FORM OF DISTRIBUTION AGREEMENT
Exhibit (e)(1)
FORM OF
DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of __________, 2016, by and between Janus Detroit Street Trust, a
Delaware statutory trust (the “Fund”), and ALPS Distributors, Inc., a Colorado corporation
(“ALPS”).
WHEREAS, the Fund is an open-end investment company offering a number of portfolios of
securities (each a “Portfolio”), each investing primarily in securities selected to reflect the
performance of a particular market index or which are actively-managed, having filed with the
Securities and Exchange Commission (the “SEC”) a registration statement on Form N-1A under the
Securities Act of 1933, as amended (the “1933 Act”), and the Investment Company Act of 1940, as
amended (the “1940 Act”);
WHEREAS, ALPS is registered with the SEC as a broker-dealer under the Securities Exchange Act
of 1934 (the “1934 Act”) and a member of the Financial Industry Regulatory Authority (“FINRA”);
WHEREAS, the Fund intends to create and redeem shares of beneficial interest, par value $.001
per share (the “Shares”) of each Portfolio on a continuous basis at their net asset value only in
aggregations constituting a Creation Unit, as such term is defined in the Fund’s registration
statement;
WHEREAS, the Shares of each Portfolio will be listed on one or more national securities
exchanges registered pursuant to Section 6 of the 1934 Act (each a “Listing Exchange”) and traded
under the symbols set forth in Appendix A hereto (as amended from time to time);
WHEREAS, the Fund desires to retain ALPS to act as the distributor with respect to the
issuance and distribution of Creation Units of Shares of each Portfolio, hold itself available to
receive and process orders for such Creation Units in the manner set forth in the Fund’s prospectus
and to enter into arrangements with broker-dealers identified and specified by the Trust who may
solicit purchases of Shares and with broker-dealers and others to provide for servicing of
shareholder accounts and for distribution assistance, including broker-dealer and shareholder
support; and
WHEREAS, ALPS desires to provide the services described herein to the Fund.
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained, the
parties agree as follows.
| 1. | ALPS Appointment and Duties. |
| (a) | The Fund hereby appoints ALPS as the exclusive distributor for Creation Unit
aggregations of Shares of each Portfolio listed in Appendix A hereto, as may be
amended from time to time, and to perform the duties that are set forth in
Appendix B hereto as amended from time to time, upon the terms and conditions hereinafter set |
forth. ALPS hereby accepts such appointment and agrees to furnish such
specified services. ALPS shall for all purposes be deemed to be an independent
contractor and shall, except as otherwise expressly authorized in this Agreement, have no
authority to act for or represent the Fund in any way or otherwise be deemed an agent of
the Fund. |
| (b) | ALPS may employ or associate itself with a person or persons or organizations as
ALPS believes to be desirable in the performance of its duties hereunder; provided that,
in such event, the compensation of such person or persons or organizations shall be paid
by and be the sole responsibility of ALPS, and the Fund shall bear no cost or obligation
with respect thereto; and provided further that ALPS shall not be relieved of any of its
obligations under this Agreement in such event and shall be responsible for all acts of
any such person or persons or organizations taken in furtherance of this Agreement to the
same extent it would be for its own acts. |
2. ALPS Compensation; Expenses. ALPS will bear all expenses in connection with the
performance of its services under this Agreement, except as otherwise provided herein. ALPS will
not bear any of the costs of Fund personnel. Other Fund expenses incurred shall be borne by the
Fund or the Fund’s investment adviser, including, but not limited to, initial organization and
offering expenses; the blue sky registration and qualification of Shares for sale in the various
states in which the officers of the Fund or their delegate(s) shall determine it advisable to
qualify such Shares for sale (including registering the Fund as a broker or dealer or any officer
of the Fund as agent or salesman in any state); litigation expenses; taxes; costs of preferred
shares; expenses of conducting repurchase offers for the purpose of repurchasing Fund shares;
administration, transfer agency, and custodial expenses; interest; Fund trustees’ fees; brokerage
fees and commissions; state and federal registration fees; advisory fees; insurance premiums;
fidelity bond premiums; Fund and investment advisory related legal expenses; costs of maintenance
of Fund existence; printing and delivery of materials in connection with meetings of the Fund’s
trustees; printing and mailing of shareholder reports, prospectuses, statements of additional
information, other offering documents and supplements, proxy materials, and other communications to
shareholders; securities pricing data and expenses in connection with electronic filings with the
SEC. The Fund shall not pay any cost of advertising or promoting the sale of Shares, except for
payments that may be made pursuant to a distribution and/or shareholder servicing plan adopted by
the Fund under Rule 12b-1 under the 1940 Act.
