EX 99.23(h)(45)
WISDOMTREE TRUST
ACQUIRING FUND AGREEMENT
This Acquiring Fund Agreement ("Agreement") is made as of this 30th day of
April, 2007, by and between WisdomTree Trust (the "Trust"), on behalf of each of
its separate series (each a "Fund") and JNL Series Trust, each of the Funds
Listed on Schedule A, severally and not jointly, on behalf of itself or each of
its Series (each, an "Investing Fund"), and Xxxxxxx National Asset Management,
LLC, a limited liability company organized under the laws of Michigan.
WHEREAS, the Trust is an investment company registered as such under the 1940
Act and has established separate Funds, each Fund having its own assets and
investment policies; and
WHEREAS, Investing Fund is registered under the 1940 Act as an open-end
management investment company and has established several separate investment
portfolios (each an "Investment Portfolio"), with each Investment Portfolio
having its own assets and investment policies; and
WHEREAS, Section 12(d)(1)(A) ("Section 12(d)(1)(A)") of the Investment Company
Act of 1940, as amended ("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, Investing Fund desires that each Investment Portfolio listed in
SCHEDULE A attached hereto, as may be amended from time to time (each an
"Acquiring Fund" and collectively, the "Acquiring Funds"), be permitted to
acquire shares of each Fund ("Shares") in excess of the limits imposed by
Section 12(d)(1)(A); and
WHEREAS, the Trust has received an order from the Securities and Exchange
Commission (Rel. No. IC-27324, June 12, 2006) (the "Order") exempting the Trust
and certain registered investment companies acquiring Shares of each Fund of the
Trust from the limits of Section 12(d)(1)(A); and
WHEREAS, in reliance on the Order, each Acquiring Fund may acquire Shares in
excess of the limits imposed by Section 12(d)(1)(A).
NOW, THEREFORE, the Trust and each Acquiring Fund agree as follows:
Section 1. TERMS OF AGREEMENT. The Order and the notice relating to the Order
are attached hereto as part of Schedule B. The Order, notice and the related
application for an Order (the "Application") are collectively referred to as the
"Order." The portion of the Application relating to the relief from Section
12(d)(1)(A) is available upon request. Capitalized terms used and not otherwise
defined herein shall have the meanings assigned such terms in the Order.
(a) As required by CONDITION 8 of the Order, the members of an Acquiring
Fund's Advisory Group will not control (i.e., hold or beneficially
own) 25 percent or more of the outstanding Shares of a Fund. The
members of an Acquiring Fund's Advisory Group will not control
(individually or in the aggregate) a Fund within the meaning of
Section 2(a)(9) of the Act. The members of an Acquiring Fund's
Subadvisory Group will not control (individually or in the aggregate)
a Fund within the meaning of Section 2(a)(9) of the Act. If as a
result of a decrease in the outstanding Shares of a Fund, an Acquiring
Fund's Advisory Group or an Acquiring Fund's Subadvisory Group, each
in the aggregate, becomes a holder of more than 25 percent of the
outstanding Shares of a Fund, it will vote its Shares in the same
proportion as the vote of all other Shareholders of the Fund's Shares.
This condition will not apply to the Acquiring Fund's Subadvisory
Group with respect to a Fund for which the Acquiring Fund Subadvisor
or a person controlling, controlled by or under common control with
the Acquiring Fund Subadvisor acts as the investment advisor within
the meaning of section 2(a)(20)(A) of the Act.
(b) As required by CONDITION 9 of the Order, no Acquiring Fund or
Acquiring Fund Affiliate will cause any existing or potential
investment by the Acquiring Fund in a Fund to influence the terms of
any service or transactions between the Acquiring Fund or an Acquiring
Fund Affiliate and the Fund or a Fund Affiliate.
(c) As required by CONDITION 10 of the Order, the board of directors or
trustees of an Acquiring Management Company, including a majority of
the independent directors or trustees, will adopt procedures
reasonably designed to assure that the Acquiring Fund Advisor and any
Acquiring Fund Subadvisor are conducting the investment program of the
Acquiring Management Company without taking into account any
consideration received by the Acquiring Management Company or an
Acquiring Fund Affiliate from a Fund or a Fund Affiliate in connection
with any services or transactions.
