EXHIBIT 5(a)
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (the "Agreement") is made as of the 5th day
of August, 2003, by and between Janus Adviser, a statutory trust organized and
existing under the laws of the State of Delaware ("the Trust"), on behalf of the
Investor Shares, Class A Shares, Class I Shares and Class C Shares (each, a
"Class") of each of its portfolios, whether now existing or hereafter created
(each a "Fund" or collectively the "Funds"), and Janus Distributors LLC, a
limited liability company organized and existing under the laws of the State of
Delaware ("Distributor" or "Janus Distributors"). This Agreement applies to the
Investor Shares, Class A Shares, Class I Shares and Class C Shares (together,
the "Shares") of each Fund of the Trust, and to any additional share classes of
a Fund hereafter created.
WITNESSETH:
WHEREAS, the Trust 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 in good standing 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 each of the Investor
Shares, Class A Shares, Class I Shares and Class C Shares of each Fund a
separate 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 the Shares 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 Janus Distributors 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
(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.
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 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, forms of which are attached hereto
as Exhibits A, B, and C), 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. 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. Sales Commission, Compensation and Expenses.
(a) 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 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-related 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 and Class C Shares in the amount set forth, if
any, in the then current prospectus and statements of additional information for
such Classes. Such sales charges (subject to any eliminations of sales charges
as set forth in the then current prospectus and statements of
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additional information for such Classes) 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 the 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, from the lower of the original purchase price or the value of the
redemption of the Class A Shares or Class C 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 such 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 or Class C 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 the Class A Shares or
Class C Shares. The net asset value per share of the Shares shall be determined
in the manner provided in the Trust's Trust Instrument 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 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.
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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 qualifying 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. Anti-Money Laundering. 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.
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 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.
13. 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
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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 the 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.
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 of any Fund 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
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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.
14. 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, 2005, 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 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 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, and (b) with respect to a particular Class of Shares, 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 related to such Class of Shares or
in any agreements related to such Distribution and Shareholder Servicing Plan,
or (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.
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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.
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. 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.
16. 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.
17. 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, which may from time to time be
filed with the SEC under the 1933 Act,
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insofar as they are related to the Shares of any of the Funds, the prospectus or
the statement of additional information.
18. 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.
19. 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 ADVISER
/s/ XXXXXXXXX XXXXXXXXXX By: /s/ XXXXXX XXXXXX XXXXX
-------------------------------- ---------------------------
Xxxxxx Xxxxxx Xxxxx
Vice President
ATTEST: JANUS DISTRIBUTORS LLC
/s/ XXXX X. XXXXX By: /s/ XXXXXX X. XXXX
-------------------------------- ---------------------------
Xxxxxx X. Xxxx
Vice President
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EXHIBIT A
FORMS OF DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT FOR CLASS I SHARES
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DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
CLASS I SHARES OF JANUS ADVISER
(for Plans)
This Agreement is made as of _________________, by and between Janus
Distributors LLC (the "Distributor"), a Delaware limited liability company, and
_________________ (the "Service Provider"), a ____________________ corporation.
RECITALS
A. The Distributor serves as the distributor to Janus Adviser
(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 pension or
retirement plans ("Plans") in connection with their investment in the Class I
Shares ("Shares") of the series of the Trust listed on Exhibit A hereto (each a
"Fund") 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 Shares of each
Fund 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 Fund's average daily net assets attributable to the
Shares.
D. The parties desire that Shares of the Funds 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 Shares of the Funds: delivering
prospectuses, statements of additional information and shareholder reports to
prospective and existing Plan Participants; delivering shareholder reports and
proxy materials to Plan Participants; providing educational materials regarding
the Shares; providing facilities to answer questions from prospective and
existing Plan Participants about the Funds; receiving and answering
correspondence; complying with federal and state securities laws pertaining to
the sale of Shares; and assisting Plan Participants in completing application
forms and selecting account options.
-2-
(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 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 Shares of any
Fund, including the sale of such Shares to the Service Provider for the account
of any Plan Participant or Participants.
(d) Service Provider shall not make the Shares available
to Plan Participants except in compliance with federal and state securities law
and subject to the terms of the prospectus for the Shares. Service Provider
shall be responsible for delivering the prospectus, statement of additional
information, shareholder reports, proxy materials and similar materials for the
Shares to Plan Participants in accordance with and within the time frames
required by 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 Service
Provider's negligent or willful act, omission or error, or Service Provider's
breach of this Agreement. Such indemnification shall survive termination of the
Agreement.
3. Approval of Informational Materials.
(a) No person is authorized to make any representations
concerning the Trust, the Funds, the Shares, or Distributor except those
representations contained in the then-current prospectus and statement of
additional information for the 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 Funds 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.
(b) If Service Provider elects to include any materials
provided by Distributor, specifically prospectuses, statements of additional
information, shareholder reports or proxy materials, on its web site or in any
other computer or electronic format, Service Provider assumes sole
responsibility for maintaining such materials in the form provided by
Distributor and for promptly replacing such materials with all updates provided
by Distributor.
-3-
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 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, if specifically required by a particular state, information on
sales, redemptions and exchanges of Shares of each Fund 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 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 Funds. 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 Funds and the sale of the 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 Shares
of any Fund to any person, or to suspend or terminate the offering of the Shares
of any Fund, 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 Fund.
6. Proprietary Rights. Janus Capital Management LLC ("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
Shares of the Funds. All references contained in this Agreement to "the name or
xxxx `Xxxxx'" shall include but not be limited to the Janus logo, the website
xxx.xxxxx.xxx and any and all electronic links relating to such website. The
Service Provider will make no use of the name or xxxx "Xxxxx" except as
expressly provided in this Agreement or expressly authorized by Janus Capital in
writing. All goodwill associated with the name and xxxx "Xxxxx" shall inure to
the benefit of Janus Capital. Upon termination of this Agreement for any reason,
the Service Provider shall immediately cease any and all use of any Xxxxx
xxxx(s).
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 Shares of each Fund by Plans
whose Plan Participants receive services hereunder by the
-4-
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 Shares of each Fund 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
totaling the aggregate investment by Plans whose Plan Participants receive
services hereunder by the Service Provider (share net asset value multiplied 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. Payments to Service Provider for periods 180
days or more prior to the current month shall be at Distributor's discretion.
If the Service Provider utilizes a third party who has an agreement
with Distributor to provide some or all of the services set forth in this
Agreement and Service Provider wishes Distributor to directly pay such third
party for such services, the total reimbursement due to the Service Provider or
the third party from Distributor for such services provided by such third party
on behalf of the Service Provider shall not exceed the fees set forth pursuant
to this Agreement. In no event shall Distributor make partial payments of fees
to both the Service Provider and any such third party.
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 Employee Retirement Income
-5-
Security Act of 1974, as amended ("ERISA"), the Internal Revenue Code of 1986,
as amended ("IRC"), 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) [SELECT ALTERNATIVE A OR B] A. [Neither the Service
Provider, nor any affiliate, will be a "fiduciary" of the Plans, as such term is
defined in Section 3(21) of ERISA and Section 4975 of the IRC. Neither the
Service Provider, nor any affiliate, makes any investment recommendations to any
of the Plans or Plan Participants.] B. [The Service Provider will reduce the
fees it charges to the Plans by an amount equal to the fees paid pursuant to
this Agreement.] The receipt of the fees described in this Agreement by the
Service Provider will not constitute a non-exempt "prohibited transaction," as
such term is defined in Section 406 of ERISA and Section 4975 of the IRC.
10. Market Timing. Service Provider acknowledges that Distributor
has the right to refuse any purchase order for any reason, particularly if the
Trust determines that a Fund would be unable to invest the money effectively in
accordance with its investment policies or would otherwise be adversely affected
due to the size of the transaction, frequency of trading by the account or other
factors.
