EX-99.23(h)(40)
12(D)(1) INVESTING AGREEMENT BETWEEN
JNL SERIES TRUST, XXXXXXX NATIONAL ASSET MANAGEMENT, LLC
AND CERTAIN VANGUARD FUNDS
This INVESTING AGREEMENT (the "AGREEMENT"), dated as of January 16, 2007,
is between JNL SERIES TRUST, a business Trust organized under the laws of the
Commonwealth of Massachusetts, on behalf of itself and its separate series
listed on SCHEDULE A (each, an "INVESTING FUND"), severally and not jointly,
Xxxxxxx National Asset Management, LLC, a limited liability company organized
under the laws of Michigan, LLC, and the investment trusts listed on SCHEDULE B
(the "VANGUARD TRUSTS"), on behalf of themselves and their respective series
listed on SCHEDULE B (each, a "VANGUARD FUND"), severally and not jointly.
WHEREAS, the Investing Funds and the Vanguard Funds are open-end management
investment companies that are registered with the U.S. Securities and Exchange
Commission ("SEC") under the Investment Company Act of 1940 (the "1940 ACT");
WHEREAS, Sections 12(d)(1)(A) and (B) of the 1940 Act limit the ability of
an investment company to invest in shares of another investment company, and
therefore limit the ability of an Investing Fund to invest in shares of a
Vanguard Fund;
WHEREAS, the Vanguard Trusts, on behalf of each of the Vanguard Funds, have
obtained from the SEC an order, Investment Company Act Release No. 27386, dated
May 31, 2006 (the "ORDER") that permits the Investing Funds to acquire shares of
the Vanguard Funds in excess of the limits set forth in Sections 12(d)(1)(A) and
(B) in accordance with the representations and conditions in the application
filed to obtain the Order, File No. 812-13147, dated May 17, 2006 (the
"APPLICATION"); and
WHEREAS, the Investing Funds, from time to time, may want to acquire shares
of one or more Vanguard Funds in excess of the limitations of Sections
12(d)(1)(A) and (B) in reliance on the Order.
NOW, THEREFORE, in consideration of the potential benefits to the Investing
Funds and the Vanguard Funds arising out of the investment by the Investing
Funds in the Vanguard Funds, the parties agree as follows:
1. REPRESENTATIONS AND OBLIGATIONS OF THE VANGUARD FUNDS
(a) The Vanguard Funds have provided to the Investing Funds through
their investment adviser and designated agent,Xxxxxxx National Asset
Management, LLC, true copies of: (i) the Application, (ii) the Notice of
Application, Investment Company Act Release No. 27314, dated May 5, 2006
(the "NOTICE") and (iii) the Order.
(b) The Vanguard Funds agree (i) to adhere to the terms and conditions
of the Order and this Agreement and to participate in the proposed
transactions in a manner that addresses the concerns underlying the Order
and (ii) to promptly notify the Investing Funds if a Vanguard Fund fails to
comply with the terms and conditions of the Order or this Agreement.
2. REPRESENTATIONS AND OBLIGATIONS OF THE INVESTING FUNDS
(a) The Investing Funds hereby acknowledge receipt of the Application,
the Notice of Application and the Order.
(b) Pursuant to Condition 8 of the Order, each Investing Funds
represents and warrants that its board of trustees and its investment
adviser understand the terms and conditions of the Order and that each
agrees to fulfill its responsibilities under the Order.
(c) Pursuant to Condition 8 of the Order, each Investing Fund will
promptly notify the Vanguard Funds in writing (which notification may be
via electronic mail to the contact identified in Section 4 below) at such
time as its investment in the Vanguard Funds (i) exceeds any of the limits
in Section 12(d)(1)(A)(i) or thereafter, (ii) falls below any of the limits
in Section 12(d)(1)(A)(i). Each Investing Fund hereby acknowledges and
agrees that it may rely on the Order to invest in shares of the Vanguard
Funds only and not to invest in shares of any other investment company.
(d) Each Investing Fund: (i) agrees to adhere to the terms and
conditions of the Order and this Agreement, and to participate in the
proposed transactions in a manner that addresses the concerns underlying
the Order; (ii) represents that investments in the Vanguard Funds will be
consistent with the investment policies set forth in the Investment Fund's
registration statement; (iii) in the event that it exceeds the 5% or 10%
limitation in Sections 12(d)1(a)(A)(ii) and (iii), agrees to disclose in
its prospectus the unique characteristics of investing in investment
companies, including but not limited to, the expense structure and any
additional expenses of investing in investment companies; and (iv) agrees
to promptly notify the Vanguard Fund if such Investing Fund fails to comply
with the terms and conditions of the Order or this Agreement.
3. INDEMNIFICATION
(a) Xxxxxxx National Asset Management, LLC, agrees to hold harmless,
indemnify and defend the Vanguard Funds, including any principals,
directors or trustees, officers, employees and agents ("VANGUARD AGENTS"),
against and from any and all losses, costs, expenses or liabilities
incurred by or claims or actions ("CLAIMS") asserted against the Vanguard
Fund, including any Vanguard Agents, to the extent such Claims result from
(i) a violation or alleged violation of any provision of this Agreement or
(ii) a violation or alleged violation of the terms and conditions of the
Order, in each case by the Investing Fund, its principals, directors or
trustees, officers, employees, agents, advisors or if applicable,
subadvisors.
