Exhibit 5(a)
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (THE "AGREEMENT") IS MADE AS OF THE 3RD day of
April, 2000, by and between Janus Adviser Series, a business trust organized and
existing under the laws of the State of Delaware, ("the Trust") on behalf of
each of its portfolios, whether now existing or hereafter created (each a "Fund"
or collectively the "Funds"), and Janus Distributors, Inc., a corporation
organized and existing under the laws of the State of Colorado ("Distributor" or
"JDI").
WITNESSETH:
WHEREAS, the Trust is or will be engaged in business as an open-end
management investment company registered under the Investment Company Act of
1940, as amended (the "1940 Act"); and
WHEREAS, the Distributor is or will be registered as a broker-dealer under
the Securities Exchange Act of 1934, as amended (the "1934 Act") and the laws of
each state or jurisdiction in which the Distributor engages in business to the
extent such law requires, and is a member of the National Association of
Securities Dealers, Inc. (the "NASD"), (such registrations and membership are
referred to collectively as the "Registrations"); and
WHEREAS, the Trust has adopted on behalf of the initial class of shares of
each Fund a Distribution and Shareholder Servicing Plan pursuant to Rule 12b-1
under the 1940 Act; and
WHEREAS, the Trust desires the Distributor to act as the underwriter for
the public offering of each Fund;
NOW, THEREFORE, in consideration of the premises and the mutual promises
hereinafter set forth, the parties hereto agree as follows:
1. APPOINTMENT. The Trust appoints JDI to act as distributor of the shares.
2. DELIVERY OF FUND DOCUMENTS. The Trust has furnished the Distributor with
properly certified or authenticated copies of each of the following in effect on
the date hereof and shall furnish the Distributor from time to time properly
certified or authenticated copies of all amendments or supplements thereto:
(a) Trust Instrument;
(b) Bylaws; and
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(c) Resolutions of the Trustees (hereinafter referred to as the
"Trustees") selecting the Distributor as distributor and approving
this form of agreement and authorizing its execution.
The Trust shall furnish the Distributor promptly with copies of any
registration statements filed by it with the Securities and Exchange Commission
(the "SEC") under the Securities Act of 1933, as amended, (the "1933 Act") or
the 1940 Act, together with any financial statements and exhibits included
therein, and all amendments or supplements thereto hereafter filed.
The Trust shall also furnish the Distributor with such other certificates
or documents as the Distributor may from time to time, in its discretion,
reasonably deem necessary or appropriate in order to properly perform its duties
under this Agreement.
3. SOLICITATION OF ORDERS FOR PURCHASE OF SHARES.
(a) Subject to the provisions of Paragraphs 4 and 7 hereof, and to such
minimum purchase requirements as may from time to time be indicated in the
Prospectus or Statement of Additional Information of the shares of each Fund,
the Distributor is authorized to solicit, as agent on behalf of the Trust,
unconditional orders for purchases of each Fund's shares authorized for issuance
and registered under the 1933 Act, provided that:
(1) The Distributor shall act solely as a disclosed agent on behalf of and
for the account of the Trust;
(2) The Distributor shall confirm or arrange with the transfer agent for
the shares to confirm all purchases of the shares. Such confirmation
shall conform to the requirements of Rule 10b-10 under the 1934 Act
and shall clearly state that the Distributor is acting as agent in the
transaction;
(3) The Distributor shall have no liability for payment for purchases of
shares it sells as agent;
(4) Each order to purchase shares of a Fund received by the Distributor
shall be subject to acceptance by an officer of the Trust and entry of
the order on such Fund's records or shareholder accounts and is not
binding until so accepted and entered; and
(5) With respect to the initial class of shares of each Fund, the
Distributor may appoint sub-agents or distribute through dealers
(pursuant to the Distribution and Shareholder Servicing Agreement
applicable to that class, a form of which is attached hereto as
Exhibit A), the Distributor's own sales representatives or otherwise
as the Distributor may determine from time to time.
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The purchase price of a Fund's shares to the public shall be the public
offering price described in Paragraph 6 hereof.
