Exhibit (e)(7)
FORM OF AMENDED AND RESTATED DISTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED DISTRIBUTION AGREEMENT (the "Agreement"), made as
of the 16th day of February, 2010, by and between Janus Investment Fund, a
business trust organized and existing under the laws of the Commonwealth of
Massachusetts (hereinafter called "JIF" or the "Trust"), and Janus Distributors
LLC, a limited liability company organized and existing under the laws of the
State of Delaware (hereinafter called the "Distributor" or "Janus
Distributors"). This Agreement applies separately to each portfolio of JIF
whether now existing or hereafter created.
WITNESSETH:
WHEREAS, JIF is 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 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 Financial Industry Regulatory
Authority ("FINRA") (such registrations and membership are referred to
collectively as the "Registrations"); and
WHEREAS, JIF and the Distributor are parties to an Amended and Restated
Distribution Agreement dated June 18, 2002 as amended, and wish to amend and
restate such agreement in connection with the addition of multiple share classes
as part of the merger of the Janus Adviser Series into JIF;
WHEREAS, JIF desires the Distributor to act as the underwriter for the
public offering of the Class D Shares, Class L Shares, Class T Shares, Class A
Shares, Class C Shares, Class R Shares, Class S Shares and Class I Shares of
beneficial interest (collectively, "Shares") of each of JIF's portfolios
offering such Shares, whether now existing or hereafter created (hereinafter
each called a "Fund" and collectively the "Funds").
WHEREAS, the Trust has adopted on behalf of each of the Class A Shares,
Class C Shares, Class S Shares and Class R Shares of each Fund offering such
Shares a separate Distribution and Shareholder Servicing Plan pursuant to Rule
12b-1 under the 1940 Act; and
NOW, THEREFORE, in consideration of the premises and the mutual promises
hereinafter set forth, the parties hereto agree as follows:
1. Appointment. JIF appoints Janus Distributors to act as distributor of
its Shares.
2. Delivery of Fund Documents. JIF 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) Agreement and Declaration of Trust;
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(b) By-Laws; and
(c) Resolutions of the Board of Trustees (hereinafter referred to as the
"Trustees") selecting the Distributor as distributor and approving
this form of agreement and authorizing its execution.
JIF 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.
JIF 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 each
Fund's Prospectus or Statement of Additional Information, the Distributor is
authorized to solicit, as agent on behalf of JIF, 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 JIF;
(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 JIF
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 Shares of each Fund, the Distributor may
appoint sub-agents or distribute through dealers (pursuant to the
Intermediary Services Agreement applicable to that class), the
Distributor's own sales representatives or otherwise as the
Distributor may determine from time to time.
The purchase price of a Fund's Shares to the public shall be the
public offering price described in Paragraph 6 hereof.
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(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. JIF shall make
available to the Distributor without cost to the Distributor such number of
copies of each Fund's currently effective Prospectus and Statement of Additional
Information and copies of all information, financial statements and other papers
that the Distributor requires for use in connection with the distribution of
Shares.
4. Solicitation of Orders to Purchase Shares by Fund. The rights granted to
the Distributor shall be non-exclusive in that JIF 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. Sales Commission, Compensation and Expenses.
(a) Except as otherwise agreed, 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.
(b) The Distributor may receive from the Trust any amounts authorized
for payment to the Distributor out of the applicable Distribution and
Shareholder Servicing Plans, if any, for the Shares. The Distributor may use
such payments, in its discretion, to compensate dealers, third party service
providers, or other entities who provide distribution and/or services to the
extent permitted by the Distribution and Shareholder Servicing Plans. The
Distributor may retain some or all of such payments pursuant to the Distribution
and Shareholder Servicing Plans in certain circumstances, including when there
is no broker of record or when certain qualification standards have not been met
by the broker of record.
(c) The Distributor shall be entitled to impose a charge on the sale
of the Class A Shares in the amount set forth, if any, in the then current
prospectus and statements of additional information for such Class. Such sales
charges (subject to any reductions or eliminations of sales charges as set forth
in the then current prospectus and statements of additional information for such
Class) shall be an amount mutually agreed upon by the Distributor and the Trust
and equal to the difference between the net asset value and the public offering
price of Class A Shares or Class C Shares, if any. The Distributor may re-allow
sub-agents or dealers such sales charges, including payment exceeding the total
sales charges, as the Distributor shall deem advisable so long as any such sales
charges and additional compensation are set forth in the then current prospectus
and statements of additional information of such Class to the extent required by
all applicable securities laws. The Distributor may retain a contingent deferred
sales charge, if applicable, on Class A Shares and Class C
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Shares redeemed by the holders thereof, in the amount and on the terms set forth
in the then current prospectus and statements of additional information for
those Classes.
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 set forth in the then current prospectus and statements of
additional information for the Shares. 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, plus, with
respect to Class A Shares, an initial sales charge equal to a percentage of the
net asset value of the Shares, if applicable. Class A Shares and Class C Shares
may also be sold subject to a contingent deferred sales charge, in such amount
and on such terms as set forth in the then current prospectus and statements of
additional information for Class A Shares and Class C Shares. The net asset
value per share of the Shares shall be determined in the manner provided in the
Trust's Declaration of Trust as now in effect or as it may be amended from time
to time, and as reflected in the then current prospectus and statements 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 JIF except such unconditional orders
placed with JIF and accepted by it before the suspension. In addition, JIF
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 JIF, the Distributor shall suspend its
solicitation of orders to purchase Shares of such Fund until otherwise
instructed by JIF, and (ii) no orders to purchase Shares of such Fund shall be
accepted by JIF while such suspension remains in effect unless otherwise
directed by its Trustees.
