EX-99.23d(64)
INVESTMENT SUB-ADVISORY AGREEMENT
This AGREEMENT is effective this 1st day of May, 2004, by and between
XXXXXXX NATIONAL ASSET MANAGEMENT, LLC, a Michigan limited liability company and
registered investment adviser ("Adviser"), and FIDELITY MANAGEMENT & RESEARCH
COMPANY, a Delaware Corporation and registered investment adviser
("Sub-Adviser").
WHEREAS, Adviser is the investment manager for the JNL Series Trust (the
"Trust"), an open-end management investment company registered under the
Investment Company Act of 1940, as amended ("1940 Act");
WHEREAS, the Adviser represents that it has entered into an Investment
Advisory and Management Agreement ("Management Agreement") dated as of January
31, 2001 with the Trust; and
WHEREAS, Adviser desires to retain Sub-Adviser as Adviser's agent to
furnish investment advisory services to the investment portfolios of the Trust
listed on Schedule A hereto ("each a Fund").
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. APPOINTMENT. Adviser hereby appoints Sub-Adviser to provide certain
sub-investment advisory services to the Funds for the period and on the
terms set forth in this Agreement. Sub-Adviser accepts such appointment and
agrees to furnish the services herein set forth for the compensation herein
provided.
2. DELIVERY OF DOCUMENTS. Adviser has or will furnish Sub-Adviser with copies
properly certified or authenticated of each of the following prior to the
commencement of the Sub-Adviser's services:
a) the Trust's Agreement and Declaration of Trust, as filed with the
Secretary of State of The Commonwealth of Massachusetts on June 1,
1994, and all amendments thereto or restatements thereof (such
Declaration, as presently in effect and as it shall from time to time
be amended or restated, is herein called the "Declaration of Trust");
b) the Trust's By-Laws and amendments thereto;
c) resolutions of the Trust's Board of Trustees authorizing the
appointment of Sub-Adviser and approving this Agreement;
d) the Trust's Notification of Registration on Form N-8A under the 1940
Act as filed with the Securities and Exchange Commission (the "SEC")
and all amendments thereto;
e) the Trust's Registration Statement on Form N-1A under the Securities
Act of 1933, as amended ("1933 Act") and under the 1940 Act as filed
with the SEC and all amendments thereto insofar as such Registration
Statement and such amendments relate to the Funds; and
f) the Trust's most recent prospectus and Statement of Additional
Information for the Funds (collectively called the "Prospectus").
Adviser will furnish the Sub-Adviser with copies of all amendments of
or supplements to the foregoing within a reasonable time before they
become effective. Any amendments or supplements that impact the
management of the Funds will not be deemed effective with respect to
the Sub-Adviser until the Sub-Adviser's approval thereof.
3. MANAGEMENT. Subject always to the supervision of the Adviser, who in turn
is subject to the supervision of the Trust's Board of Trustees, Sub-Adviser
will furnish an investment program in respect of, and make investment
decisions for, all assets of the Funds and place all orders for the
purchase and sale of securities, including foreign or domestic securities
or other property (including financial futures and options of any type),
all on behalf of the Funds. In the performance of its duties, Sub-Adviser
will satisfy its fiduciary duties to the Funds (as set forth below), and
will monitor the Funds' investments, and will be subject to and performed
in accordance with the provisions of Trust's Declaration of Trust and
By-Laws, as amended from time to time, and the stated investment
objectives, policies and restrictions of the Funds, which may be amended
from time to time. Sub-Adviser and Adviser will each make its investment
professionals, other than the portfolio managers, available to the other
from time to time at reasonable times to review investment policies of the
Funds and to consult with each other regarding the investment affairs of
the Funds. The portfolio managers shall be available to meet with the
Fund's Board of Trustees at the Fund's principal place of business on an
annual basis on due notice and more frequently if requested by the board,
and agreed upon by the Sub-Adviser. Sub-Adviser will provide periodic
reports (quarterly or annual) to the Board of Trustees and to Adviser with
respect to the implementation of such program, and such other reports as
the Board or the Adviser reasonably may request. Subject to the following
paragraph, Sub-Adviser will manage the assets of the Funds that are under
its management pursuant to this Agreement in compliance with the
requirements of the 1940 Act, the regulations adopted by the Securities and
Exchange Commission thereunder, and the diversification provisions of
Section 817(h) of the Internal Revenue Code of 1986, as amended ("IRC"),
and its accompanying Regulation, Treas. Reg. Section 1.817-5, applicable to
the Funds.
