EX-99.23(e)(6)
AMENDED DISTRIBUTION AGREEMENT
This Agreement is executed on December 29, 2008 by and between JNL Investors
Series Trust (the "Trust") and Xxxxxxx National Life Distributors LLC ("JNLD")
and, as provided in Section 15 below, shall become effective on the effective
date of the registration statement of the Trust on Form N-1A (the "Registration
Statement"), as amended from time to time under the Investment Company Act of
1940, as amended (the "1940 Act").'
WHEREAS, the Trust is an open-end, management investment company registered
under the 1940 Act; and
WHEREAS, the Trust is authorized to issue shares of beneficial interest
("Shares") in separate funds (the "Funds") with each such Fund representing
interests in a separate portfolio of securities and other assets; and
WHEREAS, the Trust has adopted a Multiple Class Plan pursuant to Rule 18f-3
under the 1940 Act, whereby a Fund may issue one or more classes of Shares; and
WHEREAS, pursuant to Rule 12b-1 under the 1940 Act, the Trust has adopted a
Distribution Plan for Class A Shares of the Funds, (the "Class A Distribution
Plan") under which, subject to and in accordance with the terms thereof, the
Trust may use assets of Class A Shares of the Funds to reimburse (1) certain
distribution expenses that are intended to result in the sale of such Class A
Shares of the Funds and (2) certain shareholder and administrative service
expenses; and
WHEREAS, pursuant to Rule 12b-1 under the 1940 Act, the Trust has adopted a
Distribution Plan for Class C Shares Funds (the "Class C Distribution Plan"),
under which, subject to and in accordance with the terms thereof, the Trust may
use assets of Class C Shares of the Funds to reimburse (1) certain distribution
expenses that are intended to result in the sale of such Class C Shares of the
Funds and (2) certain shareholder and administrative service expenses; and
WHEREAS, in furtherance of the purposes of Class A Distribution Plan and Class C
Distribution Plan (collectively, the "Distribution Plans"), the Trust wishes to
enter into a distribution agreement with JNLD with respect to the Funds listed
in the current prospectus(es), which may from time to time be amended; and
WHEREAS, the Trust is required pursuant to section 352 of the USA PATRIOT ACT
and regulations of the Department of Treasury thereunder to develop and
implement an anti-money laundering compliance program ("AML Program") reasonably
designed to prevent the Trust from being used to launder money or finance
terrorist activities, including achieving and monitoring compliance with the
applicable requirements of the Bank Secrecy Act, as amended, and implementing
regulations of the Department of Treasury; and
WHEREAS, the Trust has no employees and does not itself conduct any operations
relating to transactions with shareholders that could be the subject of an AML
Program, and conducts such operations solely through its affiliated principal
underwriter, JNLD; and
WHEREAS, JNLD is itself subject to the requirement under section 352 of the USA
PATRIOT ACT to develop and implement an AML Program, and compliance with
applicable regulations of the Department of the Treasury, including but not
limited to the Office of Foreign Assets Control (OFAC) and JNLD has provided
copies of its written policy and procedures to the Trust; and
WHEREAS, JNLD wishes to render the services hereunder to the Trust;
NOW THEREFORE, in consideration of the mutual promises and covenants hereinafter
set forth, the parties hereto agree as follows:
1. APPOINTMENT AND ACCEPTANCE. The Trust hereby appoints JNLD as distributor
of the Shares of the Funds set forth in the current prospectus(es) on the
terms and for the period set forth in this Agreement, and JNLD hereby
accepts such appointment and agrees to render the services and undertake
the duties set forth herein.
2. GENERAL PROVISIONS.
(a) In performing its duties as distributor, JNLD shall act in conformity with
the registration statement of the Trust on Form N-1A (the "Registration
Statement"), as amended from time to time and with any instructions
received from the Board of Trustees of the Trust (the "Board of Trustees"),
the requirements of the Securities Act of 1933, as amended (the "Securities
Act"), the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), the 1940 Act, and all other applicable Federal and State laws and
regulations.
(b) JNLD has appointed a Chief Compliance Officer and has and will operate in
compliance with the applicable requirements of NASD Conduct Rule 3013, and
shall cooperate fully with the Trust and its designated officers and Chief
Compliance Officer in fulfilling the Trust's obligations under Rule 38a-1
under the 1940 Act.
