 2. INDEMNIFICATION NOT EXCLUSIVE; DEFINITIONS. The right of
indemnification hereby provided shall not be exclusive of or affect any other
rights to which any such Covered Person may be entitled. As used in this
Article, the term "Covered Person" shall include such person's heirs, executors
and administrators, and a "disinterested person" is a person against whom none
of the actions, suits or other proceedings in question or another action, suit
or other proceeding on the same or similar grounds is then or has been pending.
Nothing contained in this Article shall affect any rights to indemnification to
which personnel of the Fund, other than members of the Board and officers, and
other persons may be entitled by contract or otherwise under law, not the power
of the Fund to purchase and maintain liability insurance on behalf of such
persons.
Section 3. MEMBERS. In case any holder of Fund interests or former holder
of Fund interests shall be held to be personally liable solely by reason of his
or her being or having been a holder of Fund interests and not because of his or
her acts or omissions or for some other reason, the holder of Fund interests or
former holder of Fund interests (or his or her heirs, executors, administrators
or other legal representative or, in the case of a corporation or other entity,
its corporate or other general successor) shall be entitled to beheld harmless
from and indemnified against all loss and expense arising from such liability,
but only out of the assets of the particular series of which he or she is or was
a holder.
Section 4. TRUSTEES, MEMBERS, ETC. NOT PERSONALLY LIABLE; NOTICE. All
persons extending credit to, contracting with or having any claim against the
Fund or a particular series shall look only to the assets of the Fund or the
assets of that particular series for payment under such credit, contract or
claim; and neither the holder of Fund interests nor the members of the Board,
nor any of the Fund's officers, employees or agents, whether past, present or
future, shall be personally liable therefor. Nothing in this Operating Agreement
shall protect any members of the Board against any liability to which such
members of the Board would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of the office of member of the Board.
Every note, bond, contract, instrument, certificate or undertaking made or
issued by the members of the Board or by any officers or officer shall recite
that the same was executed or made by or on behalf of the Fund or by them as a
member of the Board or members of the Board or as officers or officer and not
individually and that the obligations of such instrument are not binding upon
any of them or the holders of Fund interests individually but are binding only
upon the assets and property of the Fund, and may contain such further recital
as he or she or they may deem appropriate, but the omission thereof shall not
operate to bind any members of the Board or member of the Board or officers or
officer or holder or holders of Fund interests individually.
Section 5. GOOD FAITH ACTION BY MEMBERS OF THE BOARD, EXPERT ADVICE, NO
BOND OR SURETY. The exercise by the members of the Board of their powers and
discretions hereunder shall be binding upon everyone interested. A member of the
Board shall be liable for his or her own willful misfeasance, bad faith, gross
negligence of reckless disregard of the duties involved in the conduct of the
office of member of the Board, and for nothing else, and shall not be liable for
errors of judgment or mistakes of fact or law. The members of the Board may take
advice of counsel or other experts with respect to the meaning and operation of
this Operating Agreement, and shall be under no liability for any act or
omission in accordance with such advice or for failing to follow such advice.
The members of the Board shall not be required to give any bond as such, nor any
surety if a bond is required.
Section 6. LIABILITY OF THIRD PERSONS DEALING WITH MEMBERS OF THE BOARD. No
person dealing with the members of the Board shall be bound to make any inquiry
concerning the validity of any transaction made or to be made by the members of
the Board or to see to the application of any payments made or property
transferred to the Fund or upon its order.
ARTICLE VI
CUSTODY OF ASSETS
Securities comprising the Fund's portfolios and cash representing the
proceeds from sales of portfolio securities and of payment of principal and
interest upon portfolio securities shall be held by a custodian or trustee which
shall be a bank or trust company having the qualifications prescribed in the
1940 Act. The Fund shall, upon the resignation or inability to serve of the
custodian or trustee, (1) use its best efforts to obtain a successor custodian
or trustee, and (2) require that the cash and securities owned by the Fund be
delivered to the successor custodian or trustee.
ARTICLE VII
FISCAL YEAR
The fiscal year of the Fund shall end on such date as the members of the
Board from time to time shall determine.
ARTICLE VIII
AMENDMENTS
Except as otherwise provided by law, the Operating Agreement of the Fund
may be amended or repealed by the Board.
The provisions of this Operating Agreement are intended to satisfy the
requirements of the 1940 Act. In the event that federal law should be amended or
rules, regulations, rulings, or exemptions thereunder should be adopted, with
the result that any or all of the provisions of the Operating Agreement shall
not be required by federal law, such provisions of the Operating Agreement may
be amended or repealed by the Board of the Fund or by any committee thereof so
authorized by such Board.
Adopted: September 9, 2004