3. Documents. The Fund has furnished or will furnish, upon request, ALPS with copies of
the Fund’s Trust Instrument, advisory agreement, custodian agreement, transfer agency agreement,
administration agreement, current prospectus, statement of additional information, periodic Fund
reports, and all forms relating to any plan, program or service offered by the Fund. The Fund shall
furnish, within a reasonable time period, to ALPS a copy of any amendment or supplement to any of
the above-mentioned documents. Upon request, the Fund shall furnish promptly to ALPS any additional
documents necessary or advisable to perform its functions hereunder. As used in this Agreement the
terms “registration statement,” “prospectus” and “statement of additional information” shall mean
any registration statement, prospectus and statement of additional information filed by the Fund
with the SEC and any amendments and supplements thereto that are filed with the SEC.
2
4. Insurance. ALPS agrees to maintain fidelity bond and liability insurance coverages
which are, in scope and amount, consistent with coverages customary for distribution activities
relating to the Fund. ALPS shall notify the Fund upon receipt of any notice of material, adverse
change in the terms or provisions of its insurance coverage. Such notification shall include the
date of change and the reason or reasons therefore. ALPS shall notify the Fund of any material
claims against it, whether or not covered by insurance, and shall notify the Fund from time to time
as may be appropriate of the total outstanding claims made by it under its insurance coverage.
| 5. | Right to Receive Advice. |
| (a) | Advice of the Fund and Service Providers. If ALPS is in doubt as to any
action it should or should not take, ALPS may request directions, advice, or instructions
from the Fund or, as applicable, the Fund’s investment adviser, custodian, or other
service providers. |
||
| (b) | Advice of Counsel. If ALPS is in doubt as to any question of law
pertaining to any action it should or should not take, ALPS may request advice from
counsel of its own choosing (who may be counsel for the Fund, the Fund’s investment
adviser (who may be used upon advance approval by the Fund’s investment adviser), or
ALPS, at the option of ALPS). |
||
| (c) | Conflicting Advice. In the event of a conflict between directions, advice
or instructions ALPS receives from the Fund or any Fund service provider and the advice
ALPS receives from counsel, ALPS may in its sole discretion, and subject to Section 6 of
this Agreement, rely upon and follow the advice of counsel. ALPS will provide the Fund
with prior written notice of its intent to follow advice of counsel that is materially
inconsistent with directions, advice or instructions from the Fund. Upon request, ALPS
will provide the Fund with a copy of such advice of counsel. |
| 6. | Standard of Care; Limitation of Liability; Indemnification. |
| (a) | ALPS shall be obligated to act in good faith and to exercise commercially
reasonable care and diligence in the performance of its duties under this Agreement. |
||
| (b) | In the absence of willful misfeasance, bad faith, negligence, or reckless disregard
by ALPS in the performance of its duties, obligations, or responsibilities set forth in
this Agreement, ALPS and its affiliates, including their respective officers, directors,
agents, and employees (“ALPS Indemnitees”), shall not be liable for, and the Fund agrees
to indemnify, defend and hold harmless ALPS Indemnities from, all losses, damages, taxes,
charges, expenses, assessments, claims, and liabilities (including, without limitation,
reasonable attorneys’ fees and disbursements and liabilities arising under applicable
federal and state laws) (each an “ALPS Liability”) arising from the following: |
3
| (i) | the inaccuracy of factual information furnished to ALPS by the Fund or
the Fund’s investment adviser, custodians, or other service providers; |
||
| (ii) | any untrue statement of a material fact or omission of a material fact
required to be stated or necessary in order to make the statements not misleading
under the 1933 Act, the 1940 Act, or any other statute or the common law, in any
registration statement, prospectus, statement of additional information,
shareholder report, or other information filed or made public by the Fund (as
amended from time to time), except to the extent: (a) the statement or omission was
made in reliance upon, and in conformity with, information furnished to the Fund by
or on behalf of ALPS or an ALPS Indemnitee; or (b) any untrue statement of a
material fact or omission of a material fact that was corrected prior to the event
causing an ALPS Liability or ALPS Liabilities; |
