EXHIBIT 8(d)
AMENDED AND RESTATED TRANSFER AGENCY AGREEMENT
This AMENDED AND RESTATED TRANSFER AGENCY AGREEMENT (the "Agreement")
is made as of June 18, 2002, by and between Janus Adviser Series, a Delaware
business trust (the "Trust"), which offers each of its portfolios in one or more
classes of shares, and Janus Services LLC, a Delaware limited liability company
("JS").
The Trust desires to appoint JS as its transfer agent and JS desires to
accept such appointment.
1. Appointment. Subject to the conditions set forth in this Agreement,
the Trust hereby appoints JS as its transfer agent and JS hereby accepts such
appointment with respect to all classes of the Trust. If the Trustees of the
Trust hereafter determine to issue additional classes of shares of a portfolio,
JS agrees that it will act as transfer agent for the shares so classified on the
terms set forth in this Agreement.
2. Services. JS agrees that it will perform or arrange for the
performance by others of all of the customary services of a transfer agent of an
investment company in accordance with the policies and practices of the Trust as
disclosed in its registration materials or otherwise communicated to JS from
time to time, including, without limitation, the following: recording the
ownership, transfer, conversion, and cancellation of ownership of shares of the
Trust on the books of the Trust; establishing and maintaining shareholder
accounts; preparing shareholder meeting lists, mailing proxies, receiving and
tabulating proxies; mailing shareholder reports and prospectuses; recording
reinvestments of dividends and distributions in Trust shares; preparing and
mailing confirmation forms to shareholders and dealers for purchases and
redemptions of Trust shares and other transactions for which confirmations are
required; cooperating with insurance companies, qualified plans, broker-dealers
and financial intermediaries who represent shareholders of the Trust; and
undertaking certain anti-money laundering responsibilities as detailed in Janus'
Anti-Money Laundering Program as approved by the Trustees pursuant to the USA
PATRIOT Act.
3. Records. JS shall maintain such books and records relating to
transactions effected by JS pursuant to this Agreement as are required by the
Investment Company Act of 1940 (the "1940 Act"), or by rules or regulations
thereunder, to be maintained by the Trust or its transfer agent with respect to
such transactions. JS shall preserve, or cause to be preserved, any such books
and records for the period and in the manner prescribed by any such law, rule,
or regulation, and shall furnish the Trust such information as to such
transactions and at such times as may be reasonably required by it to comply
with applicable laws and regulations. To the extent required by the 1940 Act and
the rules and regulations thereunder, JS agrees that all records maintained by
JS relating to the services performed by JS pursuant to this Agreement are the
property of the Trust and will be preserved and will be surrendered promptly to
the Trust upon request.
4. Share Registration. All requisite steps will be taken by the Trust
from time to time when and as necessary to register the Trust's shares for sale
with the SEC and in all states in which the Trust's shares shall at the time be
offered for sale and require registration.
5. Compensation and Expenses. Each class of the Trust shall reimburse
JS for out-of-pocket expenses incurred by JS in connection with its performance
of services rendered under this Agreement. JS shall xxxx the appropriate class
of the Trust as soon as practicable after the end of each calendar month for the
expenses for that month. The class shall promptly pay to JS the amount of such
billing. In addition, JS may receive from the Class I Shares of the Trust a fee
at an annual rate of up to .25% of the average daily net assets of the Class I
Shares of the Trust, to compensate JS for providing, or arranging for the
provision of recordkeeping, subaccounting and administrative services to
retirement or pension plan participants or other underlying investors investing
through institutional channels.
6. Indemnification.
a. JS shall not be responsible for, and the Trust shall hold
harmless and indemnify JS from and against, any loss by or liability to the
Trust or a third party (including reasonable attorney's fees and costs) in
connection with any claim or suit asserting any such liability arising out of or
attributable to actions taken or omitted by JS or any of its agents pursuant to
this Agreement, unless JS's actions or omissions constitute gross negligence or
willful misconduct. The Trust will be responsible for, and will have the right
to conduct or control the defense of, any litigation asserting liability against
which JS is indemnified hereunder. JS will not be under any obligation to
prosecute or defend any action or suit with respect to the agency relationship
hereunder, which, in its opinion, may involve it in expense or liability for
which it is indemnified hereunder, unless the Trust will, as often as requested,
furnish JS with reasonable, satisfactory security and indemnity against such
expense or liability.
b. JS will hold harmless and indemnify the Trust from and
against any loss or liability (including reasonable attorney's fees and costs)
arising out of any failure by JS to comply with the terms of this Agreement due
to JS's gross negligence or willful misconduct.
7. Termination of Agreement.
a. This Agreement may be terminated by either party upon
receipt of sixty (60) days' written notice from the other party.
b. The Trust, in addition to any other rights and remedies,
shall have the right to terminate this Agreement immediately upon the occurrence
at any time of any of the following events:
(1) Any interruption or cessation of operations of
JS or its assigns that materially interferes with the business operation of the
Trust;
(2) The bankruptcy of JS or its assigns or the
appointment of a receiver for JS or its assigns;
(3) Any merger, consolidation, or sale of
substantially all the assets of JS or its assigns;
(4) Failure by JS or its assigns to perform its
duties in accordance with this Agreement, which failure materially adversely
affects the business operations of the Trust and which failure continues for ten
(10) days after receipt of written notice from JS.
c. In the event of termination, each class of the Trust will
promptly pay JS all amounts due to JS hereunder.
2
d. In the event of termination, JS will use its best efforts
to transfer the books and records of the Trust to the designated successor agent
and to provide other information relating to its services provided hereunder for
reasonable compensation therefore.
8. Assignment.
a. Neither this Agreement nor any rights or obligations
hereunder may be assigned by either party without the written consent of the
other; provided, however, that any such assignment shall be subject to the prior
written approval of the Trust and no such assignment will relieve JS of any of
its obligations hereunder. JS may, however, employ agents to assist it in
performing its duties hereunder.
b. This Agreement will inure to the benefit of and be binding
upon the parties and their respective successors and assigns.
9. Governing Law. This Agreement shall be governed by the laws of the
State of Colorado.
10. Amendments. No provisions of this Agreement may be amended or
modified in any manner, except by a written agreement properly authorized and
executed by both parties hereto.
11. 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 or
holder of shares of beneficial interest of the Trust shall be personally liable
for any of such liabilities.
JANUS ADVISER SERIES
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
JANUS SERVICES LLC
By: /s/ Xxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxx
Title: President
3