(d) As required by CONDITION 12 of the Order, no Acquiring Fund or
Acquiring Fund Affiliate (except to the extent it is acting in its
capacity as an investment adviser to a Fund) will cause the Fund to
purchase a security in any Affiliated Underwriting.
(e) As required by CONDITION 15 of the Order, before investing in a Fund
in excess of the limits in section 12(d)(1)(A), each Acquiring Fund
and the Fund will execute an Acquiring Fund Agreement stating, without
limitation, that their boards of directors or trustees and their
investment advisers, or Sponsor and Trustee, as applicable, understand
the terms and conditions of the order, and agree to fulfill their
responsibilities under the order. At the time of its investment in
Shares of a Fund in excess of the limit in section 12(d)(1)(A)(i), an
Acquiring Fund will notify the Fund of the investment. At such time,
the Acquiring Fund will also transmit to the Fund a list of the names
of each Acquiring Fund Affiliate and Underwriting Affiliate. The
Acquiring Fund will notify the Fund of any changes to the list of the
names as soon as reasonably practicable after a change occurs. The
Fund and the Acquiring Fund will maintain and preserve a copy of the
order, the agreement, and the list with any updated information for
the duration of the investment and for a period of not less than six
years thereafter, the first two years in an easily accessible place.
(f) As required by CONDITION 16 of the Order, the Acquiring Fund Advisor,
Sponsor or Trustee, as applicable, will waive fees otherwise payable
to it by the Acquiring Fund in an amount at least equal to any
compensation (including fees received pursuant to any plan adopted by
a Fund under rule 12b-1 under the Act) received from a Fund by the
Acquiring Fund Advisor, Sponsor or Trustee, or an affiliated person of
the Acquiring Fund Advisor, Sponsor or Trustee, other than any
advisory fees paid to the Acquiring Fund Advisor, Sponsor or Trustee,
or its affiliated person by the Fund, in connection with the
investment by the Acquiring Fund in the Fund. Any Acquiring Fund
Subadvisor will waive fees otherwise payable to the Acquiring Fund
Subadvisor, directly or indirectly, by the Acquiring Management
Company in an amount at least equal to any compensation received from
a Fund by the Acquiring Fund Subadvisor, or an affiliated person of
the Acquiring Fund Subadvisor, other than any advisory fees paid to
the Acquiring Fund Subadvisor or its affiliated person by the Fund, in
connection with the investment by the Acquiring Management Company in
the Fund made at the direction of the Acquiring Fund Subadvisor. In
the event that the Acquiring Fund Subadvisor waives fees, the benefit
of the waiver will be passed through the Acquiring Management Company.
(g) As required by CONDITION 17 of the Order, any sales charges and/or
service fees charged with respect to shares of an Acquiring Fund will
not exceed the limits applicable to a fund of funds as set forth in
Conduct Rule 2830 of the National Association of Securities Dealers,
Inc.
(h) As required by CONDITION 19 of the Order, before approving any
investment advisory contract under Section 15 of the Act, the board of
directors or trustees of each Acquiring Management Company, including
a majority of the independent directors or trustees, will find that
the advisory fees charged under the advisory contract are based on
services provided that will be in addition to, rather than duplicative
of, services provided under the advisory contract(s) of any Fund in
which the Acquiring Management Company may invest. These findings and
the basis upon which they are made will be recorded fully in the
minute books of the appropriate Acquiring Management Company.
Section 2. REPRESENTATIONS AND WARRANTIES OF EACH ACQUIRING FUND.
Each Acquiring Fund represents and warrants to the Trust that it will comply
with the Order and will promptly notify the Trust if it fails to do so.
Specifically, each Acquiring Fund represents and warrants:
(a) Per the representation set forth on page 16 of the SEC Notice, that if
an Acquiring Fund 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.