11. Termination.
(a) Unless sooner terminated with respect to any Fund,
this Agreement will continue with respect to a Fund only if 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 Fund 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 Fund in the event of its assignment (as such term is defined in the
0000 Xxx) with respect to such Fund. This Agreement may be terminated with
respect to any Fund by the Distributor or by the Service Provider, without
penalty, upon 60 days' prior written notice to the other party. This Agreement
may also be terminated with respect to any Fund 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
Fund or any agreement relating to such Plan, including this Agreement, or by a
vote of a majority of the Shares of such Fund 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.
-6-
12. 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.
(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 LLC
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel
If to the Service Provider:
____________________
____________________
____________________
____________________
-7-
JANUS DISTRIBUTORS LLC ___________________________________
(Name of Service Provider)
By:_______________________________ By:______________________________
Name: Xxxxxx X. Xxxx Name:____________________________
Title: Vice President Title:___________________________
-8-
EXHIBIT A TO DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
Name of Fund Fee Factor*
------------ ----------
All Funds of Janus Adviser** .25%
(Class I Shares)
The Service Provider has no obligation to make available any or all of the Funds
of Janus Adviser.
* Shall not exceed 0.25%
** Certain Funds of Janus Adviser may become closed to new investors after the
date of this Agreement. If a certain Janus Adviser Fund closes, such Fund may no
longer be available for purchase or may be purchased only under certain
restrictions as determined by that Fund and set forth in the Fund's then current
prospectus.
-9-
DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
CLASS I SHARES OF JANUS ADVISER
(for Bank Trust Departments)
This Agreement is made as of _________________, by and between Janus
Distributors LLC (the "Distributor"), a Delaware limited liability company, and
_________________ (the "Service Provider"), a ____________________ corporation.
RECITALS
A. The Distributor serves as the distributor to Janus Adviser
(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 its clients ("Shareholders") in connection with their
investment in the Class I Shares ("Shares") of the series of the Trust listed on
Exhibit A hereto (each a "Fund") 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 Shares of each
Fund 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 Fund's average daily net assets attributable to the
Shares.
D. The parties desire that Shares of the Funds be available as
investment options for Shareholders.
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 Shareholders who invest in the Shares of the Funds: delivering prospectuses
and statements of additional information to prospective and existing
Shareholders; delivering shareholder reports and proxy materials to
Shareholders; providing educational materials regarding the Shares; providing
facilities to answer questions from prospective and existing Shareholders about
the Funds; receiving and answering correspondence; complying with federal and
state securities laws pertaining to the sale of Shares; and assisting
Shareholders in completing application forms and selecting account options.
-10-
(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 Shareholders.
(c) All orders for 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 Shares of any
Fund, including the sale of such Shares to the Service Provider for the account
of any Shareholders.
(d) Service Provider shall not make the Shares available
to Shareholders except in compliance with federal and state securities law and
subject to the terms of the prospectus for the Shares. Service Provider shall be
responsible for delivering the prospectus, statement of additional information,
shareholder reports, proxy materials and similar materials for the Shares to
Shareholders in accordance with and within the time frames required by
applicable law. All transactions in Fund Shares shall be subject to the terms of
each Fund's prospectus, including minimum account size requirements. During the
term of this Agreement, Service Provider shall not assess against or collect
from Shareholders any transaction fee in connection with the purchase or
redemption of any Fund Shares that are considered in calculating the fees due
pursuant to Section 7.
(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 Service
Provider's negligent or willful act, omission or error, or Service Provider's
breach of this Agreement. Such indemnification shall survive termination of the
Agreement.
3. Approval of Informational Materials.
(a) No person is authorized to make any representations
concerning the Trust, the Funds, the Shares, or Distributor except those
representations contained in the then-current prospectus and statement of
additional information for the 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 Funds 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.
(b) If Service Provider elects to include any materials
provided by Distributor, specifically prospectuses, statements of additional
information, shareholder reports or proxy materials, on its web site or in any
other computer or electronic format, Service Provider assumes sole
responsibility for maintaining such materials in the form provided by
Distributor and for promptly replacing such materials with all updates provided
by Distributor.
-11-
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 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 information on sales, redemptions and exchanges of Shares of each
Fund by state or jurisdiction of residence of individual Shareholders and any
other information requested by Distributor to enable Distributor or its
affiliates to properly register or report the sale of the 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 Funds. 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 Funds and the sale of the 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 Shares
of any Fund to any person, or to suspend or terminate the offering of the Shares
of any Fund, 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 Fund.
6. Proprietary Rights. Janus Capital Management LLC ("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
Shares of the Funds. All references contained in this Agreement to "the name or
xxxx `Xxxxx'" shall include but not be limited to the Janus logo, the website
xxx.xxxxx.xxx and any and all electronic links relating to such website. The
Service Provider will make no use of the name or xxxx "Xxxxx" except as
expressly provided in this Agreement or expressly authorized by Janus Capital in
writing. All goodwill associated with the name and xxxx "Xxxxx" shall inure to
the benefit of Janus Capital. Upon termination of this Agreement for any reason,
the Service Provider shall immediately cease any and all use of any Xxxxx
xxxx(s).
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 Shares of each Fund by
Shareholders who receive services hereunder by the Service
-12-
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
Shares of each Fund 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
totaling the aggregate investment by Shareholders who receive services hereunder
by the Service Provider (share net asset value multiplied 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. Payments to Service Provider for periods 180
days or more prior to the current month shall be at Distributor's discretion.
The fee due under this paragraph shall not apply to Fund shares held by
any Shareholder prior to the date of this Agreement and Shares as to which a
Shareholder may pay a transaction fee to Service Provider.
If the Service Provider utilizes a third party who has an agreement
with Distributor to provide some or all of the services set forth in this
Agreement and Service Provider wishes Distributor to directly pay such third
party for such services, the total reimbursement due to the Service Provider or
the third party from Distributor for such services provided by such third party
on behalf of the Service Provider shall not exceed the fees set forth pursuant
to this Agreement. In no event shall Distributor make partial payments of fees
to both the Service Provider and any such third party.
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
Shareholders 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;
-13-
(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 Employee Retirement Income Security Act of 1974, as amended
("ERISA"), the Internal Revenue Code of 1986, as amended (the "Code"), federal
or state securities laws, or any other applicable law;
(e) The fee arrangement under this Agreement will be
disclosed to each Shareholder prior to the Service Provider's receipt of fees
hereunder;
(f) The Service Provider and any affiliates will reduce
the fees charged to any Shareholder for which Service Provider or any affiliate
is a "fiduciary," as such term is defined in Section 3(21) of ERISA and Section
4975 of the IRC, by an amount equal to the fees paid pursuant to this Agreement.
Service Provider and any affiliates do not make any investment recommendations
to any Shareholder for whom Service Provider or any affiliate is a fiduciary.
The receipt of the fees described in this Agreement by the Service Provider will
not constitute a non-exempt "prohibited transaction," as such term is defined in
Section 406 of ERISA and Section 4975 of the Code;
(g) Service Provider's discretionary investment
management account program will comply with any law, rule or regulation
applicable to it including, but not limited to, the safe harbor provisions of
Rule 3a-4 under the 1940 Act; and
(h) Each transaction shall be for the accounts of
Shareholders and not for Service Provider's own account.
10. Market Timing. Service Provider acknowledges that Distributor
has the right to refuse any purchase order for any reason, particularly if the
Trust determines that a Fund would be unable to invest the money effectively in
accordance with its investment policies or would otherwise be adversely affected
due to the size of the transaction, frequency of trading by the account or other
factors.
11. Termination.
(a) Unless sooner terminated with respect to any Fund,
this Agreement will continue with respect to a Fund only if 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 Fund 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 Fund in the event of its assignment (as such term is defined in the
0000 Xxx) with respect to such Fund. This Agreement may be terminated with
respect to any Fund by the Distributor or by the Service Provider, without
penalty, upon 60 days' prior written notice to the other party. This Agreement
may also be terminated with respect to any Fund 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"
-14-
(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 Fund or any agreement
relating to such Plan, including this Agreement, or by a vote of a majority of
the Shares of such Fund 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.
12. 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.
