EX 99.23(h)(46)
POWERSHARES EXCHANGE-TRADED FUND TRUST
PURCHASING FUND AGREEMENT
This Purchasing Fund Agreement (the "Agreement") is made as of the date set
forth below between the PowerShares Exchange-Traded Fund Trust (the "Trust"),
JNL Series Trust, Each of the Funds Listed on Schedule A, Severally and Not
Jointly, on Behalf of Itself or Each of Its Series (the "Purchasing Fund") and
Xxxxxxx National Asset Management, LLC, a limited liability company organized
under the laws of Michigan, LLC.
WHEREAS, Section 12(d)(1)(A) ("Section 12(d)(1)(A)") of the Investment
Company Act of 1940, as amended (the "1940 Act"), limits investment by an
investment company, as defined in the 1940 Act, and affiliates of such company,
in any other investment company that is registered under the 1940 Act; and
WHEREAS, the Trust is an investment company registered as such under the
1940 Act; and is organized as a series fund with multiple separate series (each
such series an "ETF" and collectively the "ETFs"); and
WHEREAS, the Purchasing Fund is a registered investment company or
otherwise meets the definition of "investment company" under the 1940 Act; and
WHEREAS, the Securities and Exchange Commission (the "Commission") has
granted an order (Rel. No. 1C-27743) exempting the Trust and certain investment
companies investing in the Trust from the limits of Section 12(d)(1)(A) (such
order and the application therefore together, the "Order"); and
WHEREAS, in reliance on the Order, the Purchasing Fund may acquire shares
in the ETFs ("Shares") in excess of the limits imposed by Section 12(d)(1)(A);
and
WHEREAS, pursuant to the conditions set forth in the Order, each Purchasing
Fund must enter into a written agreement with the Trust prior to acquiring
Shares in excess of the limits imposed by Section 12(d)(1)(A);
NOW, THEREFORE, the Trust and the Purchasing Fund agree as follows:
1. Capitalized terms used and not otherwise defined herein shall have the
meanings assigned such terms in the Order.
2. The members of the Purchasing Fund Adviser Group will not control
(individually or in the aggregate) an ETF within the meaning of Section 2(a)(9)
of the 1940 Act. The members of a Purchasing Fund Subadviser Group will not
control (individually or in the aggregate) an ETF within the meaning of Section
2(a)(9) of the 1940 Act. If, as a result of a decrease in the outstanding voting
securities of an ETF, the Purchasing Fund Adviser Group or the Purchasing Fund
Subadviser Group, each in the aggregate, becomes a holder of more than 25
percent of the outstanding voting securities of an ETF, it will vote its shares
of the ETF in the same proportion as the vote of all other holders of the ETF's
shares. This condition does not apply to the Purchasing Fund Subadviser Group
with respect to an ETF for which the Purchasing Fund Subadviser or a person
controlling, controlled by, or under common control with the Purchasing Fund
Subadviser acts as the investment adviser within the meaning of Section
2(a)(20)(A) of the 1940 Act (in the case of an open-end exchange-traded fund) or
as the sponsor (in the case of a UIT ETF).
For purposes of this Agreement, the "Purchasing Fund Adviser Group" consists of
the Purchasing Fund investment adviser or manager, sponsor, and/or depositor, as
applicable, and any person controlling, controlled by, or under common control
with the Purchasing Fund's investment adviser or manager, sponsor and/or
depositor, and any investment company or any issuer that would be an investment
company but for Sections 3(c)(1) or 3(c)(7) of the 1940 Act that is advised by
the Purchasing Fund's adviser or manager or sponsored by the Purchasing Fund's
sponsor and/or depositor, or any person controlling, controlled by, or under
common control with the Purchasing Fund's investment adviser or manager,
sponsor, and/or depositor, as applicable. For purposes of this Agreement, a
"Purchasing Fund Subadviser Group" consists of any subadviser to such Purchasing
Fund, any person controlling, controlled by, or under common control with such
subadviser, and any investment company or issuer that would be an investment
company but for Sections 3(c)(1) or 3(c)(7) of the 1940 Act (or portion of such
investment company or issuer) advised or sponsored by such subadviser or any
person controlling, controlled by or under common control with such subadviser.