(c) JNLD holds itself available to receive orders for the purchase or
redemption of Shares and shall accept or reject orders to purchase or
redeem such Shares on behalf of the Trust in accordance with the provisions
of the Registration Statement, and shall transmit such orders as are so
accepted to the Trust's transfer agent promptly for processing.
(d) JNLD shall not be obligated to sell any certain number of Shares. However,
the Trust and each Fund retain the right to make direct sales of its Shares
without sales charges consistent with the terms of the then current
prospectus(es) and statement(s) of additional information and applicable
law, and to engage in other legally authorized transactions in its Shares
which do not involve the sale of Shares to the general public. Such
transactions are initiated by the Trust and may include the reorganization
of the Trust or any Funds, and transactions involving the merger or
combination of the Trust or any Funds with other trusts or funds.
(e) Offering Price. Shares shall be offered for sale at a price equivalent to
the net asset value per share of that series and class plus any applicable
percentage of the public offering price as sales commission or as otherwise
set forth in the Trust's then current prospectus(es). The Trust receives
100% of such net asset value. On each business day on which the New York
Stock Exchange is open for business, the Trust shall furnish JNLD with the
net asset value of the Shares of each available series and class which
shall be determined in accordance with the Trust's then effective
prospectus(es). All Shares shall be sold in the manner set forth in the
Trust's then effective prospectus(es) and statement of additional
information (the "SAI"), and in compliance with applicable law.
3. JNLD EXPENSES. During the term of this Agreement, JNLD shall bear all its
expenses incurred in complying with this Agreement including the following
expenses:
(a) costs of sales presentations, preparation and delivery of advertising and
sales literature, and any other marketing efforts by JNLD in connection
with the distribution or sale of Shares;
(b) any compensation paid to employees of JNLD in connection with the
distribution or sale of the Shares; and
(c) development, preparation, printing and mailing of prospectuses, SAIs or
supplements, sales literature, other promotional material describing and/or
relating to the Fund, and reports or communications which the Trust has
prepared for distribution.
Notwithstanding anything in this Agreement to the contrary, JNLD may be
reimbursed for expenses or may pay for expenses incurred under this Agreement to
the extent permitted by the terms of the Distribution Plans.
4. SALE OF SHARES BY JNLD
(a) All orders received by JNLD and transmitted to the Trust shall be subject
to acceptance and confirmation by the Trust.
(b) JNLD shall be entitled to charge a sales commission on the sale or
redemption, as appropriate, of each Fund and Class of Shares in the amount
of any initial, deferred or contingent deferred sales charge as set forth
in Subsection 6 below and the Trust's then effective prospectus(es). JNLD
may allow any sub-agents or dealers such commissions or discounts from and
not exceeding the total sales commission as JNLD shall deem advisable, so
long as any such commissions or discounts are set forth in the Trust's
current prospectus(es) to the extent required by the applicable Federal and
State securities laws. JNLD may also make payments to sub-agents or dealers
from JNLD's own resources, subject to the following conditions: (a) any
such payments shall not create any obligation for or recourse against the
Fund or any series or class, and (b) the terms and conditions of any such
payments are consistent with the Trust's prospectus(es) and applicable
Federal and State securities laws and are disclosed in the Trust's
prospectus(es) or SAI to the extent such laws may require.
5. DISTRIBUTION PLANS
(a) As used herein, the term "12b-1 Fee" means the (1) distribution charges
against Fund Class A Shares assets and Fund Class C Shares assets to
reimburse certain distribution expenses that are intended to result in the
sale of such Class A Shares and Class C Shares of the Funds and (2) service
charges against Fund Class A Shares assets and Fund Class C Shares assets
to compensate intermediaries for providing services or maintaining
shareholder accounts.