(b) In consideration of the rights granted to the Distributor under this
Agreement, the Distributor will use its best efforts (but only in states and
jurisdictions in which the Distributor may lawfully do so) to solicit from
investors unconditional orders to purchase shares of each Fund. The Trust shall
make available to the Distributor without cost to the Distributor the currently
effective Prospectus and Statement of Additional Information for the shares of
each Fund and all information, financial statements and other papers that the
Distributor requires for use in connection with the distribution of shares. The
Trust shall provide such materials in the form of camera ready copies, computer
diskettes, or other form reasonably requested by Distributor, to enable
Distributor to provide one copy or diskette to each shareholder of record (it
being understood that the shareholders of record shall be responsible for
providing copies of such materials to the beneficial owners in accordance with
applicable law).
4. SOLICITATION OF ORDERS TO PURCHASE SHARES BY FUND. The rights granted to
the Distributor shall be non-exclusive in that the Trust reserves the right to
otherwise solicit purchases from, and sell shares to, investors, including
without limitation the right to issue shares in connection with the merger or
consolidation of any other investment company, trust or personal holding company
with a Fund, or a Fund's acquisition, by the purchase or otherwise, of all or
substantially all of the assets of an investment company, trust or personal
holding company, or substantially all of the outstanding shares or interests of
any such entity.
5. COMPENSATION AND EXPENSES. The Trust shall pay all charges of its
transfer, shareholder recordkeeping, dividend disbursing and redemption agents,
if any; all expenses of preparation, printing and mailing of confirmations; all
expenses of preparation and printing of annual or more frequent revisions of
each Fund's Prospectus and Statement of Additional Information and of supplying
copies thereof to shareholders; all expenses of registering and maintaining the
Registrations of the Trust under the 1940 Act and the sale of the Trust's shares
under the 1933 Act; all expenses of qualifying and maintaining qualifications of
each Fund and of the shares for sale under securities laws of various states or
other jurisdictions and of registration and qualification of each Fund under all
laws applicable to the Trust or its business activities. The Distributor may
receive from the Trust any amounts authorized for payment to the Distributor out
of the Distribution and Shareholder Servicing Plan. The Distributor may use such
payments, in its discretion, to compensate dealers, third party service
providers, or other entities who provide distribution-related services to the
extent permitted by the Distribution and Shareholder Servicing Plan.
6. PUBLIC OFFERING PRICE. All solicitations by the Distributor pursuant to
this Agreement shall be for orders to purchase shares of a Fund at the public
offering price. The public offering price for each accepted subscription for a
Fund's shares will be the net asset value per share next determined by the Trust
after it accepts such subscription. The net asset value per share of the shares
shall be determined in the manner provided in the Trust's Trust Instrument as
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now in effect or as it may be amended, and as reflected in the then current
Prospectus and Statement of Additional Information covering the shares.
7. SUSPENSION OF SALES. If and whenever the determination of a Fund's net
asset value is suspended and until such suspension is terminated, no further
orders for shares shall be accepted by the Trust except such unconditional
orders placed with the Trust and accepted by it before the suspension. In
addition, the Trust reserves the right to suspend sales of shares of a Fund if,
in the judgment of the Trustees, it is in the best interest of the Fund to do
so, such suspension to continue for such period as may be determined by the
Trustees; and in that event, (i) at the direction of the Trust, the Distributor
shall suspend its solicitation of orders to purchase shares of such Fund until
otherwise instructed by the Trust and (ii) no orders to purchase shares of such
Fund shall be accepted by the Trust while such suspension remains in effect
unless otherwise directed by its Trustees.
8. AUTHORIZED REPRESENTATIONS. The Distributor is not authorized by the
Trust to give on behalf of any Fund any information or to make any
representations in connection with the sale of shares other than the information
and representations contained in such Fund's registration statement filed with
the SEC under the 1933 Act and/or the 1940 Act, covering shares, as such
registration statement or such Fund's Prospectus or Statement of Additional
Information may be amended or supplemented from time to time, or contained in
shareholder reports or other material that may be prepared by or on behalf of
such Fund or approved by such Fund for the Distributor's use.