The Adviser acknowledges that the Sub-Adviser is not the principal
compliance agent for the Funds or the Adviser, and does not have full
access to all of the Funds' books and records necessary to perform certain
compliance testing. To the extent that management of a Fund's assets
pursuant to this Section 3 in compliance with any provision of applicable
law (including sub-chapters M and L of the IRC, the 1940 Act and the
Investment Advisers Act of 1940, as amended ("Applicable Law")) and in
accordance with the Trust Documents, policies and determinations of the
Board of Trustees of the Trust and the Advisor and the Funds' Prospectus
(collectively, the "Charter Requirements"), requires access to information
in the Fund's books and records to which the Sub-Adviser does not have
access, Sub-Adviser shall manage the Fund's assets in accordance with this
Sub-Advisory Agreement, Applicable Law and Charter Requirements in light of
Sub-Adviser's books and records and any written instructions or information
provided by the Fund or the Adviser, and, provided that the relevant books
and records of Sub-Adviser are complete and accurate in all material
respects, Sub-Adviser shall not be liable for any compliance violation
where such transaction or occurrence would have complied with Fund's
prospectus, Applicable Law and the Sub-Adviser's books and records.
Adviser will not act in a manner that would result in Sub-Adviser failing
to maintain the required diversification and if the failure to diversify is
inadvertent, Xxxxxxx National Life Insurance Company and any of its
affiliates investing in the Funds, as owner of the assets in the Funds,
shall in good faith and in conjunction with Sub-Adviser take prompt action
to bring the Funds back into compliance (to the extent possible) within the
time permitted under the Code.
The Adviser agrees that the Sub-Adviser shall not be liable for any failure
to recommend the purchase or sale of any security on behalf of any Fund on
the basis of any information which might, in the Sub-Adviser's opinion,
constitute a violation of any federal or state laws, rules or regulations.
The Sub-Adviser further agrees that it:
a) will comply with all applicable Rules and Regulations of the SEC and
in addition will conduct its activities under this Agreement in
accordance with any applicable regulations of any other governmental
authority to whose authority it is subject pertaining to its
investment advisory activities;
b) will report regularly to Adviser and, to the Trust's Board of Trustees
as reasonably agreed between the Adviser and Sub-Adviser and will make
investment professionals, other than the portfolio managers, available
for the purpose of reviewing with representatives of Adviser and the
Board of Trustees as often as quarterly and as agreed to by the
Adviser and Sub-Adviser, the management of the Funds, including,
without limitation, review of the general investment strategies of the
Funds, the performance of the Funds in relation to the specified
benchmarks and will provide various other reports from time to time as
reasonably requested by Adviser on a monthly, quarterly or annual
basis, or as otherwise agreed upon;
c) will provide to the Adviser, as agreed upon by the Sub-Adviser (i) a
monthly compliance checklist developed for each Fund by Adviser and
Sub-Adviser, and (ii) quarterly reports developed for each Fund by
Adviser and Sub-Adviser;
d) will prepare and maintain books and records pertaining to
Sub-Adviser's activities with respect to each Fund's securities
transactions in accordance with Section 7 herein, and will furnish
Adviser and Trust's Board of Trustees such periodic and special
reports as the Adviser may reasonably request , upon reasonable prior
written notice;
e) will prepare and cause to be filed in a timely manner Form 13F and, if
required, Schedule 13G with respect to securities held for the account
of the Funds subject to Sub-Adviser's supervision;
f) will act upon reasonable instructions from Adviser not inconsistent
with the fiduciary duties and Investment Objectives hereunder, where
the Sub-Adviser is allowed a reasonable period of time to respond to
said instruction and negotiate any necessary changes;
g) will treat confidentially and as proprietary information of Trust all
such records and other information relative to the Trust maintained by
the Sub-Adviser, and will not use such records and information for any
purpose other than performance of its responsibilities and duties
hereunder, except after prior notification to and approval in writing
by Trust, which approval shall not be unreasonably withheld and may
not be withheld where the Sub-Adviser may be exposed to civil or
criminal contempt proceedings for failure to comply, when requested to
divulge such information by duly constituted authorities, or when so
requested by Trust, PROVIDED, HOWEVER, that notwithstanding the
foregoing, Sub-Adviser may disclose such information as required by
applicable law, or regulation or upon request by a regulator or
auditor of Sub-Adviser; and
h) absent specific instructions to the contrary provided to it by the
Adviser at least thirty (30) days prior to a vote and subject to its
receipt of all necessary voting materials, the Sub-Adviser will vote
proxies received in connection with securities held by the Funds
consistent with its fiduciary duties hereunder. The Adviser shall
instruct the Trust's Custodian, the administrator (the
"Administrator"), and other parties providing services to the Funds to
promptly forward misdirected proxy materials to the Sub-Adviser. The
Sub-Adviser shall report quarterly whether any proxies were voted for
the funds. The Sub-Adviser shall provide the Trust with such
information as may be necessary for the Trust timely to prepare any
proxy voting reports required under the federal security laws.
i) The Sub-Adviser makes no representations or warranty, express or
implied, that any level of performance or investment results will be
achieved by the Funds or that the Funds will perform comparably with
any standard, including any other clients of the Sub-Adviser or index.
j) Upon request of Trust and/or the Funds, Sub-Adviser shall provide
reasonable assistance in connection with the determination of the fair
value of securities in a Fund for which market quotations are not
readily available and the parties to this Agreement agree that the
Sub-Adviser shall not bear responsibility or liability for the
determination or accuracy of the valuation of any portfolio securities
and other assets of the Funds.