3. The Purchasing Fund Adviser, or Trustee or Sponsor of the Purchasing Fund,
will waive fees otherwise payable to it by the Purchasing Fund in an amount at
least equal to any compensation (including fees received pursuant to any plan
adopted by an ETF under Rule 12b-1 under the 0000 Xxx) received from an ETF by
the Purchasing Fund Adviser, Trustee or Sponsor, or an affiliated person of the
Purchasing Fund Adviser, Trustee or Sponsor, other than any advisory fees paid
to the Purchasing Fund Adviser, Trustee, or Sponsor or its affiliated person by
the ETF, in connection with the investment by the Purchasing Fund in the ETF.
Any Purchasing Fund Subadviser will waive fees otherwise payable to the
Purchasing Fund Subadviser, directly or indirectly, by the Purchasing Fund in an
amount at least equal to any compensation received from an ETF by the Purchasing
Fund Subadviser, or an affiliated person of the Purchasing Fund Subadviser,
other than any advisory fees paid to the Purchasing Fund Subadviser or its
affiliated person by the ETF, in connection with any investment by the
Purchasing Fund in the ETF made at the direction of the Purchasing Fund
Subadviser. In the event that the Purchasing Fund Subadviser waives fees, the
benefit of the waiver will be passed through to the Purchasing Fund.
4. Before approving any advisory contract under Section 15 of the 1940 Act, the
board of directors or trustees of the Purchasing Fund, including a majority of
the disinterested directors or trustees, will find that the advisory fees
charged under such advisory contract are based on services provided that will be
in addition to, rather than duplicative of, the services provided under the
advisory contract(s) of an ETF in which the Purchasing Fund may invest. These
findings and their basis will be recorded fully in the minute books of the
Purchasing Fund.
5. The Purchasing Fund or any Purchasing Fund Affiliate will not cause any
existing or potential investment by the Purchasing Fund in an ETF to influence
the terms of any services or transactions between the Purchasing Fund or
Purchasing Fund Affiliate and the ETF or ETF Affiliate.
For purposes of this Agreement, the term "Purchasing Fund Affiliate" includes an
investment adviser, sub-adviser, sponsor, promoter, and principal underwriter of
a Purchasing Fund, and any person controlling, controlled by, or under common
control with any of those entities within the meaning of Section 2(a)(9) of the
1940 Act.
6. If the Purchasing Fund is a management company, as defined in Section 4 of
the 1940 Act (a "Management Company"), before the Purchasing Fund relies on the
Order, the board of directors or trustees of the Purchasing Fund, including a
majority of the disinterested directors or trustees, will adopt procedures
reasonably designed to assure that the Purchasing Fund Adviser and any
Purchasing Fund Subadviser are conducting the investment program of the
Purchasing Fund without taking into account any consideration received by the
Purchasing Fund or a Purchasing Fund Affiliate from an ETF or an affiliate of an
ETF in connection with any services or transactions. Proper evidence of such
approval, including but not limited to, certified resolutions of the Board as to
the foregoing approval, shall be provided to the Trust upon request.
7. No Purchasing Fund or Purchasing Fund Affiliate will cause an ETF to purchase
a security in any Affiliated Underwriting, except to the extent that it is
acting in its capacity as an investment adviser to the Trust. Nothing in this
Agreement, however, shall limit the authority of the Trust to accept and satisfy
in-kind creation orders and redemption requests from a Purchasing Fund or an
Underwriting Affiliate that is also an Authorized Participant in the ordinary
course of business.