9. REGISTRATION OF ADDITIONAL SHARES. The Trust hereby agrees to register
an indefinite number of shares pursuant to Rule 24f-2 under the 1940 Act. The
Trust will, in cooperation with the Distributor, take such action as may be
necessary from time to time to qualify the shares of each Fund (so registered or
otherwise qualified for sale under the 1933 Act), in any state or jurisdiction
mutually agreeable to the Distributor and the Trust, and to maintain such
qualification; provided, however, that nothing herein shall be deemed to prevent
the Trust from registering the shares without approval of the Distributor in any
state it deems appropriate.
10. CONFORMITY WITH LAW. The Distributor agrees that in soliciting orders
to purchase shares it shall duly conform in all respects with applicable federal
and state laws and with the rules and regulations of the NASD. The Distributor
will use its best efforts to maintain its Registrations in good standing during
the term of this Agreement and will promptly notify the Trust in the event of
the suspension or termination of any of the Registrations.
11. INDEPENDENT CONTRACTOR. The Distributor shall be an independent
contractor and neither the Distributor, nor any of its officers, directors,
employees, or representatives is or shall be an employee of the Trust in the
performance of the Distributor's duties hereunder. The Distributor shall be
responsible for its own conduct and the employment, control, and conduct of its
agents and employees and for injury to such agents or employees or to others
through its agents and employees and agrees to pay or to insure that persons
other than the Trust will pay all employee taxes due with respect to the
activities of its agents and employees.
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12. INDEMNIFICATION. The Distributor agrees to indemnify and hold harmless
the Trust and each of the Trustees and its officers, employees and
representatives and each person, if any, who controls the Trust within the
meaning of Section 15 of the 1933 Act against any and all losses, liabilities,
damages, claims and expenses (including the reasonable costs of investigating or
defending any alleged loss, liability, damage, claim or expense and reasonable
legal counsel fees incurred in connection therewith) to which the Trust or such
Trustees, officers, employees, representatives, or controlling person or persons
may become subject under the 1933 Act, under any other statute, at common law,
or otherwise, arising out of the acquisition of any shares of any Fund by any
person which (i) may be based upon any wrongful act by the Distributor or any of
the Distributor's directors, officers, employees or representatives, or (ii) may
be based upon any untrue statement or alleged untrue statement of a material
fact contained in a registration statement, Prospectus, Statement of Additional
Information, shareholder report or other information covering shares of such
Fund filed or made public by the Trust or any amendment thereof or supplement
thereto or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, if such statement or omission was made in reliance upon information
furnished to such Fund by the Distributor in writing. In no case (i) is the
Distributor's indemnity in favor of the Trust, or any person indemnified, to be
deemed to protect the Trust or such indemnified person against any liability to
which the Trust or such person would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of its or such
person's duties or by reason of its or such person's reckless disregard of its
or such person's obligations and duties under this Agreement, or (ii) is the
Distributor to be liable under its indemnity agreement contained in this
paragraph with respect to any claim made against the Trust or any person
indemnified unless the Trust or such person, as the case may be, shall have
notified the Distributor in writing of the claim within a reasonable time after
the summons, or other first written notification, giving information of the
nature of the claim served upon the Trust or upon such person (or after the
Trust or such person shall have received notice of such service on any
designated agent). However, failure to notify the Distributor of any such claim
shall not relieve the Distributor from any liability that the Distributor may
have to the Trust or any person against whom such action is brought otherwise
than on account of the Distributor's indemnity agreement contained in this
Paragraph.
The Distributor shall be entitled to participate, at its own expense, in
the defense, or, if Distributor so elects, to assume the defense of any suit
brought to enforce any such claim but, if the Distributor elects to assume the
defense, such defense shall be conducted by legal counsel chosen by the
Distributor and satisfactory to the persons indemnified who are defendants in
the suit. In the event that the Distributor elects to assume the defense of any
such suit and retain such legal counsel, persons indemnified who are defendants
in the suit shall bear the fees and expenses of any additional legal counsel
retained by them. If the Distributor does not elect to assume the defense of any
such suit, the Distributor will reimburse persons indemnified who are defendants
in such suit for the reasonable fees of any legal counsel retained by them in
such litigation.
