EXHIBIT 5(d)
AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED DISTRIBUTION AGREEMENT (the "Agreement") is made
as of the 14th day of September, 1999, by and between Janus Aspen Series, a
business trust organized and existing under the laws of the State of Delaware,
(hereinafter called "XXX") on behalf of the Institutional Shares, Retirement
Shares and Service Shares of each of its portfolios, whether now existing or
hereafter created (each a "Portfolio"), and Janus Distributors, Inc., a
corporation organized and existing under the laws of the State of Colorado
(hereinafter called the "Distributor" or "JDI"). This Agreement applies to the
Institutional Shares, Retirement Shares, and Service Shares (together, the
"Shares") of each Portfolio of XXX, whether now existing or hereafter created.
WITNESSETH:
WHEREAS, XXX 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 National Association of
Securities Dealers, Inc. (the "NASD"), (such registrations and membership are
referred to collectively as the "Registrations"); and
WHEREAS, XXX and JDI are parties to a Distribution Agreement dated as of
May 1, 1997, as amended on September 14, 1998, under which JDI serves as
Distributor to Institutional Shares and Retirement Shares, and the parties now
wish to amend such agreement to also make JDI Distributor of Service Shares as
set forth below; and
WHEREAS, XXX has adopted on behalf of each of the Retirement Shares and the
Service Shares of each Portfolio a Distribution and Shareholder Servicing Plan
pursuant to Rule 12b-1 under the 1940 Act; and
WHEREAS, XXX desires the Distributor to act as the underwriter for the
public offering of the Shares of each Portfolio;
NOW, THEREFORE, in consideration of the premises and the mutual promises
hereinafter set forth, the parties hereto agree as follows:
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1. Appointment. XXX appoints JDI to act as distributor of the Shares.
2. Delivery of Portfolio Documents. XXX 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
(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.
XXX 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.
XXX 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
Portfolio, the Distributor is authorized to solicit, as agent on behalf of XXX,
unconditional orders for purchases of each Portfolio'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 XXX;
(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;
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(4) Each order to purchase Shares of a Portfolio received by the
Distributor shall be subject to acceptance by an officer of XXX and
entry of the order on such Portfolio's records or shareholder accounts
and is not binding until so accepted and entered; and
(5) With respect to the Retirement Shares and the Service Shares, the
Distributor may appoint sub-agents or distribute through dealers
(pursuant to the Distribution and Shareholder Servicing Agreement
applicable to that Class, forms of which are attached hereto as
Exhibits A and B), the Distributor's own sales representatives or
otherwise as the Distributor may determine from time to time.
The purchase price of a Portfolio'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 Portfolio. XXX 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 Portfolio and all information, financial statements and other papers that
the Distributor requires for use in connection with the distribution of Shares.
XXX 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 Portfolio. The rights
granted to the Distributor shall be non-exclusive in that XXX 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 Portfolio, or a Portfolio'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. XXX 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
Portfolio's Prospectus and Statement of Additional Information and of supplying
copies thereof to shareholders; all expenses of registering and maintaining the
Registrations of XXX under the 1940 Act and the sale of JAS's Shares under the
1933 Act; all expenses of qualifying and maintaining qualifications of each
Portfolio and of the Shares for sale under securities laws of various states or
other jurisdictions and of registration and qualification
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of each Portfolio under all laws applicable to XXX or its business activities.
The Distributor may receive from XXX any amounts authorized for payment to the
Distributor out of the Distribution and Shareholder Servicing Plan for the
Retirement Shares and the Service Shares. The Distributor may use such payments,
in its discretion, to compensate dealers, insurance companies or other entities
who provide distribution-related services to the extent permitted by the
Distribution Plan.
6. Public Offering Price. All solicitations by the Distributor pursuant
to this Agreement shall be for orders to purchase Shares of a Portfolio at the
public offering price. The public offering price for each accepted subscription
for a Portfolio's Shares will be the net asset value per share next determined
by XXX after it accepts such subscription. The net asset value per share of the
Shares shall be determined in the manner provided in JAS's Trust Instrument as
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
Portfolio's net asset value is suspended and until such suspension is
terminated, no further orders for Shares shall be accepted by XXX except such
unconditional orders placed with XXX and accepted by it before the suspension.
In addition, XXX reserves the right to suspend sales of Shares of a Portfolio
if, in the judgment of the Trustees, it is in the best interest of the Portfolio
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 XXX, the Distributor
shall suspend its solicitation of orders to purchase Shares of such Portfolio
until otherwise instructed by XXX and (ii) no orders to purchase Shares of such
Portfolio shall be accepted by XXX while such suspension remains in effect
unless otherwise directed by its Trustees.