(b) Per the representation set forth of page 20 of the SEC Notice, that if
an Acquiring Fund 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, such Acquiring Fund
represents, warrants and agrees, that its prospectus will disclose in
"plain English" the fact that it does or may invest in exchange-traded
funds such as the Funds, the unique characteristics of a fund that
invests in ETFs, and the expenses of so doing.
(c) Per the representation set forth in the Application (the relevant
portion of which is attached as part of Schedule B), each Acquiring
Fund operates, and will continue to operate, in compliance with the
1940 Act, and the Commission's rules and regulations thereunder.
(d) Per the representation set forth in the Application (the relevant
portion of which is attached as part of Schedule B), if an Acquiring
Fund purchases Shares directly from the Trust, that it will do so only
in compliance with such Acquiring Fund's investment restrictions and
only if so doing is consistent with the investment policies set forth
in such Acquiring Fund's registration statement under the Securities
Act of 1933.
(e) It will promptly notify the Trust in writing of any purchase or
acquisition of Shares that causes the Acquiring Fund to (i) hold 5% or
more of a Fund's outstanding voting securities, and (ii) 10% or more
of a Fund's outstanding voting securities.
(f) To the extent an Acquiring Fund holds 5% or more of the total
outstanding voting securities of a Fund in reliance on the Order, the
Acquiring Fund agrees to vote its Shares in the same proportion as the
vote of all other holders of Shares of such Fund.
Section 3. REPRESENTATION AND WARRANTIES OF THE TRUST.
The Trust represents and warrants to the Acquiring Fund that it will provide the
Acquiring Fund with a copy of any amendments to the Order, that it will comply
with the terms and conditions of the Order with respect to the Acquiring Fund,
and that it will promptly notify the Acquiring Fund if it fails to comply with
the Order with respect to the Acquiring Fund.
Section 4. MISCELLANEOUS.
(a) The terms and provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors, representatives, heirs and estate, as applicable. This
Agreement shall not assignable. Any purported assignment in violation
of the immediately preceding sentence shall be void and of no effect.
(b) This Agreement may be executed in two counterparts, all of which shall
be considered one and the same agreement and shall become effective
when one or more counterparts have been signed by each of the parties
and delivered (by facsimile or otherwise) to the other party, it being
understood that all parties need not sign the same counterpart. Any
counterpart or other signature hereupon delivered by facsimile shall
be deemed for all purposes as constituting good and valid execution
and delivery of this Agreement by the party delivering it.
(c) This Agreement will be governed by Delaware law without regard to
choice of law principles.
(d) This Agreement will continue until terminated in writing by either
party upon thirty (30) days written notice to the other. Provided,
however, that section 2(f), shall survive termination of this
Agreement.
(e) All notices, including any information that either party is required
to deliver to the other by the Order or this Agreement. Shall be in
writing and shall be delivered to the address set forth below (which
may be changed from time to time upon written notice to the other
party).
IF TO THE ACQUIRING FUND:
Xxxx X.Xxxxx
c/o Jackson National Asset Management, LLC
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Email: XXXX.XXXXX@XXXX.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
IF TO THE TRUST:
Legal Department
WisdomTree Investments, Inc.
00 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
(SIGNATURE PAGE IMMEDIATELY FOLLOWS)
IN WITNESS WHEREOF, the parties have duly executed this Acquiring Fund Agreement
as of the date first set forth above.
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
______________________________________________
Print Name: Xxxx X. Xxxxx
Title: President
WISDOMTREE TRUST
By:
______________________________________________
Name:
______________________________________________
Title:
______________________________________________
SCHEDULE A
TO
WISDOMTREE TRUST
ACQUIRING FUND AGREEMENT
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
TO
WISDOMTREE TRUST
ACQUIRING FUND AGREEMENT
1. Copy of SEC Order IC-27324 dated June 12, 2006,
relating to the WisdomTree Funds;
2. Copy of SEC Notice dated May 18, 2006; and
3. Copy of Relevant Portions of the WisdomTree Application.