(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 LLC
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel
-15-
If to the Service Provider:
_________________________
_________________________
_________________________
_________________________
JANUS DISTRIBUTORS LLC _______________________________
(Name of Service Provider)
By:_______________________________ By:____________________________
Name: Xxxxxx X. Xxxx Name:__________________________
Title: Vice President Title:_________________________
-16-
EXHIBIT A TO DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
Name of Fund Fee Factor*
------------ ----------
All Funds of Janus Adviser** 0.25%
(Class I Shares)
*Shall not exceed 0.25%
**Certain Funds of Janus Adviser may become closed to new investors after the
date of this Agreement. If a certain Janus Adviser Fund closes, such Fund may no
longer be available for purchase or may be purchased only under certain
restrictions as determined by that Fund and set forth in the Funds' then current
prospectus.
-17-
DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
CLASS I SHARES OF JANUS ADVISER
(for Fee-Based and Brokerage Accounts)
This Agreement is made as of _________________, by and between Janus
Distributors LLC (the "Distributor"), a Delaware limited liability company, and
________________ (the "Service Provider"), a ____________________ corporation.
RECITALS
A. The Distributor serves as the distributor to Janus Adviser
(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 its clients ("Shareholders") in connection with their
investment in the Class I Shares ("Shares") of the series of the Trust listed on
Exhibit A hereto (each a "Fund") 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 Shares of each
Fund 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 Fund's average daily net assets attributable to the
Shares.
D. The parties desire that Shares of the Funds be available as
investment options for Shareholders.
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 Shareholders who invest in the Shares of the Funds: delivering prospectuses
and statements of additional information to prospective and existing
Shareholders; delivering shareholder reports and proxy materials to
Shareholders; providing educational materials regarding the Shares; providing
facilities to answer questions from prospective and existing Shareholders about
the Funds; receiving and answering correspondence; complying with federal and
state securities laws pertaining to the sale of Shares; and assisting
Shareholders in completing application forms and selecting account options.
-18-
(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 Shareholders.
(c) All orders for 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 Shares of any
Fund, including the sale of such Shares to the Service Provider for the account
of any Shareholders.
(d) Service Provider shall not make the Shares available
to Shareholders except in compliance with federal and state securities law and
subject to the terms of the prospectus for the Shares. Service Provider shall be
responsible for delivering the prospectus, statement of additional information,
shareholder reports, proxy materials and similar materials for the Shares to
Shareholders in accordance with and within the time frames required by
applicable law. All transactions in Fund Shares shall be subject to the terms of
each Fund's prospectus, including minimum account size requirements. During the
term of this Agreement, Service Provider shall not assess against or collect
from Shareholders any transaction fee in connection with the purchase or
redemption of any Fund Shares that are considered in calculating the fees due
pursuant to Section 7.
(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 Service
Provider's negligent or willful act, omission or error, or Service Provider's
breach of this Agreement. Such indemnification shall survive termination of the
Agreement.
3. Approval of Informational Materials.
(a) No person is authorized to make any representations
concerning the Trust, the Funds, the Shares, or Distributor except those
representations contained in the then-current prospectus and statement of
additional information for the 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 Funds 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.
(b) If Service Provider elects to include any materials
provided by Distributor, specifically prospectuses, statements of additional
information, shareholder reports or proxy materials, on its web site or in any
other computer or electronic format, Service Provider
-19-
assumes sole responsibility for maintaining such materials in the form provided
by Distributor and for promptly replacing such materials with all updates
provided by Distributor.
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 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 information on sales, redemptions and exchanges of Shares of each
Fund by state or jurisdiction of residence of individual Shareholders and any
other information requested by Distributor to enable Distributor or its
affiliates to properly register or report the sale of the 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 Funds. 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 Funds and the sale of the 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 Shares
of any Fund to any person, or to suspend or terminate the offering of the Shares
of any Fund, 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 Fund.
6. Proprietary Rights. Janus Capital Management LLC ("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
Shares of the Funds. All references contained in this Agreement to "the name or
xxxx `Xxxxx'" shall include but not be limited to the Janus logo, the website
xxx.xxxxx.xxx and any and all electronic links relating to such website. The
Service Provider will make no use of the name or xxxx "Xxxxx" except as
expressly provided in this Agreement or expressly authorized by Janus Capital in
writing. All goodwill associated with the name and xxxx "Xxxxx" shall inure to
the benefit of Janus Capital. Upon termination of this Agreement for any reason,
the Service Provider shall immediately cease any and all use of any Xxxxx
xxxx(s).
-20-
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 Shares of each Fund by
Shareholders who 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 Shares of each
Fund 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 totaling
the aggregate investment by Shareholders who receive services hereunder by the
Service Provider (share net asset value multiplied 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. Payments to Service Provider for periods 180
days or more prior to the current month shall be at Distributor's discretion.
The fee due under this paragraph shall not apply to Fund shares held by
any Shareholder prior to the date of this Agreement and Shares as to which a
Shareholder may pay a transaction fee to Service Provider.
If the Service Provider utilizes a third party who has an agreement
with Distributor to provide some or all of the services set forth in this
Agreement and Service Provider wishes Distributor to directly pay such third
party for such services, the total reimbursement due to the Service Provider or
the third party from Distributor for such services provided by such third party
on behalf of the Service Provider shall not exceed the fees set forth pursuant
to this Agreement. In no event shall Distributor make partial payments of fees
to both the Service Provider and any such third party.
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
Shareholders to enter into this Agreement;
-21-
(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 Employee Retirement Income Security Act of 1974, as amended
("ERISA"), the Internal Revenue Code of 1986, as amended (the "Code"), federal
or state securities laws, or any other applicable law;
(e) The fee arrangement under this Agreement will be
disclosed to each Shareholder prior to the Service Provider's receipt of fees
hereunder;
(f) [SELECT ALTERNATIVE A OR B] A. [Neither Service
Provider, nor any affiliate, will be a "fiduciary" of the Shareholders as such
term is defined in Section 3(21) of ERISA and Section 4975 of the Code.] B.
[Service Provider will reduce the fees it charges to the Shareholders by an
amount equal to the fees paid pursuant to this Agreement.] The receipt of the
fees described in this Agreement by the Service Provider will not constitute a
non-exempt "prohibited transaction," as such term is defined in Section 406 of
ERISA and Section 4975 of the Code;
(g) Service Provider's fee-based account program will
comply with any law, rule or regulation applicable to it including, but not
limited to, the safe harbor provisions of Rule 3a-4 under the 1940 Act; and
(h) Each transaction shall be for the accounts of
Shareholders and not for Service Provider's own account.
10. Market Timing. Service Provider acknowledges that Distributor
has the right to refuse any purchase order for any reason, particularly if the
Trust determines that a Fund would be unable to invest the money effectively in
accordance with its investment policies or would otherwise be adversely affected
due to the size of the transaction, frequency of trading by the account or other
factors.
11. Termination.
(a) Unless sooner terminated with respect to any Fund,
this Agreement will continue with respect to a Fund only if 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 Fund 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.
-22-
(b) This Agreement will automatically terminate with
respect to a Fund in the event of its assignment (as such term is defined in the
0000 Xxx) with respect to such Fund. This Agreement may be terminated with
respect to any Fund by the Distributor or by the Service Provider, without
penalty, upon 60 days' prior written notice to the other party. This Agreement
may also be terminated with respect to any Fund 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
Fund or any agreement relating to such Plan, including this Agreement, or by a
vote of a majority of the Shares of such Fund 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.
12. 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.
(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.
-23-
If to Distributor:
Janus Distributors LLC
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel
If to the Service Provider:
__________________________
__________________________
__________________________
__________________________
JANUS DISTRIBUTORS LLC __________________________
(Name of Service Provider)
By:_______________________________ By:___________________________
Name: Xxxxxx X. Xxxx Name:_________________________
Title: Vice President Title:________________________
-24-
EXHIBIT A TO DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
Name of Fund Fee Factor*
------------ ----------
All Funds of Janus Adviser** 0.25%
(Class I Shares)
*Shall not exceed 0.25%
**Certain Funds of Janus Adviser may become closed to new investors after the
date of this Agreement. If a certain Janus Adviser Fund closes, such Fund may no
longer be available for purchase or may be purchased only under certain
restrictions as determined by that Fund and set forth in the Funds' then current
prospectus.