(b) In accordance with the terms of Class A Distribution Plan, JNLD shall
provide distribution and other shareholder services for Class A Shares
Funds of the types contemplated under Class A Distribution Plan and
reviewed from time to time by the Board of Trustees with respect to the
Class A Shares of the Funds shown in the current prospectus(es), and may
arrange for and compensate others for providing or assisting in providing
such distribution and shareholder services. The Trust, on behalf of each
Fund of Class A Shares that is subject to the 12b-1 Fee as shown in the
current prospectus(es) shall reimburse JNLD for (1) distribution expenses
incurred in promoting the sale of the Fund's Class A Shares and (2) for
shareholder services at rates of up to the maximum 12b-1 Fee rate per annum
of the average daily net assets attributable to the Class A Shares provided
for in the Class A Distribution Plan as it may be amended from time to
time, and in current amounts as shown in the current prospectus(es). Each
Fund's Class A Shares shall bear exclusively its own costs of such
distribution and service fee reimbursements. Such distribution and service
expenses and fees shall be calculated and accrued daily and paid within
forty-five (45) days of the end of each fiscal quarter of the Fund. In no
event shall such payments exceed JNLD's actual service expenses and fees
for that quarter.
(c) In accordance with the terms of Class C Distribution Plan, JNLD shall
provide distribution and other shareholder services for Class C Shares
Funds of the types contemplated under Class C Distribution Plan and
reviewed from time to time by the Board of Trustees with respect to the
Class C Shares of the Funds shown in the current prospectus(es), and may
arrange for and compensate others for providing or assisting in providing
such distribution and shareholder services. The Trust, on behalf of each
Fund of Class C Shares that is subject to the 12b-1 Fee as shown in the
current prospectus(es) shall reimburse JNLD for (1) distribution expenses
incurred in promoting the sale of the Fund's Class C Shares and (2) for
shareholder services at rates of up to the maximum 12b-1 Fee rate per annum
of the average daily net assets attributable to the Class C Shares provided
for in the Class C Distribution Plan as it may be amended from time to
time, and in current amounts as shown in the current prospectus(es). Each
Fund's Class C Shares shall bear exclusively its own costs of such
distribution and services reimbursements. Such distribution and shareholder
service expenses and fees shall be calculated and accrued daily and paid
within forty-five (45) days of the end of each fiscal quarter of the Fund.
In no event shall such payments exceed JNLD's actual distribution and
service expenses and fees for that quarter.
(d) The Trust's distribution and service fees, 12b-1 Fees, and the current
level of payments to JNLD shall be as set out in Subsection 6 below and as
provided for in the then current prospectuses of the Funds and the Trust,
and shall take effect immediately upon the effectiveness of the
Registration Statements or amendments thereto wherein they are described in
detail. To the extent practicable, the Trust shall provide JNLD with copies
of all filings of the Registration Statements or amendments thereto five
(5) business days prior to filing, but in no event later than the date of
filing with the SEC.
(e) With respect to the sales commission on the redemption of Shares of each
Fund and Class of Shares as provided in Subsection 4(b) above, the Trust
shall cause the Trust's shareholder services agent (the "Transfer Agent")
to withhold from redemption proceeds payable to holders of the Shares all
Contingent Deferred Sales Charge ("CDSC") properly payable by such holders
in accordance with the terms of the Trust's then current prospectus(es) and
SAI(s). Upon receipt of an order for redemption, the Transfer Agent shall
direct the Trust's custodian to transfer such redemption proceeds to a
general trust account. The Trust shall then cause the Transfer Agent to pay
over to JNLD or JNLD's assigns from the general trust account such CDSCs
properly payable by such holders as promptly as possible after the
settlement date for each such redemption of Shares. CDSCs shall be payable
without offset, defense or counterclaim (it being understood that nothing
in this sentence shall be deemed a waiver by us of any claim the Trust may
have against JNLD.) JNLD may direct that the CDSCs payable to JNLD be paid
to any other person, as permitted by applicable law.
(f) As provided in each of the Distribution Plans, consistent with avoiding the
layering of sales charges to investors, and subject to all of the other
terms of the Distribution Plans, the Trust shall bear the distribution and
service expenses, as provided above, of a registered management investment
company in the form of a fund of funds, to the extent that the expenses are
attributable to the fund of funds' sale of its shares and use of sale
proceeds to purchase shares of the Trust.
6. RESERVATION OF RIGHT NOT TO SELL. The Trust reserves the right to refuse at
any time or times to sell any of its Shares for any reason deemed adequate
by it.
7. TERMS AND CONDITIONS OF SALES. Shares shall be offered for sale only in
those jurisdictions where they have been properly registered or are exempt
from registration, and only to those groups of people which the Board may
from time to time determine to be eligible to purchase such Shares.
