AMENDED AND RESTATED
INVESTMENT SUB-ADVISORY AGREEMENT
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This AGREEMENT is effective as of the 2nd day of May, 2005, and Amended
and Restated effective as of the 1st day of December, 2012, by and between
XXXXXXX NATIONAL ASSET MANAGEMENT, LLC, a Michigan limited liability company and
registered investment adviser ("Adviser"), and FRANKLIN ADVISORY SERVICES, LLC,
a Delaware limited liability company 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 effective as of January 31, 2001, Amended and
Restated as of the 28th day of February, 2012, and further Amended and Restated
as of the 1st day of December, 2012 ("Management Agreement") 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").
During the term of this Agreement, the Adviser agrees to furnish the
Sub-Adviser at its principal office all proxy statements, reports to
shareholders, sales literature or other materials prepared for
distribution to shareholders of each Fund, prospects of each Fund or the
public that refer to the Fund in any way, prior to the use thereof, and
the Adviser shall not use any such materials if the Sub-Adviser reasonably
objects in writing within five business days (or such other period as may
be mutually agreed) after receipt thereof. The Sub-Adviser's right to
object to such materials is limited to the portions of such materials that
expressly relate to the Sub-Adviser, its services and its clients. The
Adviser agrees to use its reasonable best efforts to ensure that materials
prepared by its employees or agents or its affiliates that refer to the
Sub-Adviser or its clients in any way are consistent with those materials
previously approved by the Sub-Adviser as referenced in the first sentence
of this paragraph. Sales literature may be furnished to the Sub-Adviser by
e-mail, first class or overnight mail, facsimile transmission equipment or
hand delivery.
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 comply 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 officers and employees
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. Sub-Adviser will report to the Board
of Trustees and to Adviser with respect to the implementation of such
program. Sub-Adviser, solely with respect to the assets of the Funds which
are under its management pursuant to this Agreement, and based on
information obtained from the Funds' administrator, custodian and other
service providers, shall take reasonable steps to comply with 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.
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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 follow the
procedures specified in Treas. Reg. Section 1.817-5(a)(2) and Revenue
Procedure 92-25 (or its successor) to request relief from the Commissioner
of Internal Revenue Service, and that in such an event Adviser shall work
in conjunction with Sub-Adviser in the preparation of any request for
relief or closing agreement and, to the extent that Adviser is seeking
indemnification under Section 11 hereof, no filings or agreements shall be
made with the Commissioner of Internal Revenue Service without the prior
written approval of Sub-Adviser.
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 use the same skill and care in providing such services as it
uses in providing services to fiduciary accounts for which it has
investment responsibilities;
b) will comply with all applicable Rules and Regulations of the SEC in
all material respects and in addition will conduct its activities
under this Agreement in accordance with any applicable regulations
of any governmental authority pertaining to its investment advisory
activities;
c) 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 appropriate persons available for the purpose of
reviewing with representatives of Adviser and the Board of Trustees
on a regular basis at reasonable times 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;
d) will provide to the 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;
e) will prepare and maintain such books and records 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;
f) 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;
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g) will act upon reasonable instructions from Adviser;
h) 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,
regulation or upon request by a regulator or auditor of Sub-Adviser;
i) will vote proxies received in connection with securities held by the
Funds consistent with its fiduciary duties hereunder;
j) may not consult with any other sub-adviser of the Trust concerning
transactions in securities or other assets for any investment
portfolio of the Trusts, including the Funds, except that such
consultations are permitted between the current and successor
sub-advisers of the Funds in order to effect an orderly transition
of sub-advisory duties so long as such consultations are not
concerning transactions prohibited by Section 17(a) of the 1940 Act;
and
k) The Sub-Adviser agrees to invest the Fund's assets in accordance
with the provisions of Commodity Futures Trading Commission ("CFTC")
Rule 4.5(2)(c)(iii)(A) or (B) under the Commodities Exchange Act
("CEA").
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.
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 futures agreements entered into by the Funds to the Adviser, if
applicable. It is the Sub-Adviser's general policy in selecting a broker
to effect a particular transaction to seek to obtain "best execution",
which means prompt and efficient execution of the transaction at the best
obtainable price with payment of commissions which are reasonable in
relation to the value of the brokerage services provided by the broker.
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Consistent with this policy, the Sub-Adviser, in selecting broker-dealers
and negotiating commission rates, will take all relevant factors into
consideration, including, but not limited to: the best price available;
the reliability, integrity and financial condition of the broker-dealer;
the size of and difficulty in executing the order; the broker's execution
capabilities and any research provided by the broker that aids the
Sub-Adviser's investment decision-making process. Subject to such policies
and procedures as the Trust's Board of Trustees may determine, 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 brokerage placements
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 therefore.