(b) The Vanguard Funds, severally and not jointly, agree to hold
harmless, indemnify and defend each Investing Fund, including any
principals, directors or trustees, officers, employees and agents
("INVESTING FUND AGENTS"), against and from any and all losses, costs,
expenses or liabilities incurred by or Claims asserted against an Investing
Fund, including any Investing Fund Agents, to the extent such Claims result
from (i) a violation or alleged violation of any provision of this
Agreement or (ii) a violation or alleged violation of the terms and
conditions of the Order, in each case by the Vanguard Fund, its principals,
directors or trustees, officers, employees, agents or advisors.
(c) Any indemnification pursuant to this Section shall include any
reasonable counsel fees and expenses incurred in connection with
investigating and/or defending the applicable Claims.
4. NOTICES
Except as otherwise noted, 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 Order, shall be in writing and shall be
delivered to the contact identified below by (i) Federal Express or other
comparable overnight courier, (ii) registered or certified mail, postage
prepaid, return receipt requested, or (iii) facsimile with confirmation
during normal business hours. All notices, demands or requests so given
will be deemed given when actually received as evidenced by written
confirmation thereof.
If to an Investing Fund:
Xxxx X. Xxxxx
Xxxxxxx National Asset Management, LLC
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: xxxx.xxxxx@xxxx.xxx
If to the Vanguard Funds:
Xxxxx X. Xxxxxxxxx
000 Xxxxxxxx Xxxxxxxxx, X00
Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxx_xxxxxxxxx@xxxxxxxx.xxx
With a copy to:
Legal Contract Administrator
c/o Jackson National Life Insurance Company
0 Xxxxxxxxx Xxx
Xxxx Xxxx X-00
Xxxxxxx, XX 00000
Fax: (000) 000-0000
5. TERMINATION; GOVERNING LAW, DISPUTE RESOLUTION
(a) This Agreement will continue until terminated in writing by either
party (i) upon sixty (60) days' notice to the other party or (ii)
immediately if the other party breaches any of its material obligations
under this Agreement and such breach is not cured within fifteen (15) days
following delivery of written notice of such breach.
(b) This Agreement will be governed by Pennsylvania law without regard
to choice of law principles.
(c) Any dispute arising out of or related to this Agreement which
cannot be resolved through discussions between the parties shall be settled
by binding arbitration before a panel of three arbitrators in accordance
with and subject to the Commercial Arbitration Rules of the American
Arbitration Association then applicable. Unless otherwise agreed upon by
the parties, the arbitration hearings will be held in Philadelphia,
Pennsylvania.
6. MISCELLANEOUS
(a) This Agreement may not be assigned by either party without the
prior written consent of the other. In the event either party assigns this
Agreement to a third party as provided in this Section, such third party
shall be bound by the terms and conditions of this Agreement applicable to
the assigning party. Any assignment in contravention of this Section shall
be null and void.
(b) Except as expressly set forth herein, nothing in this Agreement
shall confer any rights upon any person or entity other than the parties
hereto and their respective successors and permitted assigns.
(c) With the exception of SCHEDULES A AND B, no amendment,
modification, or supplement of any provision of this Agreement will be
valid or effective unless made in writing and signed by a duly authorized
representative of each party.
(d) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original and all of which together shall
constitute one and the same instrument. This Agreement shall become binding
when any two or more counterparts thereof, individually or taken together,
bear the signatures of both parties hereto. For purposes hereof, a
facsimile copy of this Agreement, including the signature pages hereto,
shall be deemed an original.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
JNL Series Trust, on behalf of itself and
each Investing Fund listed on Schedule A
________________________________
Print Name: Xxxx X. Xxxxx
Title: President, and Chief Executive Officer
Xxxxxxx National Asset Management, LLC
___________________________________
Print Name: Xxxx X. Xxxxx
Title: President
EACH OF THE VANGUARD TRUSTS, on behalf of
itself and the Vanguard Funds listed on Schedule B
VANGUARD INDEX FUNDS
VANGUARD INTERNATIONAL EQUITY INDEX FUNDS
VANGUARD SPECIALIZED FUNDS
VANGUARD WHITEHALL FUNDS
VANGUARD WORLD FUNDS
________________________________________
Print Name:
Title:
SCHEDULE A
LIST OF INVESTING 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
SCHEDULE B
LIST OF VANGUARD TRUSTS AND VANGUARD FUNDS
VANGUARD INDEX FUNDS
Vanguard Extended Market Index Fund
Vanguard Growth Index Fund
Vanguard Mid-Cap Index Fund
Vanguard Mid-Cap Growth Index Fund
Vanguard Mid-Cap Value Index Fund
Vanguard Small-Cap Index Fund
Vanguard Small-Cap Growth Index Fund
Vanguard Small-Cap Value Index Fund
Vanguard Total Stock Market Index Fund
Vanguard Value Index Fund
Vanguard Large-Cap Index Fund
VANGUARD INTERNATIONAL EQUITY INDEX FUNDS
Vanguard Emerging Markets Stock Index Fund
Vanguard European Stock Index Fund
Vanguard Pacific Stock Index Fund
VANGUARD SPECIALIZED FUNDS
Vanguard REIT Index Fund
Vanguard Dividend Appreciation Index Fund
VANGUARD WHITEHALL FUNDS
Vanguard High Dividend Yield Index Fund
VANGUARD WORLD FUNDS
Vanguard Consumer Discretionary Index Fund
Vanguard Consumer Staples Index Fund
Vanguard Energy Index Fund
Vanguard Financials Index Fund
Vanguard Health Care Index Fund
Vanguard Industrials Index Fund
Vanguard Information Technology Index Fund
Vanguard Materials Index Fund
Vanguard Telecommunication Services Index Fund
Vanguard Utilities Index Fund