4. CUSTODY OF ASSETS. Sub-Adviser shall at no time have the right to
physically possess the assets of the Funds or have the assets registered in
its own name or the name of its nominee, nor shall Sub-Adviser in any
manner acquire or become possessed of any income, whether in kind or cash,
or proceeds, whether in kind or cash, distributable by reason of selling,
holding or controlling such assets of the Funds. In accordance with the
preceding sentence, Sub-Adviser shall have no responsibility with respect
to the collection of income, physical acquisition or the safekeeping of the
assets of the Funds. All such duties of collection, physical acquisition
and safekeeping shall be the sole obligation of the custodian. The
Sub-Adviser shall have no liability for the acts or omissions of the
custodian.
5. BROKERAGE. The Sub-Adviser is responsible for decisions to buy and sell
securities for each Fund, broker-dealer selection, and negotiation of
brokerage commission rates. Sub-Adviser shall have the express authority to
negotiate, open, continue and terminate brokerage accounts and other
brokerage arrangements with respect to all portfolio transactions entered
into by Sub-Adviser on behalf of the Funds. Sub-Adviser will provide copies
of all such agreements to the Adviser. The Sub-Adviser's agrees that, in
selecting a broker or dealer, if any, to effect a particular transaction,
it shall use best efforts to seek "best execution", which means executing
portfolio transactions at prices which are advantageous to the Funds and at
commission rates which are reasonable in relation to the benefits received.
In selecting broker or dealers qualified to execute a particular
transaction, the Sub-Adviser, will take all relevant factors into
consideration, including, but not limited to: breath of the market and the
price of the security; the reliability, integrity and financial condition
of the broker-dealer; the size of and difficulty in executing the order;
and reasonableness of the commission, if any, with respect to the specific
transaction and in evaluating the best overall terms available, and in
selecting the broker or dealer, if any, to execute a particular
transaction, the Sub-Adviser shall have discretion to effect investment
transactions for each Fund through broker-dealers (including, to the extent
permissible under applicable law, broker-dealer affiliates) who provide
brokerage and/or research services, as such services are defined in section
28(e) of the Securities Exchange Act of 1934, as amended (the "1934 Act"),
and to cause such Fund to pay any such broker-dealers an amount of
commission for effecting a portfolio investment transaction in excess of
the amount of commission another broker-dealer would have charged for
effecting that transaction, if the Sub-Adviser determines in good faith
that such amount of commission is reasonable in relation to the value of
the brokerage or research services provided by such broker-dealer, viewed
in terms of either that particular investment transaction or the
Sub-Adviser's overall responsibilities with respect to such Fund and other
accounts to which the Sub-Adviser exercises investment discretion (as such
term is defined in section 3(a)(35) of the 1934 Act). Allocation of orders
placed by the Sub-Adviser on behalf of a Fund to such broker-dealers shall
be in such amounts and proportions as the Sub-Adviser shall determine in
good faith in conformity with its responsibilities under applicable laws,
rules and regulations. The Sub-Adviser will submit reports on such
allocations to the Adviser as reasonably requested by the Adviser, in such
form as may be mutually agreed to by the parties hereto, indicating the
broker-dealers to whom such allocations have been made and the basis
therefor.
6. EXPENSES. Except for expenses specifically assumed or agreed to be paid by
the Sub-Adviser pursuant hereto, the Sub-Adviser shall not be liable for
any expenses of the Adviser, the Trust or any Funds, including, but not
limited to, investment advisory fees, and administration fees including
custodian fees and expenses; fees for necessary professional and brokerage
services in connection with the purchase or sale of securities or other
investment instruments of the Funds; costs relating to local administration
of securities; interest and taxes; and fees for any pricing services. The
Sub-Adviser shall bear its own expenses incurred by it in connection with
the performance of its services under this Agreement.
7. BOOKS AND RECORDS. In compliance with the requirements of Rule 31a-3 under
the 1940 Act, the Sub-Adviser hereby agrees that it will maintain all
records required to be maintained by a sub-adviser, including without
limitation books and records required to be maintained by Rule 31a-1 under
the 1940 Act with respect to each Fund's portfolio transactions. All
records which it maintains for the Trust are the property of the Trust
(except for such records as are required to be maintained under the
Investment Advisers Act of 1940, as amended (Advisers Act) which shall be
the joint property of the Fund and the Sub-Adviser) and further agrees to
surrender promptly to the Trust any of such records upon the Trust's
request, copies of which may be retained by the Sub-Adviser; provided that
the Sub-Adviser may retain copies of any such records. Sub-Adviser further
agrees to preserve for the periods prescribed by Rule 31a-2 under the 1940
Act the records required to be maintained by Rule 31a-1 under the 1940 Act
related to each Fund's portfolio transactions.