-25-
EXHIBIT B
FORM OF DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT FOR CLASS C SHARES
-26-
DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
CLASS C SHARES OF JANUS ADVISER
This Agreement is made as of _________________, by and between Janus
Distributors LLC (the "Distributor"), Janus Services LLC ("Janus Services"),
each a Delaware limited liability company, and _________________ (the "Service
Provider"), a ____________________ corporation.
RECITALS
A. The Distributor serves as the distributor to Janus Adviser
(the "Trust"), an open-end management investment company registered under the
Investment Company Act of 1940 (the "1940 Act").
X. Xxxxx Services is the registered transfer agent of the Trust.
C. Class C Shares ("Shares") of the series of the Trust listed on
Exhibit A hereto (each a "Fund") are or will be registered with the Securities
and Exchange Commission ("SEC") under the Securities Act of 1933, as amended
(the "Securities Act") and offered to the public through prospectuses (each, a
"Prospectus") and statements of additional information (each, an "SAI").
D. The Distributor desires to appoint Service Provider and
Service Provider desires to serve, as the Distributor's agent for the limited
purpose of providing distribution assistance pertaining to the Funds.
X. Xxxxx Services desires to appoint Service Provider and Service
Provider desires to serve, as Janus Services' agent for the limited purposes of
accepting orders for the purchase and redemption of Shares of the Funds by the
Service Provider and providing shareholder servicing pertaining to the Funds on
behalf of Service Provider's customers investing in Class C Shares.
D. Pursuant to Rule 12b-1 under the 1940 Act, the Trust on behalf
of each Fund has adopted a Distribution and Shareholder Servicing Plan (the
"12b-1 Plan") for the Shares which, among other things, authorizes the
Distributor to compensate financial intermediaries such as the Service Provider
out of each Fund's average daily net assets attributable to the Shares.
X. Xxxxx Services and the Service Provider are members in good
standing of the National Securities Clearing Corporation (the "NSCC") and have
access to the NSCC's Defined Contribution Clearance and Settlement system
("DCC&S") and/or Fund/SERV system ("Fund/SERV") (collectively, the "NSCC
Systems").
F. The Service Provider has executed the NSCC Fund/SERV Agreement
and related Addendum (or similar mutually acceptable agreement) (together, the
"NSCC Agreement") with
- 27 -
Janus Services or its affiliate, and Service Provider intends to place trades
for Shares via the NSCC Systems.
AGREEMENT
1. Services of Service Provider.
(a) Service Provider agrees to act as the Distributor's
and Janus Services' agent in providing the services under this Agreement.
Service Provider will not act in a principal capacity or as a principal
underwriter to the Funds as defined in the 1940 Act.
(b) Services that Service Provider may provide include
the following:
(i) assisting the Distributor in marketing
Shares of the Funds to Service Provider's prospective and existing
customers ("Customers").
(ii) providing facilities to answer questions
from Customers about the Funds; receiving and answering correspondence;
assisting Customers in changing dividend and other account options; and
any other activities as the Distributor may reasonably request to the
extent permitted under applicable laws or regulations or the National
Association of Securities Dealers, Inc. ("NASD") Rules of Conduct,
including but not limited to the services set forth on Exhibit B of
this Agreement.
(c) 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 Customers.
(d) All orders for 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 Shares of any
Fund, including the sale of such Shares to the Service Provider for the account
of any Customers.
(e) Service Provider shall not make the Shares available
to Customers except in compliance with federal and state securities law and
subject to the terms of the Prospectus for the Shares. Service Provider shall be
responsible for delivering the Prospectus, SAI, shareholder reports, proxy
materials and similar materials for the Shares to Customers in accordance with
and within the time frames required by applicable law. All transactions in Fund
Shares shall be subject to the terms of each Fund's Prospectus, including
minimum initial investment requirements.
(f) Orders for the purchase of Fund Shares shall be
executed at the then-current public offering price per Shares (i.e., the net
asset value ("NAV") per Share plus any applicable sales charge) and all orders
for the redemption of any Fund Shares shall be executed at the NAV per Share
less any applicable contingent deferred sales charge.
- 28 -
(g) 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. Order Processing.
(a) All orders will be processed pursuant to the NSCC
Agreement. Janus Services will accept trades not submitted via the NSCC Systems
on an exception-only basis in accordance with the following terms:
On any business day ("Day One"), the Service Provider may
accept orders from Customers for the purchase and redemption of Shares
of the Funds. The Service Provider will send such orders to Janus
Services prior to 10:00 a.m. Eastern Time of the next business day
("Day Two") pursuant to the Trading Requirements listed on Exhibit C.
The Funds will execute orders at the net asset values as determined as
of the close of trading on Day One, and dividends, if applicable, shall
begin to accrue on Day Two, provided that:
(i) Service Provider received such orders prior
to the time the NAVs of the Shares of the Funds were calculated on Day
One, and
(ii) Such orders and payment for such orders were
received by Janus Services prior to the times set forth in Exhibit C.
If either of the above conditions is not met, the orders will
be executed at the public offering price next in effect after such
orders are received, and dividends, if applicable, will begin to accrue
the day after settlement.
(b) Payment for net purchases and redemptions will be
wired pursuant to the NSCC Agreement, or pursuant to the Settlement Requirements
outlined in Exhibit C for trades not submitted via the NSCC Systems. In the
event of extraordinary market conditions affecting any such redemption, however,
Janus Services may delay such redemption for up to five business days, or longer
to the extent permitted under Section 22(e) of the 1940 Act.
(c) Janus Services will provide to the Service Provider
closing NAVs, dividends, and capital gains information at the close of trading
each business day. Dividends and capital gains distributions shall be reinvested
in accordance with the terms of the Prospectus.
(d) Notwithstanding any agreement between the parties to
the contrary, Janus Services will accept Customer-level accounts provided that
all trades are processed through the NSCC Systems. Service Provider's failure to
use the NSCC Systems for all processing for and maintenance of Customer-level
accounts may result in Janus Services permitting only one omnibus account in the
Service Provider's name. Service Provider shall open each new account
- 29 -
by submitting an application to Janus Services prior to placing any order for or
funding any such account. The form of such application shall be provided to
Service Provider by Janus Services.
(e) Service Provider will collect all applicable
contingent deferred sales charges in accordance with the terms of the
then-current Prospectus and will forward all such contingent deferred sales
charges to Janus Distributors on a monthly basis or Service Provider will
establish all accounts as Matrix Level 1 accounts to enable Janus Distributors
to waive contingent deferred sales charges on distributions to such accounts in
accordance with the terms of the then-current Prospectus.
(f) All orders accepted by Service Provider shall be
subject to the terms of the then-current Prospectus of each Fund, including
without limitation, policies regarding minimum initial investments, market
timing and excessive trading. Service Provider shall use its best efforts, and
shall reasonably cooperate with Janus Services, to enforce stated Prospectus
policies regarding transactions in Shares, particularly those related to market
timing. Service Provider acknowledges that orders accepted by it in violation of
the Trust's stated policies may be subsequently revoked or cancelled by Janus
Services and that Janus Services shall not be responsible for any losses
incurred by Service Provider or any Customer as a result of such cancellation.
Janus Services or its agent shall notify Service Provider of any such
cancellation prior to 12:00 p.m. Eastern Time on Day Two.
(g) Service Provider acknowledges that Janus Services has
the right to refuse any purchase order for any reason, particularly if the Trust
determines that a Fund would be unable to invest the money effectively in
accordance with its investment policies or would otherwise be adversely affected
due to the size of the transaction, frequency of trading by the account or other
factors.
3. Compensation.
(a) In return for providing the services set forth in
this Agreement, unless Service Provider waives this right, Service Provider
shall be entitled to a re-allowance of the entire initial sales charge as set
forth in the then-current Prospectus. Service Provider shall be entitled to such
re-allowance upon receipt of purchase funds from Customers.