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The Trust agrees to indemnify and hold harmless the Distributor and each of
its directors, officers, employees, and representatives and each person, if any,
who controls the Distributor within the meaning of Section 15 of the 1933 Act
against any and all losses, liabilities, damages, claims or expenses (including
the reasonable costs of investigating or defending any alleged loss, liability,
damage, claim or expenses and reasonable legal counsel fees incurred in
connection therewith) to which the Distributor or such of its directors,
officers, employees, representatives or controlling person or persons may become
subject under the 1933 Act, under any other statute, at common law, or otherwise
arising out of the acquisition of any shares by any person which (i) may be
based upon any wrongful act by the Trust or any of the Trustees, or the Trust's
officers, employees or representatives other than the Distributor, or (ii) may
be based upon any untrue statement or alleged untrue statement of a material
fact contained in a registration statement, Prospectus, Statement of Additional
Information, shareholder report or other information covering shares filed or
made public by the Trust or any amendment thereof or supplement thereto, or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading unless
such statement or omission was made in reliance upon information furnished by
the Distributor to the Trust. In no case (i) is the Trust's indemnity in favor
of the Distributor or any person indemnified to be deemed to protect the
Distributor or such indemnified person against any liability to which the
Distributor or such indemnified person would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance of its or
such person's duties or by reason of its or such person's reckless disregard of
its or such person's obligations and duties under this Agreement, or (ii) is the
Trust to be liable under its indemnity agreement contained in this Paragraph
with respect to any claim made against the Distributor or any person indemnified
unless the Distributor, or such person, as the case may be, shall have notified
the Trust in writing of the claim within a reasonable time after the summons, or
other first written notification, giving information of the nature of the claim
served upon the Distributor or upon such person (or after the Distributor or
such person shall have received notice of such service on any designated agent).
However, failure to notify the Trust of any such claim shall not relieve the
Trust from any liability which the Trust may have to the Distributor or any
person against whom such action is brought otherwise than on account of the
Trust's indemnity agreement contained in this Paragraph.
The Trust shall be entitled to participate, at its own expense, in the
defense or, if the Trust so elects, to assume the defense of any suit brought to
enforce such claim but, if the Trust elects to assume the defense, such defense
shall be conducted by legal counsel chosen by the Trust and satisfactory to the
persons indemnified who are defendants in the suit. In the event that the Trust
elects to assume the defense of any such suit and retain such legal counsel, the
persons indemnified who are defendants in the suit shall bear the fees and
expenses of any additional legal counsel retained by them. If the Trust does not
elect to assume the defense of any such suit, the Trust will reimburse the
persons indemnified who are defendants in such suit for the reasonable fees and
expenses of any legal counsel retained by them in such litigation.
13. DURATION AND TERMINATION OF THIS AGREEMENT. This Agreement shall become
effective as of the date first written above and unless terminated as provided
herein, shall remain
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in effect through July 1, 2001, and from year to year thereafter with respect to
each class of shares of each Fund, but only so long as such continuance is
specifically approved at least annually (a) by a vote of a majority of the
Trustees who are not parties to this Agreement or interested persons of any such
party, voting in person at a meeting called for the purpose of voting on such
approval, and (b) by the vote of either a majority of the Trustees or a majority
of the outstanding shares of the Fund. If the continuance of this Agreement is
not approved as to a class of shares of a Fund or a Fund as a whole, the
Distributor may continue to render to that class of shares or Fund the services
described herein in the manner and to the extent permitted by the 1940 Act and
the rules and regulations thereunder, and this Agreement shall continue with
respect to a class of shares of the Funds, or those Funds as a whole that have
approved its continuance. This Agreement may be terminated with respect to a
class of shares of a Fund or a Fund as a whole, without the payment of any
penalty, on 60 days' written notice, (a) by a vote of a majority of the Trustees
or by a vote of a majority of the outstanding voting securities of such class of
shares of the Fund or of the Fund, (b) in the case of the class of shares of a
Fund, by a vote of a majority of the Trustees who are not interested persons of
the Trust and have no direct or indirect financial interest in the operation of
the Distribution and Shareholder Servicing Plan for such shares or in any
agreements related to such Distribution and Shareholder Servicing Plan (c) by
the Distributor. Without prejudice to any other remedies of the Trust, the Trust
may terminate this Agreement at any time immediately on written notice in the
event of the Distributor's failure to fulfill any of its obligations hereunder,
including the termination or suspension of any of the Registrations. This
Agreement will automatically terminate in the event of its assignment.