8. COMPENSATION. For the services provided and the expenses assumed pursuant
to this Agreement, Adviser will pay the Sub-Adviser, and the Sub-Adviser
agrees to accept as full compensation therefore, a sub-advisory fee accrued
daily and payable monthly, as soon as practicable after the last day of
each calendar month based on the average daily net assets in the Funds
determined at the close of the New York Stock Exchange on each day the
exchange is open for trading in accordance with Schedule B hereto. If the
Sub-Adviser shall serve for less than the whole of any month or other
agreed-upon interval, the foregoing compensation shall be prorated. The
Adviser may from time to time waive the compensation it is entitled to
receive from the Trust; however, any such waiver will have no effect on the
Adviser's obligation to pay the Sub-Adviser the compensation provided for
herein.
9. SERVICES TO OTHERS. Adviser understands, and has advised the Trust's Board
of Trustees, that Sub-Adviser now acts, or may in the future act, as an
investment adviser to fiduciary and other managed accounts, and as
investment adviser or sub-investment adviser to other investment companies
or accounts. Adviser has no objection to Sub-Adviser acting in such
capacities, provided that whenever the Fund and one or more other
investment advisory clients of Sub-Adviser have available funds for
investment, investments suitable and appropriate for each will be allocated
in a manner believed by Sub-Adviser to be equitable to each. Sub-Adviser
may group orders for a Fund with orders for other funds and accounts to
obtain the efficiencies that may be available on larger transactions when
it determines that investment decisions are appropriate for each
participating account. Sub-Adviser cannot assure that such policy will not
adversely affect the price paid or received by a Fund. Adviser recognizes,
and has advised Trust's Board of Trustees, that in some cases this
procedure may adversely affect the size and the opportunities of the
position that the participating Fund may obtain in a particular security.
In addition, Adviser understands, and has advised the Trust's Board of
Trustees, that the persons employed by Sub-Adviser to assist in
Sub-Adviser's duties under this Agreement will not devote their full time
to such service and nothing contained in this Agreement will be deemed to
limit or restrict the right of Sub-Adviser or any of its affiliates to
engage in and devote time and attention to other businesses or to render
services of whatever kind or nature.
10. LIMITATION OF LIABILITY; STANDARD OF CARE. Sub-Adviser, its officers,
directors, employees, agents or affiliates will not be subject to any
liability to the Adviser or the Funds or their directors, officers,
employees, agents or affiliates for any error of judgment or mistake of law
or for any loss suffered by the Funds, any shareholder of the Funds or the
Adviser either in connection with the performance of Sub-Adviser's duties
under this Agreement or its failure to perform due to events beyond the
reasonable control of the Sub-Adviser or its agents, except for a loss
resulting from Sub-Adviser's willful misfeasance, or gross negligence in
the performance of its duties or by reason of its reckless disregard of its
obligations and duties under this Agreement. Federal and State securities
laws may impose liabilities under certain circumstances on persons who act
in good faith, and therefore nothing herein shall in any way constitute a
waiver or limitation of any right which Adviser may have under any
applicable laws.
11. INDEMNIFICATION. The Sub-Adviser agrees to hold harmless and indemnify the
Adviser and the Trust, and their respective directors and officers and each
person, if any, who controls the Adviser or the Trust within the meaning of
Section 2(a)(9) of the Investment Company Act of 1940, as amended, from and
against any and all losses, claims, damages, liabilities and expenses
(including reasonable attorneys' fees and expenses and costs of
investigation) arising out of or based upon the Sub-Adviser's willful
misfeasance, bad faith, gross negligence, or reckless disregard of its
duties under this Agreement. The Adviser agrees to hold harmless and
indemnify the Sub-Adviser, and its directors, officers, employees and each
person, if any, who controls FMR within the meaning of Section 15 of the
Securities Act of 1933, as amended, from and against any and all losses,
claims, damages, liabilities and expenses (including reasonable attorneys'
fees and expenses and costs of investigation) arising out of or based upon
the Adviser's willful misfeasance, bad faith, gross negligence, or reckless
disregard of its duties under this Agreement or the contents of the
Prospectus and Statement of Additional Information of the Funds in effect
from time to time, provided that such losses, claims, damages, liabilities
and expenses did not relate to, or was not based upon, or did not arise out
of an act or omission of the Sub-Adviser, its shareholders, or any of its
partners, officers, directors, employees, agents or controlling persons
constituting reckless disregard, willful misfeasance, bad faith, gross
negligence, fraud or willful misconduct.
12. DURATION AND TERMINATION. This Agreement will become effective as to a Fund
upon execution or, if later, on the date that initial capital for such Fund
is first provided to it and, unless sooner terminated as provided herein,
will continue in effect for two years from the date of its execution.