||
| (iii) | losses, delays, failure, errors, interruption or loss of data
occurring directly or indirectly by reason of circumstances beyond its reasonable
control, including without limitation, acts of God, action or inaction of civil or
military authority, war, terrorism, riot, fire, flood, sabotage, labor disputes,
elements of nature, or non-performance by a third party; |
||
| (iv) | ALPS’ reliance on any instruction, direction, notice, instrument or
other information that ALPS reasonably believes to be genuine; or |
||
| (v) | loss of data or service interruptions caused by equipment failure
outside of the commercially reasonable control of ALPS. |
| (c) | ALPS shall indemnify and hold harmless the Fund, the Fund’s investment adviser and
their respective officers, trustees, directors, agents, and employees from and against
any and all losses, damages, taxes, charges, expenses, assessments, claims, and
liabilities (including, without limitation, reasonable attorneys’ fees and disbursements
and liabilities arising under applicable federal and state laws) (each a “Fund
Liability”) arising from ALPS’ or ALPS Indemnitees’ willful misfeasance, bad faith,
negligence, or reckless disregard in the performance of its duties, obligations, or
responsibilities set forth in this Agreement; or arising from any untrue statement of a
material fact or omission of a material fact required to be stated or necessary in order
to make the statements not misleading under the 1933 Act, the 1940 Act, or any other
statute or the common law, in any registration statement, prospectus, statement of
additional information, shareholder report, or other information filed or made public by
the Fund (as amended from time to time), provided that the statement or omission was made
in reliance upon, and in conformity with, information furnished to the Fund by or on
behalf of ALPS or an ALPS Indemnitee that had not been corrected prior to the event
causing a Fund Liability or Fund Liabilities. |
||
| (d) | Notwithstanding anything in this Agreement to the contrary, neither party shall be
liable under this Agreement to the other party hereto for any punitive, consequential,
special or indirect losses or damages. Any indemnification payable by a party to this |
4
Agreement shall be net of insurance maintained by the indemnified party as of the time
the claim giving rise to indemnity hereunder is alleged to have arisen to the extent it
covers such claim. |
7. Activities of ALPS. The services of ALPS under this Agreement are not to be deemed
exclusive, and ALPS shall be free to render similar services to others. ALPS agrees to use its
best efforts in connection with the distribution of Shares of the Fund on a continuous basis. The
Fund recognizes that from time to time directors, officers and employees of ALPS may serve as
directors, officers and employees of other corporations or businesses (including other investment
companies) and that such other corporations and businesses may include ALPS as part of their name
and that ALPS or its affiliates may enter into distribution agreements or other agreements with
such other corporations and businesses.
8. Accounts and Records. The accounts and records maintained by ALPS shall be the property
of the Fund. ALPS shall prepare, maintain and preserve such accounts and records as required by
the 1940 Act and other applicable securities laws, rules and regulations. ALPS shall surrender
such accounts and records to the Fund, in the form in which such accounts and records have been
maintained or preserved, promptly upon receipt of instructions from the Fund. The Fund shall have
access to such accounts and records at all times during ALPS’ normal business hours. Upon the
reasonable request of the Fund, copies of any such books and records shall be provided by ALPS to
the Fund at the Fund’s expense. ALPS shall assist the Fund, the Fund’s independent auditors, or,
upon approval of the Fund, any regulatory body, in any requested review of the Fund’s accounts and
records, and reports by ALPS or its independent accountants concerning its accounting system and
internal auditing controls will be open to such entities for audit or inspection upon reasonable
request. ALPS or its undersigned as defined by Rule 17a-4 of the Securities and Exchange Act (the
“Exchange Act”), shall have access to all electronic communications, including password access to
the system storing the electronic communications, of registered representatives of ALPS that are
associated with the Fund and are required to be maintained under Rule 17a-4 of the Exchange Act and
FINRA Rules 3110 and 3010. Electronic storage media maintained by the Fund will comply with Rule
17a-4 of the Exchange Act.
9. Confidential and Proprietary Information. ALPS agrees that it will, on behalf of itself
and its officers and employees, treat all transactions contemplated by this Agreement, and all
records and information relative to the Fund, its investment advisers, and its current and former
shareholders and other information germane thereto including, but not limited to non-public
portfolio holdings information, as confidential and as proprietary information of the Fund and not
to use, sell, transfer, trade on, or divulge such information or records to any person for any
purpose other than performance of its duties hereunder, except after prior notification to and
approval in writing from the Fund, which approval shall not be unreasonably withheld. Approval may
not be withheld where ALPS may be exposed to civil, regulatory, or criminal proceedings for failure
to comply, when requested to divulge such information by duly constituted authorities, or when
requested by the Fund. When requested to divulge such information by duly constituted authorities,
ALPS shall use reasonable commercial efforts to request confidential treatment of such information.
ALPS shall have in place and maintain physical, electronic, and procedural safeguards reasonably
designed to protect the security,
5
confidentiality, and integrity of, and to prevent unauthorized access to or use of records and
information relating to the Fund and its current and former shareholders.
10. Compliance with Rules and Regulations. ALPS shall comply (and to the extent ALPS takes
or is required to take action on behalf of the Fund hereunder shall cause the Fund to comply) with
all applicable requirements of the 1940 Act and other applicable laws (including state Blue Sky
laws), rules, regulations, orders (including exemptive relief and applicable no-action letters) and
code of ethics, as well as all investment restrictions, policies and procedures adopted by the Fund
of which ALPS has knowledge (it being understood that ALPS is deemed to have knowledge of all
investment restrictions, policies or procedures set out in the Fund’s public filings or otherwise
provided to ALPS). Except as set out in this Agreement, ALPS assumes no responsibility for such
compliance by the Fund. ALPS shall maintain at all times a program reasonably designed to prevent
violations of the federal securities laws (as defined in Rule 38a-1 under the 0000 Xxx) with
respect to the services provided, and shall provide to the Fund a certification to such effect no
less than annually or as otherwise reasonably requested by the Fund and to provide information with
respect to material violations of the program and any material deficiencies or changes therein, as
may be reasonably requested by the Fund’s chief compliance officer or the Trust’s Board of Trustees
(“Board of Trustees”) with respect to ALPS’ services to the Fund under this Agreement. ALPS shall
make available its compliance personnel and shall provide at its own expense summaries and other
relevant materials relating to such program as reasonably requested by the Fund.
| 11. | Representations and Warranties of ALPS. ALPS represents and warrants to the Fund that: |
| (a) | It is duly organized and existing as a corporation and in good standing under the
laws of the State of Colorado. |
||
| (b) | It is empowered under applicable laws and by its Articles of Incorporation and
By-laws to enter into and perform this Agreement. |
||
| (c) | All requisite corporate proceedings have been taken to authorize it to enter into
and perform this Agreement. |
||
| (d) | It has and will continue to have access to the necessary facilities, equipment and
personnel to perform its duties and obligations under this Agreement in accordance with
industry standards. |
||
| (e) | ALPS has conducted a review of its supervisory controls system and has made
available to the Fund the most current report of such review and any updates thereto.
Every time ALPS conducts a review of its supervisory control system it will make
available to the Fund for inspection a report of such review and any updates thereto.
ALPS shall immediately notify the Fund of any changes in how it conducts its business
that would materially change the results of its most recent review of its supervisory
controls system and any other changes to ALPS’ business that would affect the business
of the Fund or the Fund’s investment adviser. |
6
| (f) | It is a broker-dealer registered under the 1934 Act and a FINRA member in good
standing and will continue in each such capacity under the term of this Agreement. |
||
| (g) | It is not affiliated with a Listing Exchange and any index provider. |
||
| (h) | It has procedures in place reasonably designed to protect the privacy of
non-public personal consumer/customer information to the extent required by applicable
law, rule, and regulation, including but not limited to, Regulation S-P. |
| 12. | Representations and Warranties of the Fund. The Fund represents and warrants to ALPS
that: |
| (a) | It is a statutory trust duly formed and existing and in good standing under the
laws of the state of Delaware and is registered with the SEC as an open-end management
investment company. |
||
| (b) | It is empowered under applicable laws and by its Trust Instrument and by-laws to
enter into and perform this Agreement. |
||
| (c) | The Board of Trustees of the Fund has duly authorized it to enter into and perform
this Agreement. |
||
| (d) | Notwithstanding anything in this Agreement to the contrary, the Fund agrees not to
make any modifications to its registration statement or adopt any policies which would
affect materially the obligations or responsibilities of ALPS hereunder without the prior
written approval of ALPS, which approval shall not be unreasonably withheld or delayed. |
| 13. | Duties of the Fund. |
| (a) | ALPS and the Fund shall regularly consult with each other regarding ALPS’
performance of its obligations under this Agreement. In connection therewith, the Fund
shall submit to ALPS at a reasonable time in advance of filing with the SEC reasonably
final copies of any amended or supplemented registration statement (including exhibits)
under the 1933 Act and the 1940 Act; provided, however, that nothing contained in this
Agreement shall in any way limit the Fund’s right to file at any time such amendments
to any registration statement and/or supplements to any prospectus or statement of
additional information, of whatever character, as the Fund may deem advisable, such
right being in all respects absolute and unconditional. |
||
| (b) | The Fund agrees to issue Creation Unit aggregations of Shares of the Fund and
to request The Depository Trust Company to record on its books the ownership of such
Shares in accordance with the book-entry system procedures described in the prospectus
in such amounts as ALPS has requested through the transfer agent in writing or other
means of data transmission, as promptly as practicable after receipt by the Fund of the
requisite deposit securities and cash component (together with any fees) and acceptance
of such order, upon the terms described in the Registration |
7
Statement. The Fund may
reject any order for Creation Units or stop all receipts of such orders at any time
upon reasonable notice to ALPS, in accordance with the provisions of the Prospectus. |
|||
| (c) | The Fund agrees that it will take all action necessary to register an
indefinite number of Shares under the 0000 Xxx. The Fund shall make available to ALPS,
at ALPS’ expense, such number of copies of its prospectus, statement of additional
information, and periodic reports as ALPS may reasonably request. The Fund will
furnish to ALPS copies of all information, financial statements and other papers, which
ALPS may reasonably request for use in connection with the distribution of Creation
Units. |
||
| (d) | The Fund agrees to execute any and all documents and to furnish any and all
information and otherwise to take all actions that may be reasonably necessary in
connection with the qualification of the Shares for sale in such states as ALPS may
designate. The Fund will keep ALPS informed of the jurisdictions in which Creation
Units of the Fund are authorized for sale and shall promptly notify ALPS of any change
in this information. |
14. Segregated Portfolio Liability. In accordance with the Trust Instrument, the parties
agree that all liabilities of the Fund or a Portfolio arising, directly or indirectly, under this
Agreement, of any and every nature whatsoever, shall be satisfied solely out of the assets of a
Portfolio and no trustee, officer, agent, or holder of shares of beneficial interest of the Fund or
a Portfolio shall be personally liable under this Agreement. The Trust Instrument describes in
detail the respective responsibilities and limitations on liability of the trustees, officers,
agents, and holders of shares of beneficial interest of the Fund. The property of any one
Portfolio is the property of only that Portfolio, and in no event shall any Portfolio be liable for
the obligations of any other Portfolio.
15. Anti-Money Laundering. ALPS agrees to maintain an anti-money laundering program in
compliance with Title III of the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (the “USA Patriot Act”), the Bank Secrecy
Act, and all applicable laws and regulations promulgated thereunder. ALPS confirms that, as soon
as possible, following the request from the Fund, ALPS will supply the Fund with copies of ALPS’
anti-money laundering policy and procedures, and such other relevant certifications and
representations regarding such policy and procedures as the Fund may reasonably request from time
to time. ALPS will provide, to the Fund, any Financial Crimes Enforcement Network (FinCEN) request
received pursuant to USA Patriot Act Section 314(a), which the Fund may then provide to its
transfer agent.
16. Liaison with Accountants. ALPS shall act as a liaison with the Fund’s independent
public accountants and shall provide account analysis, fiscal year summaries, and other
audit-related schedules with respect to the services provided to the Fund. ALPS shall take all
reasonable action in the performance of its duties under this Agreement to assure that the
necessary information is made available to such accountants as reasonably requested or required by
the Fund.
8
17. Business Interruption Plan. ALPS shall maintain in effect a business interruption
plan, and enter into any agreements necessary with appropriate parties making reasonable provisions
for emergency use of electronic data processing equipment customary in the industry. In the event
of equipment failures, ALPS shall, at no additional expense to the Fund, take commercially
reasonable steps to minimize service interruptions.
18. Duration and Termination of this Agreement.
| (a) | Initial Term. This Agreement shall become effective as of the later of the
date first written above or the commencement of operations of the Fund (the
“Start Date”) and shall continue thereafter throughout the period that ends two (2) years
after the Start Date (the “Initial Term”). |
||
| (b) | Renewal Term. If not sooner terminated pursuant to subsection (c) of this
Section 18, this Agreement shall renew at the end of the Initial Term and shall
thereafter continue for successive annual periods, provided such continuance is
specifically approved at least annually (i) by the Fund’s Board of Trustees or (ii) by a
vote of a majority of the outstanding voting securities of the relevant portfolio of the
Fund, provided that in either event the continuance is also approved by the majority of
the Trustees of the Fund who are not interested persons (as defined in the 0000 Xxx) of
any party to this Agreement by vote cast in person at a meeting called for the purpose of
voting on such approval. If a plan under Rule 12b-1 of the 1940 Act is in effect,
continuance of the plan and this Agreement must be approved at least annually by the
Fund’s Board of Trustees and a majority of the Trustees of the Fund who are not
interested persons (as defined in the 0000 Xxx) and have no financial interest in the
operation of such plan or in any agreements related to such plan, cast in person at a
meeting called for the purpose of voting on such approval. |
||
| (c) | This Agreement is terminable at any time without penalty: (a) on sixty (60) days’
written notice by the Fund’s Board of Trustees or by vote of the holders of a majority of
the outstanding voting securities of the relevant portfolio; or (b) on ninety (90) days’
written notice by ALPS. Either party may terminate this Agreement at any time
immediately upon written notice in the event of the other party’s failure to fulfill any
of its obligations under this Agreement. |
||
| (d) | Deliveries Upon Termination. Upon termination of this Agreement, ALPS
agrees to cooperate in the orderly transfer of distribution duties and shall deliver to
the Fund or as otherwise directed by the Fund (at the expense of the Fund) all records
and other documents made or accumulated in the performance of its duties for the Fund
hereunder. In the event ALPS gives notice of termination under this Agreement, it will
continue to provide the services contemplated hereunder after such termination at the
contractual rate for up to 120 days, provided that the Fund uses all reasonable
commercial efforts to appoint such replacement on a timely basis. |
9
19. Assignment. This Agreement will automatically terminate in the event of its assignment
(as defined in the 1940 Act). This Agreement shall not be assignable by the Fund without the prior
written consent of ALPS.
20. Governing Law. The provisions of this Agreement shall be construed and interpreted in
accordance with the laws of the State of Colorado and the 1940 Act and the rules thereunder. To
the extent that the laws of the State of Colorado conflict with the 1940 Act or such rules, the
latter shall control.
21. Names. The obligations of the Fund entered into in the name or on behalf thereof by
any trustee, shareholder, representative, or agent thereof are made not individually, but in such
capacities, and are not binding upon any of the trustees, shareholders, representatives or agents
of the Fund personally, but bind only the property of the Fund, and all persons dealing with the
Fund must look solely to the property of the Fund for the enforcement of any claims against the
Fund.
22. Amendments to this Agreement. This Agreement may only be amended by the parties in
writing. All material amendments to this Agreement must be approved by votes of both the Board of
Trustees and a majority of the Trustees of the Fund who are not interested persons (as defined in
the 1940 Act), voting in person at a meeting called for the purpose of voting on the Agreement.
23. Notices. All notices and other communications hereunder shall be in writing, shall be
deemed to have been given when received or when sent by telex or facsimile, and shall be given to
the following addresses (or such other addresses as to which notice is given):
| To ALPS: | ||||
| ALPS Distributors, Inc. | ||||
| 0000 Xxxxxxxx, Xxxxx 0000 | ||||
| Xxxxxx, Xxxxxxxx 00000 | ||||
| Attn: | General Counsel | |||
| Fax: | (000) 000-0000 | |||
| To the Fund: | ||||
| Janus Detroit Street Trust | ||||
| 000 Xxxxxxx Xxxxxx | ||||
| Xxxxxx, Xxxxxxxx 00000 | ||||
| Attn: | Chief Legal Officer | |||
| Fax: | (000) 000-0000 | |||
| With a copy to: | ||||
10
| Janus Distributors LLC | ||||
| 000 Xxxxxxx Xxxxxx | ||||
| Xxxxxx, Xxxxxxxx 00000 | ||||
| Attn: General Counsel | ||||
24. Counterparts. This Agreement may be executed by the parties hereto on any number of
counterparts, and all of said counterparts taken together shall be deemed to constitute one and the
same instrument.
25. Entire Agreement. This Agreement embodies the entire agreement and understanding among
the parties and supersedes all prior agreements and understandings relating to the subject matter
hereof; provided, however, that ALPS may embody in one or more separate documents its agreement, if
any, with respect to delegated duties and oral instructions.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first
above written.
| JANUS DETROIT STREET TRUST |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| ALPS DISTRIBUTORS, INC. |
||||
| By: | ||||
| Name: | ||||
| Title | ||||
11
APPENDIX A
LIST OF PORTFOLIOS
LIST OF PORTFOLIOS
Janus Velocity Volatility Hedged Large Cap ETF1
|
SPXH | ||||
Janus Velocity Tail Risk Hedged Large Cap ETF1
|
TRSK | ||||
Janus Small Cap Growth Alpha ETF ETF
|
JSML | ||||
Janus Small/Mid Cap Growth ETF
|
JSMD | ||||
1 Portfolios will not be operational until shareholder approval is obtained to
merge the existing series of ALPS ETF Trust with the same name into the Fund.
APPENDIX B
SERVICES
SERVICES
(a) The Fund grants to ALPS the exclusive right to receive all orders for purchases of
Creation Units of each Portfolio from participating parties (“Authorized Participants”) which have
entered into a participant agreement with ALPS and the transfer agent in accordance with the
registration statement (“Participant Agreements”) and to transmit such orders to the Fund in
accordance with the registration statement; provided, however, that nothing herein shall affect or
limit the right and ability of the Fund to accept deposit securities and related cash components
through or outside the clearing process, and as provided in and in accordance with the registration
statement. The Fund acknowledges that ALPS shall not be obligated to accept any certain number of
orders for Creation Units; provided, however, that ALPS shall accept all orders submitted to the
transfer agent in accordance with the registration statement and Participant Agreements unless the
Fund has instructed ALPS to reject the order for any reason specified in the registration
statement.
(b) ALPS agrees to act as agent of the Fund with respect to the continuous distribution of
Creation Units of the Fund as set forth in the registration statement and in accordance with the
provisions thereof. ALPS further agrees as follows: (a) ALPS shall enter into Participant
Agreements among Authorized Participants, ALPS, and the transfer agent in accordance with the
registration statement; (b) ALPS shall generate and transmit confirmations of Creation Unit
purchase order acceptances to the purchaser; (c) ALPS shall deliver copies of the prospectus to
purchasers of such Creation Units and upon request the statement of additional information; and (d)
ALPS shall maintain telephonic, facsimile and/or access to direct computer communications links
with the transfer agent.
(c) ALPS shall ensure that all direct requests for Prospectuses, Statements of Additional
Information, product descriptions and periodic fund reports, as applicable, are fulfilled. In
addition, ALPS shall arrange to provide the Listing Exchanges with copies of Prospectuses and
Statements of Additional Information and product descriptions to be provided to purchasers in the
secondary market. ALPS will generally make it known in the brokerage community that Prospectuses
and Statements of Additional Information and product descriptions are available, including by (i)
advising the Listing Exchanges on behalf of its member firms of the same, (ii) making such
disclosure in all marketing and advertising materials prepared and/or filed by ALPS with FINRA, and
(iii) as may otherwise be required by rule or regulation.
(d) (i) ALPS agrees to use all reasonable efforts, consistent with its other business, to
facilitate the purchase of Creation Units through Authorized Participants in accordance with the
procedures set forth in the prospectus, statement of additional information and the Participant
Agreements. Upon request, ALPS shall make available a list of Authorized Participants.
(ii) ALPS shall, at its own expense, execute selected or soliciting dealer agreements with
registered broker-dealers and other eligible entities providing for the purchase
of Creation Units of Shares of the Fund and related promotional activities, in the forms as
approved by the Board of Trustees of the Fund and in accordance with the Fund’s prospectus and
statement of additional information. The Fund shall not furnish or cause to be furnished to any
person or display or publish any information or materials relating to the Fund (including, without
limitation, promotional materials and sales literature, advertisements, press releases,
announcements, statements, posters, signs or other similar material), except such information and
materials that have been approved in writing by ALPS. Furthermore, ALPS shall clear and file all
advertising, sales, marketing and promotional materials of the Funds with FINRA.
(e) To the extent applicable, ALPS agrees to administer the Fund’s distribution plan on behalf
of the Fund. ALPS shall not be entitled to retain for its own account any amount accrued pursuant
to a distribution plan. ALPS shall, at its own expense, set up and maintain a system of recording
and payments for fees and reimbursement of expenses disseminated pursuant to this Agreement and any
other related agreements under the Fund’s Rule 12b-1 Plans and shall, pursuant to the 1940 Act,
report such payment activity under the Distribution Plan to the Fund at least quarterly.
(f) All activities by ALPS and its agents and employees which are primarily intended to result
in the sale of Creation Units shall comply with the registration statement, any and all exemptive
orders issued to the Fund or ALPS in connection with the offering of Fund Shares and Creation Units
under this Agreement, the instructions of the Board of Trustees of the Fund and all applicable
laws, rules and regulations including, without limitation, all rules and regulations made or
adopted pursuant to the 1940 Act by the SEC or any securities association registered under the 1934
Act, including FINRA and the Listing Exchange.
(g) Except as otherwise noted in the registration statement, the offering price for all
Creation Units of Shares will be the aggregate net asset value of the Shares per Creation Unit of
the Portfolio as determined in the manner described in the registration statement.
(h) If and whenever the determination of net asset value is suspended (including any events in
which the Fund’s registration statement is suspended or not effective) and until such suspension is
terminated, no further orders for Creation Units will be processed by ALPS except such
unconditional orders as may have been placed with ALPS before it had knowledge of the suspension.
In addition, the Fund reserves the right to suspend sales and ALPS’ authority to process orders for
Creation Units on behalf of the Fund, upon due notice to ALPS, if, in the judgment of the Fund, it
is in the best interests of the Fund to do so. Suspension will continue for such period as may be
determined by the Fund.
(i) ALPS is not authorized by the Fund to give any information or to make any representations
other than those contained in the registration statement or prospectus or contained in shareholder
reports or other material that may be prepared by or on behalf of the Fund for ALPS’ use. All
information provided by ALPS to the Fund for inclusion in a registration statement shall not
contain any untrue statements of material fact or omit state a material fact necessary to make a
statement, in light of the circumstances in which it was made, not misleading.
(j) To the extent applicable, the Board of Trustees shall approve the form of any Soliciting
Dealer Agreement to be entered into by ALPS.
(k) To the extent applicable, at the request of the Fund, ALPS shall enter into agreements, in
the form specified by the Fund, with participants in the system for book-entry of The Depository
Trust Company and the NSCC as described in the prospectus.
(l) ALPS agrees to make available, at the Fund’s request, one or more members of its staff to
attend Board meetings of the Fund in order to provide information with regard to the ongoing
distribution process and for such other purposes as may be requested by the Board of Trustees of
the Fund.
(m) ALPS will review all sales and marketing materials for compliance with applicable laws and
conditions of any applicable exemptive order, and file such materials with FINRA when necessary or
appropriate. All such sales and marketing materials must be approved, in writing, by ALPS prior to
use; such approval not to be unreasonably withheld.