8. ORDERS AND PAYMENT FOR SHARES. Orders for Shares shall be directed to the
Fund's Transfer Agent, for acceptance on behalf of the Fund. At or prior to
the time of delivery of any of the Trust's Shares, JNLD shall pay or cause
to be paid to the custodian of the Fund's assets, for the Trust's account,
an amount in cash equal to the net asset value of such Shares. Sales of
Shares shall be deemed to be made when and where accepted by the Fund's
Transfer Agent. The Fund's custodian and Transfer Agent shall be identified
in its prospectus(es).
9. PURCHASES FOR JNLD'S OWN ACCOUNT. JNLD shall not purchase Trust Shares for
JNLD's own account for purposes of resale to the public, but JNLD may
purchase Shares for JNLD's own investment account upon JNLD's written
assurance that the purchase is for investment purposes and that the Shares
will not be resold except through redemption by the Trust.
10. SALE OF SHARES TO AFFILIATES. JNLD may sell Trust Shares at net asset value
to certain of its, and the Trust's affiliated persons pursuant to the
applicable provisions of the Federal securities statutes and rules or
regulations thereunder (the "Rules and Regulations"), including Rule 22d-1
under the 1940 Act, as amended from time to time.
11. CONSTRUCTION OF AGREEMENT.
(a) No provision of this Agreement is intended to or shall be construed as
protecting JNLD against any liability to the Trust or to the Trust's
security holders to which JNLD would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance of
its duties under this Agreement.
(b) Terms or words used in the Agreement, which also occur in the Declaration
of Trust or Bylaws of the Trust, shall have the same meaning herein as
given to such terms or words in the Declaration of Trust or Bylaws of the
Trust.
12. CONDUCT OF BUSINESS. Other than the Trust's currently effective
prospectus(es), JNLD shall not issue any sales material or statements
except literature or advertising which conforms to the requirements of
Federal and State securities laws and regulations and which have been
filed, where necessary, with the appropriate regulatory authorities. JNLD
shall make available to the Trust with copies of all such materials prior
to their use and no such material shall be published if the Trust shall
reasonably and promptly object.
JNLD shall comply with the applicable Federal and State laws and
regulations where Trust Shares are offered for sale and conduct JNLD's affairs
with the Trust and with dealers, brokers or investors in accordance with NASD
Conduct Rules.
13. REDEMPTION OR REPURCHASE WITHIN SEVEN DAYS. If Shares are tendered to the
Trust for redemption or repurchase by the Trust within seven (7) business
days after JNLD's acceptance of the original purchase order for such
Shares, JNLD shall revise the dollar amounts relevant to the Class A
Distribution Plan and the Class C Distribution Plan accordingly.
14. EFFECTIVE DATE AND TERMINATION OF THIS AGREEMENT. This Agreement shall
become effective at the date and time that the Trust's Post-Effective
Amendment to its Registration Statement, reflecting the underwriting
arrangements provided by this Agreement, shall become effective under the
Securities Act, and shall, unless terminated as provided herein, continue
in force for two (2) years from that date, and from year to year
thereafter, provided that such continuance for each successive year is
specifically approved in advance at least annually by either the Board of
Trustees or by the vote of a majority (as defined in the 0000 Xxx) of the
outstanding voting securities of the applicable Funds or Class of Shares of
the Trust and, in either event, by the vote of a majority of the Trustees
of the Trust who are not parties to this Agreement or interested persons of
any such party, cast in person at a meeting called for the purpose of
voting upon such approval. As used in the preceding sentence, the words
"interested persons" shall have the meaning set forth in Section 2(a)(19)
of the 1940 Act.
15. This Agreement may be terminated at any time by the Trust, any Fund, or
Class without the payment of any penalty by giving JNLD at least thirty
(30) days' previous written notice of such intention to terminate. This
Agreement may be terminated by JNLD at any time by giving the Trust at
least thirty (30) days' previous written notice of such intention to
terminate.
16. This Agreement shall terminate automatically in the event of its
assignment. As used in the preceding sentence, the word "assignment" shall
have the meaning set forth in Section 2(a)(4) of the 1940 Act.