Thereafter, if not terminated as to a Fund, this Agreement will continue in
effect as to a Fund for successive periods of 12 months, PROVIDED that such
continuation is specifically approved at least annually by the Trust's
Board of Trustees or by vote of a majority of the outstanding voting
securities of such Fund, and in either event approved also by a majority of
the Trustees of the Trust who are not interested persons of the Trust, or
of the Adviser, or of the Sub-Adviser. Notwithstanding the foregoing, this
Agreement may be terminated as to a Fund at any time, without the payment
of any penalty, on sixty days' written notice by the Trust or Adviser, or
on sixty days' written notice by the Sub-Adviser. This Agreement will
immediately terminate in the event of its assignment. (As used in this
Agreement, the terms "majority of the outstanding voting securities",
"interested persons" and "assignment" have the same meaning of such terms
in the 1940 Act.) Section 10 and 11 herein shall survive the termination of
this Agreement.
13. ACKNOWLEDGEMENTS OF ADVISER. Adviser acknowledges and agrees that:
(a) The assets of the Funds may be invested in futures contracts and
consents to the Sub-Adviser's use of the alternate disclosure and
recordkeeping standards under Commodity Futures Trading Commission
Rule 4.7 with respect to such futures trading, which alternate
standards are available to the Sub-Adviser on account of each Fund's
ownership of securities of issuers not affiliated with the Funds and
other investments with an aggregate market value of at least
$2,000,000 and on account of the Trust's status as an investment
company registered under the 1940 Act (not formed for the specific
purpose of either investing in an exempt pool or opening an exempt
account);
(b) It is excluded from the definition of a commodity pool operator under
CFTC Rule 4.5, and in connection with such exemption has filed a
notice of eligibility and will provide the Sub-Adviser with a copy of
such notice of eligibility before the execution of this Agreement; and
(c) The Adviser hereby acknowledges that not less than forty-eight (48)
hours before the date it has executed this Agreement, it received from
the Sub-Adviser a copy of Part II of Sub-Advisers Form ADV, as
required by Rule 204-(3) of the Advisers Act, as amended.
14. OBLIGATIONS OF ADVISER. The Adviser agrees to provide or complete, as the
case may be, the following prior to the commencement of the Sub-Adviser's
investment advisory services as specified under this Agreement:
(a) A list of first tier affiliates and second tier affiliates (i.e.,
affiliates of affiliates) of the Fund;
(b) A list of restricted securities for each Fund (including CUSIP, Sedol
or other appropriate security identification); and
(c) A copy of the current compliance procedures for each Fund.
(d) Copies of reports made by each Fund to its shareholders.
(e) Any proxy statement of the Trust sent to shareholders of the Funds for
the purpose of voting on matters affecting the Funds.
The Adviser also agrees to promptly update the above referenced items
in order to ensure their accuracy, completeness and/or effectiveness.
15. REPRESENTATIONS AND WARRANTIES. Each party hereto represents and warrants
to the other party hereto:
(a) that it is a duly registered investment adviser under the Advisers Act
and a duly registered investment adviser in all jurisdictions in which
it is required to be so registered, and will continue to be so
registered for so long as this Agreement remains in effect;
(b) that it has the authority to enter into this Agreement and to perform
its obligations under this Agreement;
(c) that it currently maintains, and shall continue to maintain as long as
this Agreement is in effect, Directors & Officers, Errors & Omissions
and fidelity bond insurance coverage it deems sufficient; and
(d) that each party to this Agreement agrees to cooperate with each other
party in connection with any investigation or inquiry relating to this
Agreement or the Trust.
16. CONFIDENTIAL TREATMENT. It is understood that all information furnished by
one party to the other party (including their respective agents, employees
and representatives) hereunder shall be treated as confidential and shall
not be disclosed to third parties, except if it is otherwise in the public
domain or, with notice to the other party, as may be necessary to comply
with applicable laws, rules, regulations, subpoenas or court orders.
Without limiting the foregoing, Adviser acknowledges that the securities
holdings of the Funds constitute information of value to Sub-Adviser, and
agrees (1) not to use for any purpose, other than for Adviser or the Trust,
or their agents, to supervise or monitor Sub-Adviser, the holdings or trade
related information of the Trust; and (2) not to disclose the Funds'
holdings, except: (a) as required by applicable law or regulation; (b) as
required by state or federal regulatory authorities; (c) to the Board,
counsel to the Board, counsel to the Trust, counsel to the Adviser, the
Administrator or any sub-administrator, the independent accountants and any
other agent of the Trust or the Adviser; or (d) as otherwise agreed to by
the parties in writing. Further, Adviser agrees that information supplied
by Sub-Adviser, including approved lists, internal procedures, compliance
procedures and any board materials, is valuable to Sub-Adviser, and Adviser
agrees not to disclose any of the information contained in such materials,
except: (i) as required by applicable law or regulation; (ii) as required
by state or federal regulatory authorities; (iii) to the Board, counsel to
the Board, counsel to the Trust, counsel to the Adviser, the Administrator
or any sub-administrator, the independent accountants and any other agent
of the Trust or the Adviser; or (iv) as otherwise agreed to by the parties
in writing, which consent shall not be unreasonably withheld.
