EX-99.23(e)(4)
AMENDED DISTRIBUTION AGREEMENT
This Agreement is executed on February 7, 2007 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 Michigan,
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: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxx
Xxxxxxx X. Xxxxxx Name: Xxxx X. Xxxxx
Title: President and Chief Executive Officer
ATTEST: XXXXXXX NATIONAL LIFE
DISTRIBUTORS, INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx Xxxxxxxxxx
Xxxxxxx X. Xxxxxx Name: Xxxxx Xxxxxxxxxx
Title: Executive Vice President