For purposes of this Agreement, the term "Affiliated Underwriting" means an
offering of Securities during the existence of an underwriting or selling
syndicate of which a principal underwriter is an Underwriting Affiliate. For
purposes of this Agreement, the term "Underwriting Affiliate" means a principal
underwriter in any underwriting or selling syndicate that is an officer,
director, member of an advisory board, investment adviser, subadviser, employee
or sponsor of the Purchasing Fund, or a person of which any such officer,
director, member of an advisory board, investment adviser, subadviser, employee
or sponsor is an affiliated person. An Underwriting Affiliate does not include
any person whose relationship to the Trust is covered by Section 10(f) of the
1940 Act.
8. The Purchasing Fund will not acquire Shares in excess of the limits of
Section 12(d)(1)(A) unless and until the Purchasing Fund and the Trust have
executed this Agreement and complied with the terms and conditions hereof. At
the time of its investment in Shares of an ETF in excess of the limit in Section
12(d)(1)(A)(i), the Purchasing Fund will notify the Trust of the investment. At
such time, the Purchasing Fund will also transmit to the Trust a list of the
names of each Purchasing Fund Affiliate and Underwriting Affiliate. The
Purchasing Fund will notify the Trust of any changes to the list of names as
soon as reasonably practicable after the change occurs.
9. The Purchasing Fund represents and warrants to the Trust that the Purchasing
Fund's board of directors or trustees, trustee, investment adviser or manager,
sponsor, and/or depositor, as applicable, have received a copy of and have read
and understand the terms and conditions of the Order, and agree to fulfill their
responsibilities under the Order. The Purchasing Fund further represents and
warrants to the Trust that the foregoing persons understand that the Order
pertains only to investments in the Trust and not to investments in any other
investment company. The Purchasing Fund understands that this Agreement is
entered into in furtherance of, and pursuant to, the Order, and agrees that this
Agreement shall be interpreted consistently therewith.
10. The Purchasing Fund agrees that it has sole responsibility under the Order
and this Agreement to monitor the limits of Section 12(d)(1)(A) as they pertain
to its acquisition of Shares.
11. The Purchasing Fund represents and warrants to the Trust that, if it is a
Management Company, its investment adviser is registered as an investment
adviser under the Investment Advisers Act of 1940, as amended, or is exempt from
such registration.
12. The Purchasing Fund represents and warrants to the Trust that, if it
purchases Creation Units directly from the Trust, it will do so only in
compliance with the Purchasing Fund's investment restrictions and only if so
doing is consistent with the investment policies set forth in the Purchasing
Fund's registration statement under the Securities Act of 1933.
13. The Purchasing Fund and the Trust agree that each shall preserve a copy of
this Agreement, the list of Purchasing Fund Affiliates and Underwriting
Affiliates and a copy of the Order for the duration of the investment and for a
period of not less than six (6) years thereafter, the first two years shall be
maintained by the Purchasing Fund and the Trust in an easily accessible place.
14. The Purchasing Fund represents and warrants to the Trust that it understands
and complies with the National Association of Securities Dealers, Inc. Conduct
Rule 2830 and that any sales charge and/or service fees (other than customary
brokerage fees) charged with respect to shares in the Purchasing Fund will not
exceed the limits applicable to a fund of funds as set forth in that rule.
15. If it is acquiring Shares in excess of either (i) the 5% limit of Section
12(d)(1)(A)(ii) of the 1940 Act or (ii) the 10% limit of Section
12(d)(1)(A)(iii) of the 1940 Act, the Purchasing Fund represents and warrants to
the Trust, and agrees, that its prospectus will disclose in "plain English" the
fact that it may invest in exchange-traded funds and the unique characteristics
of a fund that invests in exchange-traded funds, including but not limited to
the expense structure and any additional expenses of investing in
exchange-traded funds.
16. Any of the provisions of this Agreement notwithstanding, the Purchasing Fund
represents and warrants to the Trust that it operates, and will continue to
operate, in compliance with the 1940 Act, and the Commission's rules and
regulations thereunder. The Purchasing Fund agrees that the Trust is entitled to
rely on the representations contained in this Agreement and that the Trust has
no independent duty to monitor the Purchasing Fund's compliance with this
Agreement, the Order, the 1940 Act, or the Commission's rules and regulations
thereunder.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
30th day of April, 2007.
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
ACCEPTED:
POWERSHARES EXCHANGE-TRADED FUND TRUST
By:
__________________________________________________
Name:
__________________________________________________
Title:
__________________________________________________
SCHEDULE A
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