8. Authorized Representations. The Distributor is not authorized by XXX
to give on behalf of any Portfolio any information or to make any
representations in connection with the sale of Shares other than the information
and representations contained in such Portfolio's registration statement filed
with the SEC under the 1933 Act and/or the 1940 Act, covering Shares, as such
registration statement or such Portfolio'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 Portfolio or approved by such Portfolio for the Distributor's use.
9. Registration of Additional Shares. XXX hereby agrees to register an
indefinite number of Shares pursuant to Rule 24f-2 under the 1940 Act. XXX will,
in cooperation with the Distributor, take such action as may be necessary from
time to time to qualify the Shares of each Portfolio (so registered or otherwise
qualified for sale under the 1933 Act), in any state or jurisdiction mutually
agreeable to the Distributor and XXX, and to maintain such qualification;
provided, however, that nothing herein shall be deemed to prevent XXX from
registering the Shares without approval of the Distributor in any state it deems
appropriate.
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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 XXX 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 XXX 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 XXX will pay all employee taxes due with respect to the activities of
its agents and employees.
12. Indemnification. The Distributor agrees to indemnify and hold harmless
XXX and each of the Trustees and its officers, employees and representatives and
each person, if any, who controls XXX 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 XXX 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 Portfolio 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 Portfolio filed
or made public by XXX 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 Portfolio by the Distributor in writing. In no case (i) is the
Distributor's indemnity in favor of XXX, or any person indemnified, to be deemed
to protect XXX or such indemnified person against any liability to which XXX 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 XXX or any person indemnified unless XXX 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 XXX or upon such
person (or after XXX 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 XXX or any person against whom
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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.
XXX 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 XXX or any of the Trustees, or JAS'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 XXX 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 XXX. In no case (i) is JAS'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 XXX 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 XXX 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 XXX of any such claim shall not relieve XXX from any liability which
XXX may have to the Distributor or any
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person against whom such action is brought otherwise than on account of JAS's
indemnity agreement contained in this Paragraph.
XXX shall be entitled to participate, at its own expense, in the defense
or, if XXX so elects, to assume the defense of any suit brought to enforce such
claim but, if XXX elects to assume the defense, such defense shall be conducted
by legal counsel chosen by XXX and satisfactory to the persons indemnified who
are defendants in the suit. In the event that XXX 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 XXX does not elect to assume the defense of any
such suit, XXX 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 in effect through July 1, 2000, and from year to
year thereafter with respect to each class of Shares of each Portfolio, 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
respective class of Shares. If the continuance of this Agreement is not approved
as to a class of Shares of a Portfolio or a Portfolio as a whole, the
Distributor may continue to render to that class of Shares or Portfolio 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 Portfolios, or those Portfolios as a
whole that have approved its continuance. This Agreement may be terminated with
respect to a class of Shares of a Portfolio or a Portfolio 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 Portfolio or of the Portfolio, (b) in
the case of the Retirement Shares class of Shares of a Portfolio, by a vote of a
majority of the Trustees who are not interested persons of XXX 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) in the case of the Service
Shares class of Shares of a Portfolio, by a vote of a majority of the Trustees
who are not interested persons of XXX 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, or (d) by the Distributor. Without prejudice to any other
remedies of XXX, XXX 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.
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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 XXX should at any time deem it necessary
or advisable in the best interests of a Portfolio 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, XXX may terminate this Agreement as to that
Portfolio or class forthwith. If the Distributor should at any time request that
a change be made in JAS'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 Portfolio, 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 XXX should not make such necessary changes within a
reasonable time, the Distributor may terminate this Agreement as to that
Portfolio or class forthwith.
15. Limitation of Personal Liability. The parties to this Agreement
acknowledge and agree that all liabilities of XXX arising, directly or
indirectly, under this Agreement, of any and every nature whatsoever, shall be
satisfied solely out of the assets of XXX and that no Trustee, officer, employee
or agent, or holder of shares of beneficial interest of XXX, whether past,
present or future, shall be personally liable for any of such liabilities.
16. Notification by XXX. XXX agrees to advise the Distributor immediately:
(a) of any request by the SEC for amendments to JAS's Registration
Statement insofar as it relates to the Shares of any of the Portfolios, 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 JAS's Registration Statement insofar as it
relates to the Shares of any of the Portfolios, 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 JAS's Registration Statement insofar as it relates to the
Shares of any of the Portfolios, 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
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(d) of all actions of the SEC with respect to any amendments to JAS's
Registration Statement insofar as they are related to the Shares of any of the
Portfolios, 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.
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 XXX: 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
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