17. USE OF FMR'S NAME AND LOGO. The parties agree that the name of FMR, the
names of any affiliates of FMR and any derivative, logo, trademark, service
xxxx or trade name are the valuable property of FMR and its affiliates.
During the term of this Agreement, subject to the Sub-Adviser's prior
written consent (which consent shall not be unreasonably withheld), the
Adviser and the Trust shall have the non-exclusive and non-transferable
right to use FMR's name and logo in all materials relating to the Funds,
including all prospectuses, proxy statements, reports to shareholders,
sales literature and other written materials prepared for distribution to
shareholders of the Trust or the public. However, prior to printing or
distributing of any materials which refer to FMR, the Adviser shall consult
with the Sub-Adviser and shall furnish to the Sub-Adviser a copy of such
materials. The Sub-Adviser agrees to cooperate with the Adviser and to
review such materials promptly. The Adviser shall not print or distribute
such materials if the Sub-Adviser reasonably objects in writing, within
five (5) business days of its receipt of such copy (or such other time as
may be mutually agreed, which would include longer time periods for review
of the Funds' prospectus and other parts of the registration statement), to
the manner in which its name and logo are to be used.
Upon termination of this Agreement, the Adviser and the Trust shall
forthwith cease to use such name(s), derivatives, logos, trademarks or
service marks or trade names. If the Adviser and the Trust makes any
unauthorized use of FMR's names, derivatives, logos, trademarks or service
marks or trade names, the parties acknowledge that the Sub-Adviser shall
suffer irreparable harm for which monetary damages are inadequate and thus,
the Sub-Adviser shall be entitled to injunctive relief.
18. DELEGATION OF DUTIES. The Sub-Adviser may, at its own expense, delegate any
or all of its duties and responsibilities under this Agreement to its
wholly-owned subsidies, FMR Co., Inc. and Fidelity Investments Money
Management, Inc. (each, a "Sub-Subadviser," collectively, the
"Sub-Subadvisers"), provided that Sub-Adviser remains responsible to the
Adviser and the Trust for the performance of all of its responsibilities
and duties hereunder, and shall have the same liabilities to the Adviser
and/or the Trust for the conduct of the Sub-Subadvisers, or any of its
officers, directors or employees, as if such conduct were Sub-Adviser 's
own or that of the Sub-Adviser 's own officers, directors or employees.
Sub-Adviser will compensate the Sub-Subadvisers for its services to the
Trust and neither the Trust nor the Adviser shall have any liability to the
Sub-Subadvisers for such compensation. Subject to prior notice to the
Adviser, the Sub-Adviser may terminate the services of a Sub-Subadviser for
the Funds and shall, at such time, assume the responsibilities of the
Sub-Subadvisers with respect to the Trust.
19. AMENDMENT OF THIS AGREEMENT. This Agreement and the Confidentiality Letter,
as set forth in Exhibit A which may be amended from time to time,
constitutes the entire agreement between the parties. No provision of this
Agreement may be changed, waived, discharged or terminated orally, but only
by an instrument in writing signed by the party against which enforcement
of the change, waiver, discharge or termination is sought.
20. NOTICE. Any notice under this Agreement shall be in writing, addressed and
delivered or mailed, postage prepaid, to the other party at such address as
designated herein.
(a) To Adviser:
Xxxxxxx National Life Insurance Company
0 Xxxxxxxxx Xxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
(b) To Sub-Adviser:
Fidelity Management & Research Company
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: General Counsel
21. MISCELLANEOUS. The captions in this Agreement are included for convenience
of reference only and in no way define or limit any of the provisions
hereof or otherwise affect their construction or effect. If any provision
of this Agreement is held or made invalid by a court decision, statute,
rule or otherwise, the remainder of this Agreement will be binding upon and
shall inure to the benefit of the parties hereto.
The name "JNL Series Trust" and "Trustees of JNL Series Trust" refer
respectively to the Trust created by, and the Trustees, as trustees but not
individually or personally, acting from time to time under, the Declaration
of Trust, to which reference is hereby made and a copy of which is on file
at the office of the Secretary of State of the Commonwealth of
Massachusetts and elsewhere as required by law, and to any and all
amendments thereto so filed or hereafter filed. The obligations of the "JNL
Series Trust" entered in the name or on behalf thereof by any of the
Trustees, representatives or agents are made not individually but only in
such capacities and are not binding upon any of the Trustees, Shareholders
or representatives or agents of Trust personally, but bind only the assets
of Trust, and persons dealing with the Funds must look solely to the assets
of Trust belonging to such Fund for the enforcement of any claims against
the Trust.
22. APPLICABLE LAW. This Agreement shall be construed in accordance with
applicable federal law and the laws of the State of Michigan, provided that
nothing herein shall be construed in a manner inconsistent with the 1940
Act, the Advisers Act or rules or orders of the SEC thereunder.