(b) In addition to the re-allowance set forth above in
paragraph 3(a), Service Provider shall be entitled to receive additional
compensation and/or an asset-based sales charge and/or a service fee for each
Fund in an amount equal to a percentage of net assets set forth as follows:
(i) a one-time fee, in an amount as set forth in
Exhibit A, Section 1, based on the aggregate net asset value of Shares
of each Fund purchased during a month by Customers who receive services
hereunder from the Service Provider; and
(ii) beginning in the 13th month after such Share
purchase, an on-going 12b-1 fee, in an amount calculated and paid as
set forth in Exhibit A, Section 2. Service
- 30 -
Provider agrees to waive the compensation pursuant to this Section
3(b)(ii) until Distributor receives the distribution and shareholder
servicing fees from the Trust. The Distributor's liability for payment
of this compensation is limited solely to the proceeds of the
distribution and shareholder servicing fees receivable from the Trust.
Distributor will calculate the fees payable pursuant to this Agreement
at the end of each calendar quarter and will make such payment to the Service
Provider. The payment will be accompanied by a statement showing the calculation
of the quarterly amounts payable by Distributor and such other supporting data
as may be reasonably requested by the Service Provider. Payments to Service
Provider for periods 180 days or more prior to the current month shall be at
Distributor's discretion. The fees due under this Agreement shall not apply to
Fund Shares held by any Customer prior to the date of this Agreement.
If Service Provider utilizes a third party who has an agreement with
Distributor to provide some or all of the services set forth in this Agreement
and Service Provider wishes Distributor to directly pay such third party for
such services, the total payment due to the Service Provider or the third party
from Distributor for such services provided by such third party on behalf of the
Service Provider shall not exceed the fees set forth pursuant to this Agreement.
In no event shall Distributor make partial payments of fees to both the Service
Provider and any such third party.
4. Indemnification. The Service Provider shall indemnify
Distributor, Janus Services, 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 Service Provider's negligent or willful act, omission or error,
or Service Provider's breach of this Agreement. Such indemnification shall
survive termination of the Agreement.
5. Approval of Informational Materials.
(a) No person is authorized to make any representations
concerning the Trust, the Funds, the Shares, or Distributor except those
representations contained in the then-current Prospectuses and SAIs for the
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 Funds 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.
(b) If Service Provider elects to include any materials
provided by Distributor, specifically Prospectuses, SAIs, shareholder reports or
proxy materials, on its website or in any other computer or electronic format,
Service Provider assumes sole responsibility for maintaining such materials in
the form provided by Distributor and for promptly replacing such materials with
all updates provided by Distributor.
6. Maintenance of Records.
- 31 -
(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 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 information on sales, redemptions and exchanges of Shares of each
Fund by state or jurisdiction of residence of individual Customers and any other
information requested by Distributor to enable Distributor or its affiliates to
properly register or report the sale of the 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.
7. Operations of the Funds. 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 Funds and the sale of the 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 Shares
of any Fund to any person, or to suspend or terminate the offering of the Shares
of any Fund, 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 Fund.
8. Proprietary Rights. Janus Capital Management LLC ("Janus
Capital") is the sole owner of the name and xxxx "Xxxxx." All references
contained in this Agreement to "the name or xxxx `Janus'" shall include but not
be limited to the Janus logo, the website xxx.xxxxx.xxx and any and all
electronic links relating to such website. 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 Shares of the
Funds. The Service Provider will make no use of the name or xxxx "Xxxxx" except
as expressly provided in this Agreement or expressly authorized by Janus Capital
in writing. All goodwill associated with the name and xxxx "Xxxxx" shall inure
to the benefit of Janus Capital. Upon termination of this Agreement for any
reason, the Service Provider shall immediately cease any and all use of any
Xxxxx xxxx(s).
9. 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.
- 32 -
10. 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 to enter into this
Agreement;
(c) The Service Provider is registered with the SEC as a
broker and dealer pursuant to the Securities Exchange Act of 1934 (the "Exchange
Act"), is a member in good standing of the NASD and is qualified to conduct
business under the laws of any applicable state in which the Shares may be sold,
or is not required to be so 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 Employee Retirement Income Security Act of 1974, as amended
("ERISA"), the Internal Revenue Code of 1986, as amended (the "Code"), federal
or state securities laws, or any other applicable law;
(e) The fee arrangement under this Agreement will be
disclosed to each Customer prior to the Service Provider's receipt of fees
hereunder;
(f) [SELECT ALTERNATIVE A OR B] A. [Neither Service
Provider, nor any affiliate, will be a "fiduciary" of the Customers as such term
is defined in Section 3(21) of ERISA and Section 4975 of the Code.] B. [Service
Provider will reduce the fees it charges to the Customers by an amount equal to
the fees paid pursuant to this Agreement.] The receipt of the fees described in
this Agreement by the Service Provider will not constitute a non-exempt
"prohibited transaction," as such term is defined in Section 406 of ERISA and
Section 4975 of the Code;
(g) If Service Provider intends to offer Shares to its
Customers as part of a fee-based account program, such program will comply with
any law, rule or regulation applicable to it including, but not limited to, the
safe harbor provisions of Rule 3a-4 under the 1940 Act;
(h) Each transaction shall be for the accounts of
Customers and not for Service Provider's own account;
(i) Any information Service Provider provides to
Customers concerning the Funds will be based on information contained in the
Prospectus or SAI for the Funds, or on promotion materials or sales literature
that the Distributor furnishes to the public;
- 33 -
(j) Service Provider will distribute Fund Prospectuses,
SAIs, proxy materials and other shareholder communications to Customers in
accordance with applicable regulatory requirements, except to the extent the
Distributor expressly undertakes in writing to do so;
(k) Service Provider will not effect any transactions
(including, without limitation, any purchases, exchanges and redemptions) in any
Fund Shares, registered in the name of, or beneficially owned by, any Customer,
unless to Service Provider's knowledge, such Customer has granted to Service
Provider full right, power and authority to effect such transactions on such
Customer's behalf;
(l) Service Provider will obtain from each Customer for
whom it acts as agent for the purchase of Fund Shares any taxpayer
identification number certification and such other information as may be
required from time to time under the Code, and the regulations thereunder, and
will provide Distributor or its designee with timely written notice of any
failure to obtain such taxpayer identification number certification or other
information in order to enable implementation of any required withholding; and
(m) Service Provider is in compliance with all applicable
anti-money laundering laws, rules and regulations including, but not limited to,
the U.S.A. Patriot Act of 2001, P.L. 107-56.
11. Confidentiality of Customer Information. The names, addresses
and other information concerning Customers are and shall remain the sole
property of Service Provider. Neither the Distributor, Janus Services, their
affiliates, nor their officers, directors, employees or agents, or any control
person of the foregoing persons, shall use such names, addresses or other
information for any purpose except in connection with the performance of the
Distributor's and Janus Services' duties and responsibilities hereunder and
except for shareholder servicing and informational mailings relating to the
Funds. Notwithstanding the foregoing, this Section 11 shall not prohibit the
Distributor, Janus Services or any of their affiliates from using for any
purpose the names, addresses or other information concerning any of Service
Provider's Customers if such names, addresses or other information are obtained
in any manner other than from Service Provider pursuant to this Agreement. The
provisions of this Section 11 shall survive termination of this Agreement.
- 34 -
12. Termination.
(a) Unless sooner terminated with respect to any Fund,
this Agreement will continue with respect to a Fund only if 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 Fund 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 Fund in the event of its assignment (as such term is defined in the
0000 Xxx) with respect to such Fund. This Agreement may be terminated with
respect to any Fund by the Distributor or by the Service Provider, without
penalty, upon 60 days' prior written notice to the other party, with a copy to
Janus Services. This Agreement may also be terminated with respect to any Fund
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 Fund or any agreement relating to such Plan,
including this Agreement, or by a vote of a majority of the Shares of such Fund
on 60 days' written notice.
(c) In addition, any 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.
13. 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.
