EX-99.23(e)(10)
DISTRIBUTION AGREEMENT
This Agreement is made on the 29th day of December, 2008, by and between JNL
Variable Fund LLC (the "Company") and Xxxxxxx National Life Distributors LLC
("JNLD").
WHEREAS, the Company is an open-end, management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Company is authorized to issue shares ("Shares") in separate funds
(the "Funds") with each such Fund representing interests in a separate portfolio
of securities and other assets; and
WHEREAS, the Company has adopted a Multiple Class Plan pursuant to Rule 18f-3
under the 1940 Act, authorizing each Fund to issue Class A and Class B shares;
and
WHEREAS, pursuant to Rule 12b-1 under the 1940 Act, the Company has adopted a
Rule 12b-1 Plan (the "12b-1 Plan"), under which the Company may use assets of
Class A Shares of the Funds to reimburse certain distribution and related
service expenses that are primarily intended to result in the sale of such Class
A Shares of the Funds; and
WHEREAS, in furtherance of the purposes of the 12b-1 Plan, the Company wishes to
enter into a distribution agreement with JNLD with respect to the Funds listed
on Schedule A (attached hereto), which may from time to time be amended; and
WHEREAS, the Company 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 Company 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 Company 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 JNLD has provided
copies of its written policy to the Company; and
WHEREAS, JNLD wishes to render the services hereunder to the Company;
NOW THEREFORE, in consideration of the mutual promises and covenants hereinafter
set forth, the parties hereto agree as follows:
1. Appointment and Acceptance. The Company hereby appoints JNLD as distributor
of the Shares of the Funds set forth on Schedule A 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 will act in conformity
with the registration statement of the Company on Form N-1A (the
"Registration Statement"), as amended from time to time and with any
instructions received from the Board of Managers of the Company (the
"Board of Managers"), 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 holds itself available to receive orders for the purchase or
redemption of Shares and will accept or reject orders to purchase or
redeem such Shares on behalf of the Company in accordance with the
provisions of the Registration Statement, and will transmit such
orders as are so accepted to the Company's transfer agent promptly for
processing.
(c) JNLD shall not be obligated to sell any certain number of Shares.
Except as provided in this Agreement, no commission or other fee will
be paid to JNLD in connection with the sale of Shares.
3. JNLD Expenses. During the term of this Agreement, JNLD will 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; and
(b) any compensation paid to employees of JNLD in connection with the
distribution or sale of the Shares.
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 12b-1 Plan.
4. Company Expenses. Pursuant to an Administration Agreement, the Company
shall bear all of its expenses including, but not limited to:
(a) preparation and setting in type, printing and distributing reports and
other communications, proxies, prospectuses and statements of
additional information to existing shareholders;
(b) registration of the Company's Shares with the Securities and Exchange
Commission.
5. Sale of Shares by Distributor.
(a) JNLD agrees that (i) all Shares sold by JNLD pursuant to this
Agreement shall be sold at the net asset value as described in the
Registration Statement and (ii) the Company shall receive 100% of such
net asset value.
(b) All orders received by JNLD and transmitted to the Company shall be
subject to acceptance and confirmation by the Company.
6. 12b-1 Plan.
(a) As used herein, the term "12b-1 Fee" refers to a charge against Fund
Class A Share assets, as authorized under the 12b-1 Plan, to finance
distribution and related services, as described in the 12b-1 Plan.
(b) In accordance with the terms of the 12b-1 Plan, JNLD shall provide
distribution and related services of the types contemplated under the
12b-1 Plan and reviewed from time to time by the Board of Managers
with respect to the Class A Shares of the Funds shown on Schedule A
hereto, and may arrange for and compensate others for providing or
assisting in providing such services, as described in the 12b-1 Plan.
The Company, on behalf of each Fund that is subject to the 12b-1 Fee
as shown on Schedule A, shall reimburse the Distributor for
distribution and related service expenses incurred in promoting the
sale of the Fund's Class A Shares at a rate of up to the 12b-1 Fee
rate per annum of the average daily net assets attributable to the
Class A Shares shown on Schedule A hereto. Each Fund's Class A Shares
shall bear exclusively its own costs of such reimbursements. Such
distribution and related service expenses 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 related service expenses for that
fiscal quarter.
7. Reservation of Right Not to Sell. The Company reserves the right to refuse
at any time or times to sell any of its Shares for any reason deemed
adequate by it.
8. Construction of Agreement.
(a) No provision of this Agreement is intended to or shall be construed as
protecting JNLD against any liability to the Company or to the
Company'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
Company's Operating Agreement, shall have the same meaning herein as
given to such terms or words in the Operating Agreement.
9. Effective Date and Termination of this Agreement. This Agreement shall
become effective at the date and time that the Company'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 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 Managers or by
the vote of a majority (as defined in the 0000 Xxx) of the outstanding
voting securities of the applicable Funds of the Company and, in either
event, by the vote of a majority of the Managers of the Company 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.
This Agreement may be terminated at any time without the payment of any
penalty by the Company 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 Company at least thirty (30)
days' previous written notice of such intention to terminate.