23. COUNTERPART SIGNATURES. This Agreement may be executed in several
counterparts, including via facsimile, each of which shall be deemed an
original for all purposes, including judicial proof of the terms hereof,
and all of which together shall constitute and be deemed one and the same
agreement.
IN WITNESS WHEREOF, the Adviser and the Sub-Adviser have caused this
Agreement to be executed as of this 1st day of May, 2004.
XXXXXXX NATIONAL ASSET MANAGEMENT, LLC
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: XXXXXX X. XXXXXXX
-------------------------------
Title: PRESIDENT
---------------------------------------
FIDELITY MANAGEMENT & RESEARCH COMPANY
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------
Name: XXXXXX XXXXXX
---------------------------------------
Title: SENIOR VICE PRESIDENT
SCHEDULE A
(Funds)
JNL/FMR Capital Growth Fund
JNL/FMR Balanced Fund
SCHEDULE B
(Compensation)
JNL/FMR Capital Growth Fund
AVERAGE DAILY NET ASSETS ANNUAL RATE
$0 TO $250 MILLION: .45%
$250 TO $750 MILLION: .40%
OVER $750 MILLION: .35%
JNL/FMR Balanced Fund
AVERAGE DAILY NET ASSETS ANNUAL RATE
$0 TO $250 MILLION: .45%
$250 TO $750 MILLION: .40%
OVER $750 MILLION: .35%
EXHIBIT A
FIDELITY MANAGEMENT & RESEARCH COMPANY
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
[INSERT DATE], 2004
Xxxxxx X. Xxxxx
Xxxxxxx National Asset Management, LLC
Xxx Xxxxxxxxx Xxx
Xxxxxxx, XX 00000
Dear Ladies and Gentlemen:
We, Fidelity Management & Research Company ("Fidelity"), have entered into
an investment advisory agreement with you ("Client") to provide investment
advice to one or more investment portfolios, which are offered through insurance
company separate accounts in connection with variable life insurance contracts
and variable annuity certificates and contracts ("Portfolio" or "Portfolios").
Client will receive certain Fund Holdings Information (as defined below) from
Fidelity. Fidelity and Client desire to evidence by this agreement the manner in
which the Fund Holdings information will be treated. In consideration of the
premises set forth herein, the parties agree as follows:
1. DEFINITION. "Fund Holdings Information" shall mean any information relating
to the underlying securities owned within any Portfolio, which is disclosed
to Client or is otherwise obtained by Client from Fidelity, its affiliates,
agents or representatives during the term of this agreement.
2. DUTY NOT TO USE OR DISCLOSE IMPROPERLY. Client acknowledges and understands
that the Fund Holdings Information is confidential and proprietary, that it
constitutes trade secrets of Fidelity and its affiliates, and that it is of
great value and importance to the success of Fidelity's business and to the
protection of its clients. Client shall not in any manner copy or reproduce
all or any portion of the Fund Holdings Information without the prior
written approval of an officer of Fidelity. Client also agrees that it will
not publicly disclose Fund Holdings Information except as set forth on
Addendum I, as amended by Fidelity from time to time, or as otherwise
required by law. Client acknowledges that it will be unable to publicly
disclose Fund Holdings Information any more frequently than permitted by
the disclosure policies of Fidelity's VIP and Advisor Funds, as such
policies are amended by Fidelity from time to time. Client shall safeguard,
protect and keep secret the Fund Holdings Information, abide by the
security requirements set forth in Addendum II, as amended by the parties
from time to time, and prevent the unauthorized, negligent or inadvertent
use or disclosure thereof. Client shall restrict the dissemination of the
Fund Holdings Information to a limited number of employees or agents on a
need-to-know basis. Client shall inform its employees and agents who have
access to the Fund Holdings Information of the confidential nature of the
information and of this Agreement. Client shall promptly notify Fidelity in
writing of any unauthorized, negligent or inadvertent use or disclosure of
Fund Holdings Information of which it is aware.
3. REMEDIES. Client acknowledges and understands that the use or disclosure of
the Fund Holdings Information in any manner inconsistent with this
agreement will cause Fidelity irreparable damage. Any of Fidelity and its
affiliates shall have the right to (a) equitable and injunctive relief to
prevent such unauthorized, negligent or inadvertent use or disclosure, and
(b) recover the amount of all such damages (including attorneys' fees and
expenses) to Fidelity and its affiliates in connection with such use or
disclosure. In the event that any court of competent jurisdiction
determines that any provision of this agreement is too broad to enforce as
written, that provision shall be construed, modified or reformed to the
extent reasonably necessary to make such provision enforceable. No failure
or delay by Fidelity and its affiliates in exercising any right, power or
privilege under this agreement shall operate as a waiver thereof, nor shall
any single or partial exercise thereof preclude the exercise of any other
right, power or privilege hereunder.