17. NOTICES. Notices of any kind to be given to JNLD by the Trust shall be in
writing and shall be duly given if mailed, first class postage prepaid, or
delivered to 0000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, XX 00000 or at
such other address or to such individual as shall be specified by JNLD to
the Trust. Notices of any kind to be given to the Trust shall be in writing
and shall be duly given if mailed, first class postage prepaid, or
delivered to Xxx Xxxxxxxxx Xxx, Xxxxxxx, Xxxxxxxx 00000 or at such other
address or to such individual as shall be specified by the Trust.
18. NON-EXCLUSIVITY. The services of JNLD to the Trust under this Agreement are
not to be deemed exclusive, and JNLD shall be free to render similar
services or other services to others so long as its services hereunder are
not impaired thereby.
19. REPORTS. JNLD shall prepare reports for the Board of Trustees on a
quarterly basis or more frequent basis showing such information as shall be
reasonably requested by the Board of Trustees from time to time and in
compliance with the requirements relating to Rule 12b-1, as provided in the
Distribution Plans for each Class of Shares, JNLD shall provide the
distribution expenses reports separately from the service fees-related
reports to the extent that expenses can be so identified.
20. INDEPENDENT CONTRACTOR. JNLD shall for all purposes herein provided be
deemed to be an independent contractor and, unless otherwise expressly
provided or authorized, shall have no authority to act for or represent the
Trust in any way other than as specifically set forth herein. It is
understood and agreed that JNLD, by separate agreement with the Trust, may
also serve the Trust in other capacities.
21. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original.
22. GOVERNING LAW. This Agreement shall be governed by the laws of Illinois,
provided that nothing herein shall be construed in a manner inconsistent
with the 1940 Act, the Exchange Act, the Securities Act, or any rule or
order of the Securities and Exchange Commission or any national or regional
self-regulatory organization, such as the National Association of
Securities Dealers.
23. SEVERABILITY. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby and, to this extent, the
provisions of this Agreement shall be deemed to be severable.
24. AML PROGRAM. Pursuant to section 352 of the USA PATRIOT ACT, JNLD agrees to
implement and operate an "AML" Program on behalf of the Trust (the "Trust
AML Program") as such Program pertains to shareholder transactions effected
through services provided by JNLD. JNLD agrees that the Trust AML Program
will be reasonably designed to prevent the Trust from being used for money
laundering or the financing of terrorist activities and to achieve and
monitor compliance with the applicable requirements of the Bank Secrecy Act
(31 U.S.C. xx.xx. 5311 et seq.) and the implementing regulations of the
Department of Treasury. JNLD represents that in addition to its obligations
to the Trust pursuant to this Agreement it has established and will
maintain a written AML Program as required by NASD Conduct Rule 3011.
25. RECORDS. JNLD agrees to maintain and preserve reasonable records pertaining
to the implementation and operation of the Trust's AML Program. JNLD
consents, upon reasonable notice, (a) to make information and records
regarding the operation of the Trust's AML Program available to the
Securities and Exchange Commission (the "SEC") for review and (b) to make
the Trust's AML Program available for inspection by the SEC and to any
other regulatory agency with jurisdiction over such programs.
26. MISCELLANEOUS. The addition or deletion of a Fund from the scope of this
Agreement reflecting changes that have been formally approved by resolution
by the Board of Trustees will not require approval by the Board of
Trustees.
27. This Agreement shall supersede all Distribution Agreements and Amendments
previously in effect between the parties. As used herein, the terms "net
asset value," "offering price," "investment company," "open-end investment
company," "principal underwriter," "interested person," and "majority of
the outstanding voting securities" shall have the meanings set forth in the
Securities Act or the 1940 act and the Rules and Regulations thereunder and
the term "assignment" shall have the meaning as set forth in the 1940 Act
and the Rules and Regulations thereunder.
28. INDEMNIFICATION. Nothing herein shall be deemed to protect JNLD against any
liability to the Trust or to shareholders to which JNLD would otherwise be
subject by reason of willful misfeasance, bad faith or negligence in the
performance of JNLD's obligations and duties hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first above
written.
ATTEST: JNL INVESTORS SERIES TRUST
By:_____________________________ By:_____________________________
Name: Xxxx X. Xxxxx
Title: President and Chief Executive Officer
ATTEST: XXXXXXX NATIONAL LIFE DISTRIBUTORS LLC
By:_____________________________ By:_____________________________
Name: Xxxxx Xxxxxxxxxx
Title: Executive Vice President