- 35 -
(e) All notices and other communications to Service
Provider, Janus Services or Distributor will be duly given if mailed or faxed to
the address set forth below, or to such other address as any party may provide
in writing to the other parties.
If to Distributor: If to Janus Services:
Janus Distributors LLC Janus Services LLC
000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000 Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel Attn: General Counsel
If to the Service Provider:
______________________________
______________________________
______________________________
______________________________
JANUS DISTRIBUTORS LLC _________________________________________
(Name of Service Provider)
By:_____________________________ By:______________________________________
Name: Xxxxxx X. Xxxx Name:____________________________________
Title: Vice President Title:___________________________________
JANUS SERVICES LLC
By:_____________________________
Name: Xxxxxx X. Xxxx
Title: Vice President
- 36 -
EXHIBIT A TO DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
SECTION 1
Name of Fund One-Time Fee Factor
------------ -------------------
All Funds of Janus Adviser (Class C Shares) 1.00%
except Money Market Fund*
SECTION 2
Name of Fund Fee Factor per Annum
------------ --------------------
All Funds of Janus Adviser (Class C Shares)* 1.00%
The average aggregate amount invested each month in the Shares of each
Fund by Customers is multiplied by a pro-rata fee factor. The pro rata fee
factor is calculated by: (a) dividing the per annum factor set forth above for
the Shares of each Fund 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
totaling the aggregate investment by Customers who receive services hereunder
from the Service Provider (Share NAV multiplied 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.
----------
*Certain Funds of Janus Adviser may become closed to new investors after the
date of this Agreement. If a certain Janus Adviser Fund closes, such Fund may no
longer be available for purchase or may be purchased only under certain
restrictions as determined by that Fund and set forth in the Funds' then-current
Prospectus.
- 37 -
EXHIBIT B TO DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
Service Provider shall, at Service Provider's expense, provide the following
services for Customers:
Receive, aggregate, and process Customer orders;
Issue confirmations for transactions by Customers;
Maintain records for Customers, which records shall reflect Shares
purchased and redeemed, including the date and price for all
transactions, and Share balances;
Disburse or credit to Customers, and maintain records of, all proceeds
of redemptions of Shares and all other distributions not reinvested in
Shares; and
Prepare and transmit to Customers periodic account statements showing
the total number of Shares owned by the Customers as of the statement
closing date, purchases and redemptions of Shares by the Customers
during the period covered by the statement, and the dividends and other
distributions paid to the Customers during the statement period
(whether paid in cash or reinvested in Shares).
Other(specify)_________________________________________________________
_________
_________
_________
_______________________________________________________________________
_________
- 38 -
EXHIBIT C TO DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
1. TRADING REQUIREMENTS
A. All trades must be netted (i.e., one purchase or redemption
per Fund, per account). For example: a purchase for $2,000 and a redemption for
$500 should be netted into one purchase for $1,500.
B. All trades must be submitted in dollars. No Share trades will
be accepted.
C. No exchanges will be accepted, sell/buys must be requested.
D. Electronic or typed trade requests must be received by Janus
Services prior to 10:00 a.m. EST.
2. SETTLEMENT REQUIREMENTS
A. Service Provider will send Janus Services one combined
purchase wire for all purchase orders by 2:00 p.m. EST on Day Two.
X. Xxxxx Services will send one combined wire for all redemption
proceeds by 4:00 p.m. EST on Day Two.
- 39 -
EXHIBIT C
FORM OF MULTI-CLASS DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
- 40 -
DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
JANUS ADVISER
This Agreement is made as of _____________________, by and between
Janus Distributors LLC (the "Distributor"), Janus Services LLC ("Janus
Services"), each a Delaware limited liability company, and ____________________
(the "Service Provider"), a ____________________ corporation.
RECITALS
A. The Distributor serves as the distributor to Janus Adviser
(the "Trust"), an open-end management investment company which is or will be
registered under the Investment Company Act of 1940 (the "1940 Act").
X. Xxxxx Services is the registered transfer agent of the Trust.
C. The share classes listed on Exhibit A hereto ("Shares") of the
series of the Trust (each a "Fund") are or will be registered with the
Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as
amended (the "Securities Act") and offered to the public through prospectuses
(each, a "Prospectus") and statements of additional information (each, an
"SAI").
D. The Distributor desires Service Provider and Service Provider
agrees to provide distribution assistance pertaining to the Funds and/or
recordkeeping and other administrative services to its customers investing in
Shares.
X. Xxxxx Services desires to appoint Service Provider and Service
Provider desires to serve, as Janus Services' agent for the limited purposes of
accepting orders for the purchase and redemption of Shares of the Funds by the
Service Provider and providing shareholder servicing pertaining to the Funds on
behalf of Service Provider's customers investing in Shares.
F. Pursuant to Rule 12b-1 under the 1940 Act, the Trust on behalf
of each Fund has adopted a Distribution and Shareholder Servicing Plan (the
"12b-1 Plan") for those Shares indicated on Exhibit A which, among other things,
authorizes the Distributor to compensate financial intermediaries such as the
Service Provider out of each Fund's average daily net assets attributable to
such Shares.
X. Xxxxx Services and the Service Provider are members in good
standing of the National Securities Clearing Corporation (the "NSCC") and have
access to the NSCC's Defined Contribution Clearance and Settlement system
("DCC&S") and/or Fund/SERV system ("Fund/SERV") (collectively, the "NSCC
Systems").
- 41 -
H. The Service Provider has executed the NSCC Fund/SERV Agreement
and related Addendum (or similar mutually acceptable agreement) (together, the
"NSCC Agreement") with Janus Services or its affiliate, and Service Provider
intends to place trades for Shares via the NSCC Systems.
AGREEMENT
1. Services of Service Provider.
(a) Service Provider agrees to act as Janus Services'
agent in providing the services under this Agreement. Service Provider will not
act in a principal capacity or as a principal underwriter to the Funds as
defined in the 1940 Act.
(b) Services that Service Provider may provide include
the following:
(i) assisting the Distributor in marketing
Shares of the Funds to Service Provider's prospective and existing
customers ("Customers").
(ii) providing facilities to answer questions
from Customers about the Funds; receiving and answering correspondence;
assisting Customers in changing dividend and other account options; and
any other activities as the Distributor may reasonably request to the
extent permitted under applicable laws or regulations or the National
Association of Securities Dealers, Inc. ("NASD") Rules of Conduct,
including but not limited to the services set forth on Exhibit B of
this Agreement.
(c) 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 Customers.
(d) All orders for 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 Shares of any
Fund, including the sale of such Shares to the Service Provider for the account
of any Customers.
(e) Service Provider shall not make the Shares available
to Customers except in compliance with federal and state securities law and
subject to the terms of the Prospectus for the Shares. Service Provider shall be
responsible for delivering the Prospectus, SAI, shareholder reports, proxy
materials and similar materials for the Shares to Customers in accordance with
and within the time frames required by applicable law. All transactions in Fund
Shares shall be subject to the terms of each Fund's Prospectus, including
minimum initial investment requirements.
(f) Orders for the purchase of Fund Shares shall be
executed at the then-current public offering price per Shares (i.e., the net
asset value ("NAV") per Share plus an applicable sales charge, if any) and all
orders for the redemption of any Fund Shares shall be executed at the NAV per
Share less any applicable contingent deferred sales charge.
- 42 -
(g) 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. Order Processing.
(a) Orders will generally be processed pursuant to the
NSCC Agreement. Janus Services will accept trades not submitted via the NSCC
Systems on an exception-only basis in accordance with the following terms:
On any business day ("Day One"), the Service Provider may
accept orders from Customers for the purchase and redemption of Shares
of the Funds. The Service Provider will send such orders to Janus
Services prior to 9:00 a.m. Eastern Time of the next business day ("Day
Two") pursuant to the Trading Requirements listed on Exhibit C. The
Funds will execute orders at the net asset values as determined as of
the close of trading on Day One, and dividends, if applicable, shall
begin to accrue on Day Two, provided that:
(i) Service Provider received such orders prior
to the time the NAVs of the Shares of the Funds were calculated on Day
One, and
(ii) Such orders and payment for such orders were
received by Janus Services prior to the times set forth in Exhibit C.