4. EXCLUSIONS. Client shall not have any obligations under this agreement with
respect to any information that is: (a) already known to Client or its
affiliates at the time of the disclosure; (b) publicly known at the time of
the disclosure or becomes publicly known through no wrongful act or failure
of Company; (c) subsequently disclosed to Client or its affiliates on a
non-confidential basis by a third party not having a confidential
relationship with Fidelity which rightfully acquired such information; (d)
communicated to a third party by Client with the express written consent of
Fidelity; or (e) legally compelled to be disclosed pursuant to a subpoena,
summons, order or other judicial or governmental process, provided Client
provides prompt notice of any such subpoena, order, etc. to Fidelity so
that Fidelity or its affiliates will have the opportunity to obtain a
protective order, to the extent practicable.
5. TERMINATION. Either party may terminate this agreement by giving the other
party sixty (60) days written notice. The rights and obligations of the
parties hereunder with respect to the Fund Holdings Information disclosed
or obtained by Client prior to termination shall survive any termination of
this Agreement for a period of three (3) years.
6. COMPLIANCE. Fidelity shall have the right to verify the Company's
compliance with this Agreement. Such verification may consist of a full
operational review of Company's handling and use of Fund Holdings
Information and may be conducted by Fidelity and/or its accountants. The
verification shall be conducted at a mutually agreed upon time, such
agreement not to be unreasonably withheld or delayed.
7. GENERAL. Information provided to the Client is unaudited unless provided as
part of the Fund's Audited Financial Reports. The provisions of this
agreement shall be binding upon each party's successors and assigns and
shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts, excluding its conflict of laws provisions.
SINCERELY, ACCEPTED BY:
FIDELITY MANAGEMENT & RESEARCH COMPANY XXXXXXX NATIONAL ASSET MANAGEMENT, LLC
BY: BY:
XXXXXX XXXXXX
TITLE: SENIOR VICE PRESIDENT TITLE:
DATE: DATE:
~ Addendum I to Confidentiality Agreement ~
Permissible Public Dissemination of Fund Holdings Information
DATA AVAILABLE FOR PUBLIC DISSEMINATION:
DATA FREQUENCY OF PERMISSIBLE DISCLOSURE
Top 10 Holdings* Quarterly, 15 calendar day lag from end of period
Full Holdings** Semi-annually, 45-60 calendar day lag from end of
period
Portfolio Composition*** Monthly, one month lag from end of period
* Top 10 Holdings should be shown in descending order. The aggregate
percentage of the Top 10 must be disclosed. Individual security percentage
must not be disclosed.
** Information provided in Fund Semi-Annual and Fund Annual reports.
*** Portfolio composition data (asset allocation, sector diversification,
industry diversification, portfolio diversification) is permitted for
external disclosure along with the Top Holdings on the 15th calendar day of
the month following each quarter end.
FUNDS DATE ADDED
----- ----------
JNL/FMR Capital Growth Fund [INSERT DATE], 2004
JNL/FMR Balanced Fund [INSERT DATE], 2004
Fidelity Management & Research Company Xxxxxxx National Asset Management, LLC
Signature Signature
Name Xxxxxx Xxxxxx Name
Title Senior Vice President Title
Date Date
~ Addendum II to Confidentiality Agreement ~
Guidelines for Handling Fidelity Fund Information
1. TRANSFER MEDIA AND METHODOLOGY
a) In cases where a network is used, access to the network by parties
other than Fidelity and Client must be eliminated, or access by others
must be strictly controlled.
b) In cases where Client provides courier service for the pickup and
delivery of tapes or other physical media, Client assumes
responsibility for the security of the material.
c) For physical delivery, recipient must sign a receipt to ensure
delivery to the appropriate individual or department.
d) Any indication of tampering should be immediately reported to the
appropriate Fidelity contact.
2. STORAGE AND PROCESSING
a) Once information is received by Client, it must be secured from access
by unauthorized persons.
b) A limited and controlled group of employees of Client should have
access to the information. Only those employees with a need to access
the information as part of the "Permitted Purpose" as described in
Addendum I should be given such access.
3. ARCHIVAL/DISPOSAL
a) In cases where long term storage is required, Client takes
responsibility for the security of the materials while stored
b) Mechanisms for disposal must at minimum provide for destruction of the
media such that information is unreadable. Treatment may include
shredding or appropriate cleaning of magnetic media. Such treatment is
only necessary for information that is still non-public.
4. PUBLICATION
a) Fidelity confidential information provided to Client may be divulged
only in the forms approved by Fidelity, and in the timeframes approved
by Fidelity.
b) Detailed holdings information may be used only in the process of
generating the approved materials (see above). Prior and subsequent to
publication, the detailed information must be secured against
unauthorized access.
c) Information publication must meet Fidelity requirements for time lags.
Prior to publication, all information must be appropriately secured
against unauthorized access.
Fidelity Management & Research Company Xxxxxxx National Asset Management, LLC
Signature: Signature:
Name: Xxxxxx Xxxxxx Name:
Title: Senior Vice President Title:
Date: Date:
