EXHIBIT 6(b)
DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
RETIREMENT SHARES OF JANUS ASPEN SERIES
This Agreement is made as of ______________, 1996, by and between Janus
Distributors, Inc. (the "Distributor"), a Colorado corporation, and
__________________________ (the "Service Provider"), a ____________________
corporation.
RECITALS
A. The Distributor serves as the distributor to a class of shares
designated the "Retirement Shares" of each series of Janus Aspen Series (the
"Trust"), an open-end management investment company registered under the
Investment Company Act of 1940 (the "1940 Act").
B. Service Provider desires to provide certain distribution and shareholder
services to certain participants ("Plan Participants") in participant directed
qualified pension or retirement plans ("Plans") in connection with their
investment in the Retirement Shares of the series of the Trust listed on Exhibit
A hereto (each a "Portfolio") and Distributor desires Service Provider to
provide such services, subject to the conditions of this Agreement.
C. Pursuant to Rule 12b-1 under the 1940 Act, the Retirement Shares of each
Portfolio have adopted a Distribution and Shareholder Servicing Plan (the "12b-1
Plan") which, among other things, authorizes the Distributor to enter into this
Agreement with organizations such as Service Provider and to compensate such
organizations out of each Portfolio's average daily net assets attributable to
the Retirement Shares.
D. The parties desire that Retirement Shares of the Portfolios be available
as investment options for Plan Participants.
AGREEMENT
1. Services of Service Provider
(a) The Service Provider shall provide any combination of the
following support services, as agreed upon by the parties from time to time, to
Plan Participants who invest in the Retirement Shares of the Portfolios:
printing and delivering prospectuses, statements of additional information,
shareholder reports, proxy statements and similar materials related to the
Retirement Shares to prospective and existing Plan Participants; providing
educational materials regarding the Retirement Shares; providing facilities to
answer questions from prospective and existing Plan Participants about the
Portfolios; receiving and answering correspondence; complying with federal and
state securities laws pertaining to the sale of Retirement Shares; and
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assisting Plan Participants in completing application forms and selecting
dividend and other account options.
(b) The Service Provider will provide such office space and equipment,
telephone facilities, and personnel as may be reasonably necessary or beneficial
in order to provide such services to Plan Participants.
(c) All orders for Retirement Shares are subject to acceptance or
rejection by the Trust in its sole discretion, and the Trust may, in its
discretion and without notice, suspend or withdraw the sale of Retirement Shares
of any Portfolio, including the sale of such Retirement Shares to the Service
Provider for the account of any Plan Participant or Participants.
(d) Service Provider shall not make the Retirement Shares available to
Plan Participants except in compliance with federal and state securities law and
subject to the terms of the prospectus for the Retirement Shares. Service
Provider shall be responsible for delivering the prospectus, statement of
additional information, shareholder reports, proxy statements, and similar
materials for the Retirement Shares to Plan Participants in accordance with
applicable law.
(e) The Service Provider will furnish to the Distributor, the Trust or
their designees such information as the Distributor may reasonably request, and
will otherwise cooperate with the Distributor in the preparation of reports to
the Trust's Board of Trustees concerning this Agreement, as well as any other
reports or filings that may be required by law.
2. Indemnification. The Service Provider shall indemnify Distributor, the
Trust, and their affiliates, directors, trustees, employees and shareholders for
any loss (including without limitation, litigation costs and expenses and
attorneys' and experts' fees) directly resulting from its negligent or willful
act, omission or error, or its breach of this Agreement. Such indemnification
shall survive termination of the Agreement.
3. Approval of Informational Materials. No person is authorized to make any
representations concerning the Trust, the Portfolios, the Retirement Shares, or
Distributor except those representations contained in the then-current
prospectus and statement of additional information for the Retirement Shares and
in such printed information as Distributor or the Trust may subsequently
prepare. Service Provider shall send all filings with state and federal agencies
and marketing materials in which the Trust or the Portfolios are named to
Distributor for review at least fifteen business days prior to its filing or
general release. No such materials shall be used if Distributor reasonably
objects to such use.
4. Maintenance of Records.
(a) Service Provider shall maintain and preserve all records as
required by law to be maintained and preserved in connection with providing the
services herein. Upon the
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reasonable request of Distributor or the Trust, Service Provider shall provide
Distributor, the Trust or the representative of either, copies of all such
records.
(b) Service Provider shall maintain and transmit to Distributor on a
daily basis (or a more infrequent basis as agreed by Distributor) information on
sales, redemptions and exchanges of Retirement Shares of each Portfolio by state
or jurisdiction of residence of Plan Participants and any other information
requested by Distributor to enable Distributor or its affiliates to properly
register or report the sale of the Retirement Shares under the securities,
licensing or qualification laws of the various states and jurisdictions. Such
information shall be provided in a form mutually agreeable to Distributor and
Service Provider.
5. Operations of the Portfolios. Nothing in this Agreement shall in any way
limit the authority of the Trust or Distributor to take such lawful action as
either may deem appropriate or advisable in connection with all matters relating
to the operation of the Portfolios and the sale of the Retirement Shares. The
parties acknowledge that nothing in this Agreement shall in any way preclude or
prevent the Trust's Board of Trustees from taking any actions deemed necessary
by such Trustees in furtherance of their fiduciary duties to the Trust and its
shareholders, which, among other things, may include the refusal to sell
Retirement Shares of any Portfolio to any person, or to suspend or terminate the
offering of the Retirement Shares of any Portfolio, if such action is required
by law or by regulatory authorities having jurisdiction or is, in the sole
discretion of the Trustees, acting in good faith and in light of the Trustees'
fiduciary duties under applicable law, necessary in the best interests of the
shareholders of any Portfolio.
6. Proprietary Rights. Janus Capital Corporation ("Janus Capital") is the
sole owner of the name and xxxx "Xxxxx." Neither the Service Provider, nor its
affiliates, employees, or agents shall, without prior written consent of Janus
Capital, use the name or xxxx "Xxxxx" or make representations regarding the
Trust, Distributor, Janus Capital, or their affiliates, or any products or
services sponsored, managed, advised, or administered by the Trust, Distributor,
Janus Capital or their affiliates, except those contained in the then current
prospectus and the then current printed sales literature for the Retirement
Shares of the Portfolios. Upon termination of this Agreement for any reason, the
Service Provider shall immediately cease all use of any Xxxxx xxxx.
7. Fees. In consideration of Service Provider's performance of the services
described in this Agreement, Distributor shall pay to the Service Provider a
monthly fee ("Distribution Fee") calculated as follows: the average aggregate
amount invested in each month in the Retirement Shares of each Portfolio by
Plans whose Plan Participants receive services hereunder by the Service Provider
is multiplied by a pro-rata fee factor. The pro-rata fee factor is calculated
by: (a) dividing the per annum factor set forth on Exhibit A for the Retirement
Shares of each Portfolio by the number of days in the applicable year, and (b)
multiplying the result by the actual number of days in the applicable month. The
average aggregate amount invested over a one-month period shall be computed by
totalling the aggregate investment by Plans whose Plan Participants receive
services hereunder by the Service Provider (share net asset value multiplied
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by total number of shares held) on each calendar day during the month and
dividing by the total number of calendar days during such month.
Distributor will calculate the fee at the end of each month and will make
such reimbursement to the Service Provider. The reimbursement check will be
accompanied by a statement showing the calculation of the monthly amounts
payable by Distributor and such other supporting data as may be reasonably
requested by the Service Provider.
8. Non-Exclusivity. Each of the parties acknowledges and agrees that this
Agreement and the arrangement described herein are intended to be non-exclusive
and that each of the parties is free to enter into similar agreements and
arrangements with other entities.
9. Representations, Warranties and Agreements. The Service Provider
represents, warrants, and covenants that:
(a) The Service Provider will comply in all material respects with all
applicable laws, rules and regulations;
(b) The Service Provider is authorized by the Plans to enter into this
Agreement;
(c) The Service Provider is registered as a broker and dealer pursuant
to the Securities Exchange Act of 1934 (the "Exchange Act") and any applicable
state securities laws or is not required to be registered in order to enter into
and perform the services set forth in this Agreement;
(d) The performance of the duties and obligations and provision of
services by Service Provider as described in this Agreement and the receipt of
the fee provided in this Agreement will not violate federal or state banking
law, the Employment Retirement Income Security Act of 1974, as amended, the
Internal Revenue Code of 1986, as amended, federal or state securities laws, or
any other applicable law;
(e) The fee arrangement under this Agreement will be disclosed to a
Plan fiduciary unrelated to the Service Provider, prior to the Service
Provider's receipt of fees hereunder; and
(f) Neither the Service Provider, nor any affiliate, makes investment
recommendations to any of the Plans or Plan Participants.
(g) Each Plan meets the requirements for qualified plan status under
Section ___________ of the Internal Revenue Code of 1986, as amended, and the
Service Provider reasonably believes each Plan will continue to meet these
requirements. Service Provider will immediately notify the Distributor if the
Plan loses or is at risk of losing this status.
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10. Termination.
(a) Unless sooner terminated with respect to any Portfolio, this
Agreement will continue with respect to a Portfolio until June 16, 1998, and
thereafter will continue automatically for successive annual periods ending on
June 16 of each year, provided the continuance of a form of this Agreement is
specifically approved at least annually by the vote of a majority of the members
of the Board of Trustees of the Trust who are not "interested persons" (as such
term is defined in the 0000 Xxx) and who have no direct or indirect financial
interest in the 12b-1 Plan relating to such Portfolio or any agreement relating
to such 12b-1 Plan, including this Agreement, cast in person at a meeting called
for the purpose of voting on such approval.
(b) This Agreement will automatically terminate with respect to a
Portfolio in the event of its assignment (as such term is defined in the 0000
Xxx) with respect to such Portfolio. This Agreement may be terminated with
respect to any Portfolio by the Distributor or by the Service Organization,
without penalty, upon 60 days' prior written notice to the other party. This
Agreement may also be terminated with respect to any Portfolio at any time
without penalty by the vote of a majority of the members of the Board of
Trustees of the Trust who are not "interested persons" (as such term is defined
in the 0000 Xxx) and who have no direct or indirect financial interest in the
12b-1 Plan relating to such Portfolio or any agreement relating to such Plan,
including this Agreement, or by a vote of a majority of the Retirement Shares of
such Portfolio on 60 days' written notice.
(c) In addition, either party may terminate this Agreement immediately
if at any time it is determined by any federal or state regulatory authority
that compensation to be paid under this Agreement is in violation of or
inconsistent with any federal or state law.
11. Miscellaneous.
(a) No modification of any provision of this Agreement will be binding
unless in writing and executed by the parties. No waiver of any provision of
this Agreement will be binding unless in writing and executed by the party
granting such waiver.
(b) This Agreement shall be binding upon and shall inure to the
benefit of the parties and their respective successors and assigns; provided,
however that neither this Agreement nor any rights, privileges, duties, or
obligations of the parties may be assigned by either party without the written
consent of the other party or as expressly contemplated by this Agreement.
(c) This Agreement shall be governed by and interpreted in accordance
with the laws of the State of Colorado, exclusive of conflicts of laws.
(d) This Agreement may be executed in several counterparts,
each of which shall be an original but all of which together shall constitute
one and the same instrument.
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(e) All notices and other communications to either Service Provider or
Distributor will be duly given if mailed or faxed to the address set forth
below, or to such other address as either party may provide in writing to the
other party.
If to Distributor:
Janus Distributors, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
If to the Service Provider:
JANUS DISTRIBUTORS, INC.
By: By:
Name: Name:
Title: Title:
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EXHIBIT A TO DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
Name of Portfolio Fee Factor*
*Shall not exceed 0.25%
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