8. Authorized Representations. The Distributor is not authorized by JIF 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. JIF hereby agrees to register an
indefinite number of Shares pursuant to Rule 24f-2 under the 1940 Act. JIF 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 JIF, and to maintain such qualification;
provided, however, that nothing herein shall be deemed to prevent JIF 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 FINRA. The Distributor will
use its best efforts to maintain its Registrations in good standing during the
term of this Agreement and will promptly notify JIF in the event of the
suspension or termination of any of the Registrations.
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11. Anti-Money Laundering.
a) The Distributor agrees that it will establish and implement an
anti-money laundering program that duly conforms in all respects with current
applicable federal anti-money laundering laws and regulations.
b) The Distributor shall create and maintain books and records as required
for the Trust by the USA PATRIOT Act and the Bank Secrecy Act, as amended
(collectively, the "AML Acts"), and make such books and records available for
inspection by the U.S. Department of Treasury's Financial Crimes Enforcement
Network and the Securities and Exchange Commission as may be requested pursuant
to the AML Acts. Distributor will notify the Trust of any such requests.
12. 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 JIF 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 JIF will pay all employee taxes due with respect to the activities of
its agents and employees.
13. Indemnification. The Distributor agrees to indemnify and hold harmless
JIF and each of the Trustees and its officers, employees and representatives and
each person, if any, who controls JIF 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 JIF 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 JIF 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 JIF, or any person indemnified, to be deemed to protect
JIF or such indemnified person against any liability to which JIF 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 JIF or any person indemnified unless JIF 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 JIF or upon such person (or
after JIF 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
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may have to JIF 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.
JIF 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 JIF or any of the Trustees, or JIF'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 JIF 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 JIF. In no case (i) is JIF'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 JIF 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 JIF 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 JIF of any such claim shall not relieve JIF from any liability which
JIF may have to the Distributor or any person against whom such action is
brought otherwise than on account of JIF's indemnity agreement contained in this
Paragraph.
JIF shall be entitled to participate, at its own expense, in the
defense or, if JIF so elects, to assume the defense of any suit brought to
enforce such claim but, if JIF elects to assume the defense, such defense shall
be conducted by legal counsel chosen by JIF and satisfactory to the persons
indemnified who are defendants in the suit. In the event that JIF elects to
assume the defense of any such suit and retain such legal counsel, the persons
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indemnified who are defendants in the suit shall bear the fees and expenses of
any additional legal counsel retained by them. If JIF does not elect to assume
the defense of any such suit, JIF 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.
14. Duration and Termination of this Agreement. With respect to each Fund
and the Distributor, this Agreement shall become effective as of the date first
written above and unless terminated as provided herein, shall remain in effect
through February 1, 2011, and from year to year thereafter, 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 voting securities of the Fund. If the
continuance of this Agreement is not approved as to a Fund, the Distributor may
continue to render to that 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 those Funds that
have approved its continuance. This Agreement may be terminated by and between
an individual Fund and the Distributor at any time, without the payment of any
penalty (a) on 60 days' written notice, by a vote of a majority of the Trustees
or by a vote of a majority of the outstanding voting securities of such Fund, or
(b) by the Distributor. Without prejudice to any other remedies of JIF, JIF 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 14, 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.
15. 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. All material amendments to this Agreement
must be approved by votes of a majority of both (a) the Trustees of the Trust
and (b) those Trustees of the Trust 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 the Agreement. 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 JIF's Agreement and Declaration of Trust 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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16. Limitation of Personal Liability. The parties to this Agreement
acknowledge and agree that all liabilities of JIF arising, directly or
indirectly, under this Agreement, of any and every nature whatsoever, shall be
satisfied solely out of the assets of JIF and that no Trustee, officer, employee
or agent, or holder of shares of beneficial interest of JIF, whether past,
present or future, shall be personally liable for any of such liabilities. JIF's
Agreement and Declaration of Trust, as amended from time to time, is on file in
the Office of the Secretary of State of The Commonwealth of Massachusetts, and
describes in detail the respective responsibilities and limitations on liability
of the Trustees, officers and holders of shares of beneficial interest of JIF.
17. Notification by JIF. JIF agrees to advise the Distributor immediately:
(a) of any request by the SEC for amendments to JIF's Registration
Statement insofar as it relates to 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 JIF's Registration Statement insofar as it
relates to 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 JIF's Registration Statement insofar as it relates to 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 JIF'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.
18. Privacy. Each party agrees that, with respect to "non-public personal
information," as defined in Regulation S-P, it will comply with Regulation S-P
and will not disclose any non-public personal information received in connection
with this Agreement to any other party, except to the extent necessary to carry
out the services set forth in this Agreement or as otherwise permitted by
Regulation S-P.
19. 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.
20. Governing Law. This Agreement shall be governed by, and construed in
accordance with, applicable federal law and with the laws of the state of
Colorado, exclusive of conflicts of laws.
21. Severability. The parties intend every provision of this Agreement to
be severable. If a court of competent jurisdiction determines that any term or
provision is illegal or invalid for any reason, the illegality or invalidity
shall not affect the validity of the remainder of
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this Agreement. In such case, the parties shall in good faith modify or
substitute such provision consistent with the original intent of the parties.
22. Entire Agreement. This Agreement is the entire contract between the
parties relating to the subject matter hereof and supercedes all prior
agreements between the parties relating to the subject matter hereof.
23. 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 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Secretary
If to the Distributor: 000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Secretary
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first above written.
ATTEST: JANUS DISTRIBUTORS LLC
By:
------------------------------------- ------------------------------------
Xxxxxxxx X. Xxxxxxxxx,
Vice President
ATTEST: JANUS INVESTMENT FUND
By:
------------------------------------- ------------------------------------
Xxxxxxxxx Xxxxxxxxxx-Xxxxxx,
Vice President, Chief Legal Counsel
and Secretary
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