In interpreting the provisions of this Paragraph 13, the definitions
contained in Section 2(a) of the 1940 Act (particularly the definitions of
"interested person," "assignment," and "majority of the outstanding voting
securities") shall be applied.
14. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement may be
changed, waived, discharged, or terminated orally, but only by an instrument in
writing signed by each party against which enforcement of the change, waiver,
discharge, or termination is sought. If the Trust should at any time deem it
necessary or advisable in the best interests of a Fund or class that any
amendment of this Agreement be made in order to comply with the recommendations
or requirements of the SEC or any other governmental authority or to obtain any
advantage under state or Federal or tax laws and notifies the Distributor of the
form of such amendment, and the reasons therefore, and if the Distributor should
decline to assent to such amendment, the Trust may terminate this Agreement as
to that Fund or class forthwith. If the Distributor should at any time request
that a change be made in the Trust's Trust Instrument or Bylaws or in its
methods of doing business, or in the registration statement, the Prospectus or
the Statement of Additional Information of any Fund, in order to comply with any
requirements of Federal or state law or regulations of the SEC, or of a national
securities association of which the Distributor is or may be a member, relating
to the sale of shares, and the Trust should not make such necessary changes
within a reasonable time, the Distributor may terminate this Agreement as to
that Fund or class forthwith.
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15. LIMITATION OF PERSONAL LIABILITY. The parties to this Agreement
acknowledge and agree that all liabilities of the Trust arising, directly or
indirectly, under this Agreement, of any and every nature whatsoever, shall be
satisfied solely out of the assets of the Trust and that no Trustee, officer,
employee or agent, or holder of shares of beneficial interest of the Trust,
whether past, present or future, shall be personally liable for any of such
liabilities.
16. NOTIFICATION BY THE TRUST. The Trust agrees to advise the Distributor
immediately:
(a) of any request by the SEC for amendments to the Trust's
Registration Statement insofar as it relates to the shares of any of the Funds,
the Prospectus or the Statement of Additional Information or for additional
information;
(b) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of the Trust's Registration Statement insofar as it
relates to the shares of any of the Funds, the Prospectus or the Statement of
Additional Information or the initiation of any proceeding for that purpose;
(c) of the occurrence of any material event which makes untrue any
statement made in the Trust's Registration Statement insofar as it relates to
the shares of any of the Funds, the Prospectus or the Statement of Additional
Information or which requires the making of a change in order to make the
statements therein not misleading; and
(d) of all actions of the SEC with respect to any amendments to the
Trust's Registration Statement insofar as they are related to the shares of any
of the Funds, the Prospectus or the Statement of Additional Information which
may from time to time be filed with the SEC under the 1933 Act.
17. MISCELLANEOUS. The captions in this Agreement are included for
convenience of reference only, and in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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18. NOTICE. Any notice required or permitted to be given by a party to this
Agreement or to any other party hereunder shall be deemed sufficient if
delivered in person or sent by registered or certified mail, postage prepaid,
addressed by the party giving notice to each such other party at the address
provided below or to the last address furnished by each such other party to the
party giving notice.
If to the Trust: 000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Secretary
If to the Distributor: 000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Secretary
IN WITNESS WHEREOF, the parties have executed this Agreement.
ATTEST: JANUS ASPEN SERIES
BY:
Xxxxxx X. Xxxxxx
President
ATTEST: JANUS DISTRIBUTORS, INC.
BY:
Xxxxxx Xxxxxx Xxxxx
Vice President
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