If either of the above conditions is not met, the orders will
be executed at the public offering price next in effect after such
orders are received, and dividends, if applicable, will begin to accrue
the day after settlement.
(b) Payment for net purchases and redemptions will be
wired pursuant to the NSCC Agreement, or pursuant to the Settlement Requirements
outlined in Exhibit C for trades not submitted via the NSCC Systems. In the
event of extraordinary market conditions affecting any such redemption, however,
Janus Services may delay such redemption for up to five business days, or longer
to the extent permitted under Section 22(e) of the 1940 Act.
(c) Janus Services will provide to the Service Provider
closing NAVs, dividends, and capital gains information at the close of trading
each business day. Dividends and capital gains distributions shall be reinvested
in accordance with the terms of the Prospectus.
(d) Notwithstanding any agreement between the parties to
the contrary, Janus Services will accept Customer-level accounts provided that
all trades are processed through the NSCC Systems. Service Provider's failure to
use the NSCC Systems for all processing for and maintenance of Customer-level
accounts may result in Janus Services permitting only one omnibus account in the
Service Provider's name. Service Provider shall open each new account
- 43 -
by submitting an application to Janus Services prior to placing any order for or
funding any such account. The form of such application shall be provided to
Service Provider by Janus Services.
(e) Service Provider will collect all applicable
contingent deferred sales charges in accordance with the terms of the
then-current Prospectus and will forward all such contingent deferred sales
charges to Janus Distributors on a monthly basis or Service Provider will
establish all accounts as Matrix Level 1 to enable Janus Distributors to waive
contingent deferred sales charges to such accounts in accordance with the terms
of the then-current Prospectus.
(f) All orders accepted by Service Provider shall be
subject to the terms of the then-current Prospectus of each Fund, including
without limitation, policies regarding minimum initial investments, market
timing, redemption fees and excessive trading. Service Provider shall use its
best efforts, and shall reasonably cooperate with Janus Services, to enforce
stated Prospectus policies regarding transactions in Shares, particularly those
related to market timing. Service Provider acknowledges that orders accepted by
it in violation of the Trust's stated policies may be subsequently revoked or
cancelled by Janus Services and that Janus Services shall not be responsible for
any losses incurred by Service Provider or any Customer as a result of such
cancellation. Janus Services or its agent shall notify Service Provider of any
such cancellation prior to 12:00 p.m. Eastern Time on Day Two.
(g) Service Provider acknowledges that Janus Services has
the right to refuse any purchase order for any reason, particularly if the Trust
determines that a Fund would be unable to invest the money effectively in
accordance with its investment policies or would otherwise be adversely affected
due to the size of the transaction, frequency of trading by the account or other
factors.
(h) Service Provider acknowledges its obligation to
accurately record and track each Customer's investments in Shares, and to at all
times ensure that each Customer is charged the correct sales load or contingent
deferred sales load as calculated in accordance with the sales load schedule
applicable to each Class of Shares, taking into account any breakpoints, rights
of accumulation, letter of intent or other modification in such schedule as
described in a Fund's then current Prospectus or otherwise agreed with such
Customer with respect to such Shares.
3. Compensation.
(a) CHOOSE A OR B: A. [In return for providing the
services set forth in this Agreement Service Provider shall be entitled to a
re-allowance of the entire initial sales charge, if applicable to a particular
Share class, as set forth in the then-current Prospectus. Service Provider shall
be entitled to such re-allowance upon receipt of purchase funds from Customers.]
B. [Service Provider agrees to waive the entire initial sales charge
re-allowance set forth in a Fund's then-current Prospectus.]
- 44 -
(b) In addition to the re-allowance set forth above in
paragraph 3(a), Service Provider shall be entitled to receive additional
compensation and/or an asset-based sales charge and/or a service fee for each
Fund as described in Exhibit A
in an amount equal to a percentage of net assets set forth as follows:
(i) a one-time fee, in an amount as set forth in
Exhibit A, Section 1, based on the aggregate net asset value of Shares
of each Fund purchased during each half-month period by Customers who
receive services hereunder from the Service Provider; and
(ii) an on-going 12b-1 fee, in an amount
calculated and paid as set forth in Exhibit A, Section 2. With respect
to Class C Shares, such fee will begin to accrue in the 13th month
after such Share purchase. The Distributor's liability for payment of
this compensation is limited solely to the proceeds of the distribution
and shareholder servicing fees receivable from the Trust.
(c) For all orders processed via the NSCC Systems,
Distributor will daily calculate and pay the fees payable pursuant to Section
3(a) of this Agreement, and will make such payment to the Service Provider. For
orders processed manually, Distributor will calculate and pay such fees two
times per month.
(d) Distributor will calculate the fees payable pursuant
to Section 3(b)(i) of this Agreement two times per month and will make such
payment to the Service Provider.
(e) Distributor will calculate the fees payable pursuant
to Section 3(b)(ii) of this Agreement at the end of each month and will make
such payment to the Service Provider.
(f) Each payment will be accompanied by a statement
showing the calculation of the amounts payable by Distributor and such other
supporting data as may be reasonably requested by the Service Provider. Payments
to Service Provider for periods 180 days or more prior to the current month
shall be at Distributor's discretion. The fees due under this Agreement shall
not apply to Fund Shares held by any Customer prior to the date of this
Agreement.
(g) If Service Provider utilizes a third party who has an
agreement with Distributor to provide some or all of the services set forth in
this Agreement and Service Provider wishes Distributor to directly pay such
third party for such services, the total payment due to the Service Provider or
the third party from Distributor for such services provided by such third party
on behalf of the Service Provider shall not exceed the fees set forth pursuant
to this Agreement. In no event shall Distributor make partial payments of fees
to both the Service Provider and any such third party.
4. Indemnification. The Service Provider shall indemnify
Distributor, Janus Services, 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)
- 45 -
directly resulting from Service Provider's negligent or willful act, omission or
error, or Service Provider's breach of this Agreement. Such indemnification
shall survive termination of the Agreement.
5. Approval of Informational Materials.
(a) No person is authorized to make any representations
concerning the Trust, the Funds, the Shares, or Distributor except those
representations contained in the then-current Prospectuses and SAIs for the
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 Funds 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.
(b) If Service Provider elects to include any materials
provided by Distributor, specifically Prospectuses, SAIs, shareholder reports or
proxy materials, on its website or in any other computer or electronic format,
Service Provider assumes sole responsibility for maintaining such materials in
the form provided by Distributor and for promptly replacing such materials with
all updates provided by Distributor.
6. 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 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 information on sales, redemptions and exchanges of Shares of each
Fund by state or jurisdiction of residence of individual Customers and any other
information requested by Distributor to enable Distributor or its affiliates to
properly register or report the sale of the 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.
7. Operations of the Funds. 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 Funds and the sale of the 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 Shares
of any Fund to any person, or to suspend or terminate the offering of the Shares
of any Fund, 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 Fund.
- 46 -
8. Proprietary Rights. Janus International Holding LLC ("Janus
Holding") or its affiliate is the sole owner of the name and xxxx "Xxxxx." All
references contained in this Agreement to "the name or xxxx `Janus'" shall
include but not be limited to the Janus logo, the website xxx.xxxxx.xxx and any
and all electronic links relating to such website. Neither the Service Provider,
nor its affiliates, employees, or agents shall, without prior written consent of
Janus Holding, use the name or xxxx "Xxxxx" or make representations regarding
the Trust, Distributor, Janus Holding, or their affiliates, or any products or
services sponsored, managed, advised, or administered by the Trust, Distributor,
Janus Holding or their affiliates, except those contained in the then-current
Prospectus and the then-current printed sales literature for the Shares of the
Funds. The Service Provider will make no use of the name or xxxx "Xxxxx" except
as expressly provided in this Agreement or expressly authorized by Janus Holding
in writing. All goodwill associated with the name and xxxx "Xxxxx" shall inure
to the benefit of Janus Holding or its affiliate. Upon termination of this
Agreement for any reason, the Service Provider shall immediately cease any and
all use of any Xxxxx xxxx(s).