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.
10. Notices. Notices of any kind to be given to JNLD by the Company 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 JNLD to the Company.
Notices of any kind to be given to the Company 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 Company.
11. Non-Exclusivity. The services of JNLD to the Company 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.
12. Reports. JNLD shall prepare reports for the Board of Managers on a
quarterly basis showing such information as shall be reasonably requested
by the Board of Managers from time to time.
13. 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
Company in any way other than as specifically set forth herein. It is
understood and agreed that JNLD, by separate agreement with the Company,
may also serve the Company in other capacities.
14. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original.
15. 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.
16. 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.
17. JNLD agrees to implement and operate an AML Program on behalf of the
Company (the "Company AML Program") as such Program pertains to shareholder
transactions effected through services provided by JNLD. JNLD agrees that
the Company AML Program will be reasonably designed to prevent the Company
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 thereunder.
18. JNLD agrees to maintain and preserve reasonable records pertaining to the
implementation and operation of the Company AML Program. JNLD consents,
upon reasonable notice, (a) to make information and records regarding the
operation of the Company AML Program available to the Securities and
Exchange Commission (the "SEC") for review and (b) to make the Company AML
Program available for inspection by the SEC.
19. However, the addition or deletion of a fund reflecting changes that have
been formally approved by resolution by the Board of Managers will not
require approval by the Board of Managers.
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 VARIABLE FUND LLC
By:___________________________________ By:___________________________________
Name: Xxxx X. Xxxxx
Title: President
ATTEST: XXXXXXX NATIONAL LIFE DISTRIBUTORS LLC
By:___________________________________ By:___________________________________
Name: Xxxxx Xxxxxxxxxx
Title: Executive Vice President
SCHEDULE A
------------------------------------------------------------------------- --------------------- --------------------
MAXIMUM
FUND CLASS 12B-1 FEE(1)
------------------------------------------------------------------------- --------------------- --------------------
JNL/Mellon Capital Management DowSM 10 Fund Class A 0.20%
Class B None
------------------------------------------------------------------------- --------------------- --------------------
JNL/Mellon Capital Management S&P(R) 10 Fund Class A 0.20%
Class B None
------------------------------------------------------------------------- --------------------- --------------------
JNL/Mellon Capital Management Global 15 Fund Class A 0.20%
Class B None
------------------------------------------------------------------------- --------------------- --------------------
JNL/Mellon Capital Management Nasdaq(R) 25 Fund Class A 0.20%
Class B None
------------------------------------------------------------------------- --------------------- --------------------
JNL/Mellon Capital Management Value Line(R) 30 Fund Class A 0.20%
Class B None
------------------------------------------------------------------------- --------------------- --------------------
JNL/Mellon Capital Management DowSM Dividend Fund Class A 0.20%
Class B None
------------------------------------------------------------------------- --------------------- --------------------
JNL/Mellon Capital Management S&P(R) 24 Fund Class A 0.20%
Class B None
------------------------------------------------------------------------- --------------------- --------------------
JNL/Mellon Capital Management 25 Fund Class A 0.20%
Class B None
------------------------------------------------------------------------- --------------------- --------------------
JNL/Mellon Capital Management Select Small-Cap Fund Class A 0.20%
Class B None
------------------------------------------------------------------------- --------------------- --------------------
JNL/Mellon Capital Management JNL 5 Fund Class A 0.20%
Class B None
------------------------------------------------------------------------- --------------------- --------------------
JNL/Mellon Capital Management VIP Fund Class A 0.20%
Class B None
------------------------------------------------------------------------- --------------------- --------------------
JNL/Mellon Capital Management JNL Optimized 5 Fund Class A 0.20%
Class B None
------------------------------------------------------------------------- --------------------- --------------------
JNL/Mellon Capital Management S&P(R) XXxx 60 Fund Class A 0.20%
Class B None
------------------------------------------------------------------------- --------------------- --------------------
JNL/Mellon Capital Management NYSE(R) International 25 Fund Class A 0.20%
Class B None
------------------------------------------------------------------------- --------------------- --------------------
JNL/Mellon Capital Management Communications Sector Fund Class A 0.20%
Class B None
------------------------------------------------------------------------- --------------------- --------------------
JNL/Mellon Capital Management Consumer Brands Sector Fund Class A 0.20%
Class B None
------------------------------------------------------------------------- --------------------- --------------------
JNL/Mellon Capital Management Oil & Gas Sector Fund Class A 0.20%
Class B None
------------------------------------------------------------------------- --------------------- --------------------
JNL/Mellon Capital Management Financial Sector Fund Class A 0.20%
Class B None
------------------------------------------------------------------------- --------------------- --------------------
JNL/Mellon Capital Management Healthcare Sector Fund Class A 0.20%
Class B None
------------------------------------------------------------------------- --------------------- --------------------
JNL/Mellon Capital Management Technology Sector Fund Class A 0.20%
Class B None
------------------------------------------------------------------------- --------------------- --------------------