6. EXPENSES. The Sub-Adviser shall bear all expenses incurred by it in
connection with the performance of its services under this Agreement. Each
Fund will bear certain other expenses to be incurred in its operation,
including, but not limited to, investment advisory fees, and
administration fees; fees for necessary professional and brokerage
services; costs relating to local administration of securities; and fees
for any pricing services. All other expenses not specifically assumed by
the Sub-Adviser hereunder or by the Adviser under the Management Agreement
are borne by the applicable Fund or the Trust.
7. BOOKS AND RECORDS. In compliance with the requirements of Rule 31a-3 under
the 1940 Act, the Sub-Adviser hereby agrees that all records which it
maintains for the Trust shall be available for inspection by the Trust and
Adviser upon their reasonable request and agrees to provide the Trust with
copies of any of such records upon the Trust's request. 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. The Adviser shall
maintain all books and records not related to the 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 on the average daily net assets in the
Funds in accordance with Schedule B hereto.
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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. 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. Adviser and the Sub-Adviser each agree to indemnify the
other party (and each such party's affiliates, employees, directors and
officers) against any claim, damages, loss or liability (including
reasonable attorneys' fees) arising out of any third party claims brought
against an indemnified party that are found to constitute willful
misfeasance or gross negligence on the part of the indemnifying party.
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,
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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:
Each Fund (and the Adviser with respect to the Fund) is excluded from the
definition of a commodity pool operator under CFTC Rule 4.5. In order to
ensure compliance with the requirements of Rule 4.5, the Adviser promises
that: (1) the Fund will not be, and has not been, marketing participations
to the public as or in a commodity pool or otherwise as or in a vehicle
for trading in the commodity futures, commodity options, or swaps markets
(as these terms are used by Rule 4.5 and interpreted by the CFTC); (2) the
Adviser will make and maintain all filings required by Rule 4.5; and (3)
the Adviser will take all other actions required to qualify for the
exclusion provided by Rule 4.5 for the Funds, other than as provided by
Section 19 below. The Adviser will furnish the Sub-Adviser with a copy of
the notice of eligibility filed pursuant to Rule 4.5 (c) with respect to
such exclusion, or, if more recent, the most recent annual notice
affirming the basis of such eligibility that has been filed pursuant to
Rule 4.5(c)(5), and any other documentation or assurances the Sub-Adviser
may reasonably request with respect to the Fund's reliance on Rule 4.5.
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.
The Adviser also agrees to promptly update the above referenced items in
order to ensure their accuracy, completeness and/or effectiveness.
15. CONFIDENTIAL TREATMENT. It is understood that any information or
recommendation supplied by, or produced by, Sub-Adviser in connection with
the performance of its obligations hereunder is to be regarded as
confidential and for use only by the Adviser and the Trust. Furthermore,
except as required by law (including, but not limited to semi-annual,
annual or other filings made under the 0000 Xxx) or as agreed to by the
Adviser and Sub-Adviser, the Adviser and Trust will not disclose any list
of securities held by the Fund until it is either filed with the
Securities & Exchange Commission or mailed out to shareholders, which
filing or mailing shall not be made sooner than 30 days after quarter end
in any manner whatsoever except as expressly authorized in this Agreement,
except that the top 10 holdings may be disclosed 15 days after month end.
In addition, at the end of each quarter, the Adviser may disclose to
certain third party data or service providers
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to the Fund, who have entered into a confidentiality agreement with the
Adviser, a list of securities purchased or sold by the Fund during the
quarter.
16. ENTIRE AGREEMENT; AMENDMENT OF THIS AGREEMENT. This Agreement constitutes
the entire agreement between the parties with respect to the Funds. 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.
17 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:
Franklin Advisory Services, LLC
Xxx Xxxxxx Xxxxx, 0xx Xxxxx
Xxxx Xxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
With a copy to:
Franklin Xxxxxxxxx Investments
Xxx Xxxxxxxx Xxxxxxx
Xxx Xxxxx, XX 00000-0000
Attention: General Counsel
18. 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.
19. APPLICABLE LAW. This Agreement shall be construed in accordance with
applicable federal law and the laws of the State of Michigan.
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20. 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.
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IN WITNESS WHEREOF, the Adviser and the Sub-Adviser have caused this
Agreement to be executed as of this 20 day of December 2012, effective December
1, 2012.
XXXXXXX NATIONAL ASSET MANAGEMENT, LLC
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
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Title: President and CEO
---------------------------------
FRANKLIN ADVISORY SERVICES, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------------
Title: President
---------------------------------
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SCHEDULE A
DECEMBER 1, 2012
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FUNDS
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JNL/Franklin Xxxxxxxxx Small Cap Value Fund
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A-1
SCHEDULE B
DECEMBER 1, 2012
(Compensation)
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JNL/FRANKLIN XXXXXXXXX SMALL CAP VALUE FUND
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AVERAGE DAILY NET ASSETS ANNUAL RATE
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$0 to $200 Million 0.60%
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$200 Million to $500 Million 0.52%
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Amounts over $500 Million 0.50%
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B-1