9. 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.
10. 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 to enter into this
Agreement;
(c) The Service Provider is registered with the SEC as a
broker and dealer pursuant to the Securities Exchange Act of 1934 (the "Exchange
Act"), is a member in good standing of the NASD and is qualified to conduct
business under the laws of any applicable state in which the Shares may be sold,
or is not required to be so 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 Employee Retirement Income Security Act of 1974, as amended
("ERISA"), the Internal Revenue Code of 1986, as amended (the "Code"), federal
or state securities laws, or any other applicable law;
(e) The fee arrangement under this Agreement will be
disclosed to each Customer prior to the Service Provider's receipt of fees
hereunder;
(f) [SELECT ALTERNATIVE A OR B] A. [Neither Service
Provider, nor any affiliate, will be a "fiduciary" of the Customers as such term
is defined in Section 3(21) of
- 47 -
ERISA and Section 4975 of the Code.] B. [Service Provider will reduce the fees
it charges to the Customers by an amount equal to the fees paid pursuant to this
Agreement.] The receipt of the fees described in this Agreement by the Service
Provider will not constitute a non-exempt "prohibited transaction," as such term
is defined in Section 406 of ERISA and Section 4975 of the Code;
(g) If Service Provider intends to offer Shares to its
Customers as part of a fee-based account program, such program will comply with
any law, rule or regulation applicable to it including, but not limited to, the
safe harbor provisions of Rule 3a-4 under the 1940 Act;
(h) Each transaction shall be for the accounts of
Customers and not for Service Provider's own account;
(i) Any information Service Provider provides to
Customers concerning the Funds will be based on information contained in the
Prospectus or SAI for the Funds, or on promotion materials or sales literature
that the Distributor furnishes to the public;
(j) Service Provider will distribute Fund Prospectuses,
SAIs, proxy materials and other shareholder communications to Customers in
accordance with applicable regulatory requirements, except to the extent the
Distributor expressly undertakes in writing to do so;
(k) Service Provider will not effect any transactions
(including, without limitation, any purchases, exchanges and redemptions) in any
Fund Shares, registered in the name of, or beneficially owned by, any Customer,
unless to Service Provider's knowledge, such Customer has granted to Service
Provider full right, power and authority to effect such transactions on such
Customer's behalf;
(l) Service Provider will obtain from each Customer for
whom it acts as agent for the purchase of Fund Shares any taxpayer
identification number certification and such other information as may be
required from time to time under the Code, and the regulations thereunder, and
will provide Distributor or its designee with timely written notice of any
failure to obtain such taxpayer identification number certification or other
information in order to enable implementation of any required withholding; and
(m) Service Provider is in compliance with all applicable
anti-money laundering laws, rules and regulations including, but not limited to,
the U.S.A. PATRIOT Act of 2001, P.L. 107-56.
11. Confidentiality of Customer Information. The names, addresses
and other information concerning Customers are and shall remain the sole
property of Service Provider. Neither the Distributor, Janus Services, their
affiliates, nor their officers, directors, employees or agents, or any control
person of the foregoing persons, shall use such names, addresses or other
information for any purpose except in connection with the performance of the
Distributor's and Janus Services' duties and responsibilities hereunder and
except for shareholder servicing and informational mailings relating to the
Funds. Notwithstanding the foregoing, this Section 11
- 48 -
shall not prohibit the Distributor, Janus Services or any of their affiliates
from using for any purpose the names, addresses or other information concerning
any of Service Provider's Customers if such names, addresses or other
information are obtained in any manner other than from Service Provider pursuant
to this Agreement. The provisions of this Section 11 shall survive termination
of this Agreement.
12. Market Timing. Service Provider acknowledges that Distributor
has the right to refuse any purchase order for any reason, particularly if the
Trust determines that a Fund would be unable to invest the money effectively in
accordance with its investment policies or would otherwise be adversely affected
due to the size of the transaction, frequency of trading by the account or other
factors.
13. Termination.
(a) Unless sooner terminated with respect to any Fund,
this Agreement will continue with respect to a Fund only if 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 Fund 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 Fund in the event of its assignment (as such term is defined in the
0000 Xxx) with respect to such Fund. This Agreement may be terminated with
respect to any Fund by the Distributor or by the Service Provider, without
penalty, upon 60 days' prior written notice to the other party, with a copy to
Janus Services. This Agreement may also be terminated with respect to any Fund
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 Fund or any agreement relating to such Plan,
including this Agreement, or by a vote of a majority of the Shares of such Fund
on 60 days' written notice.
(c) In addition, any 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.
14. 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
- 49 -
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.
(e) All notices and other communications to Service
Provider, Janus Services or Distributor will be duly given if mailed or faxed to
the address set forth below, or to such other address as any party may provide
in writing to the other parties.
If to Distributor: If to Janus Services
Janus Distributors LLC Janus Services LLC
000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000 Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel Attn: General Counsel
If to the Service Provider:
____________________________
____________________________
____________________________
____________________________
JANUS DISTRIBUTORS LLC ________________________________
(Name of Service Provider)
By:__________________________________ By:_____________________________
Name: Xxxxxx X. Xxxx Name:___________________________
Title: Vice President Title:__________________________
JANUS SERVICES LLC
By:__________________________________
Name: Xxxxxx X. Xxxx
- 50 -
Title: Vice President
- 51 -
EXHIBIT A TO DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
SECTION 1
Fund and Share class One-Time Fee Factor
-------------------- -------------------
Class A [___%]
Class C -- * 1.00%
SECTION 2
Share class Fee Factor per Annum
----------- --------------------
Class A 0.25%
Class C * 1.00%
Investor Shares 0.35%
The average aggregate amount invested each month in the Shares of each
Fund by Customers is multiplied by a pro-rata fee factor. The pro rata fee
factor is calculated by: (a) dividing the per annum factor set forth above for
the Shares of each Fund 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
totaling the aggregate investment by Customers who receive services hereunder
from the Service Provider (Share NAV multiplied 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.
----------
*Certain Funds may become closed to new investors after the date of this
Agreement. If a certain Fund closes, such Fund may no longer be available for
purchase or may be purchased only under certain restrictions as determined by
that Fund and set forth in the Funds' then-current Prospectus.
- 52 -
EXHIBIT B TO DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
Service Provider shall, at Service Provider's expense, provide the following
services for Customers:
Receive, aggregate, and process Customer orders;
Issue confirmations for transactions by Customers;
Maintain records for Customers, which records shall reflect Shares
purchased and redeemed, including the date and price for all
transactions, and Share balances;
Disburse or credit to Customers, and maintain records of, all proceeds
of redemptions of Shares and all other distributions not reinvested in
Shares; and
Prepare and transmit to Customers periodic account statements showing
the total number of Shares owned by the Customers as of the statement
closing date, purchases and redemptions of Shares by the Customers
during the period covered by the statement, and the dividends and other
distributions paid to the Customers during the statement period
(whether paid in cash or reinvested in Shares).
Other (specify)________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
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EXHIBIT C TO DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
NON-NSCC TRADING AND SETTLEMENT REQUIREMENTS
1. TRADING REQUIREMENTS
A. All trades must be netted (i.e., one purchase or redemption
per Fund, per account). For example: a purchase for $2,000 and a redemption for
$500 should be netted into one purchase for $1,500.
B. All trades must be submitted in dollars. No Share trades will
be accepted.
C. No exchanges will be accepted, sell/buys must be requested.
D. Electronic or typed trade requests must be received by Janus
Services prior to 9:00 a.m. EST.
E. All trades will be processed at the public offering price.
2. SETTLEMENT REQUIREMENTS
A. Service Provider will send Janus Services one combined
purchase wire for all purchase orders by 2:00 p.m. EST on Day Two.
X. Xxxxx Services will send one combined wire for all redemption
proceeds by 4:00 p.m. EST on Day Two.
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