AMENDED AND RESTATED DISTRIBUTION AGREEMENT
Exhibit (e)(8)
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED DISTRIBUTION AGREEMENT (the “Agreement”), made as of the
31st day of May, 2012, by and between Janus Investment Fund, a business trust organized
and existing under the laws of the Commonwealth of Massachusetts (hereinafter called “JIF” or the
“Trust”), and Janus Distributors LLC, a limited liability company organized and existing under the
laws of the State of Delaware (hereinafter called the “Distributor” or “Janus Distributors”). This
Agreement applies separately to each portfolio of JIF whether now existing or hereafter created.
WITNESSETH:
WHEREAS, JIF is engaged in business as an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the “1940 Act”); and
WHEREAS, the Distributor is registered as a broker-dealer under the Securities Exchange Act of
1934, as amended (the “1934 Act”) and the laws of each state or jurisdiction in which the
Distributor engages in business to the extent such law requires, and is a member of the Financial
Industry Regulatory Authority (“FINRA”) (such registrations and membership are referred to
collectively as the “Registrations”); and
WHEREAS, JIF and the Distributor are parties to an Amended and Restated Distribution Agreement
dated June 18, 2002 as amended, and wish to amend and restate such agreement in connection with the
addition of multiple share classes as part of the merger of the Janus Adviser Series into JIF;
WHEREAS, JIF desires the Distributor to act as the underwriter for the public offering of the
Class D Shares, Class L Shares, Class T Shares, Class A Shares, Class C Shares, Class N Shares,
Class R Shares, Class S Shares and Class I Shares of beneficial interest (collectively, “Shares”)
of each of JIF’s portfolios offering such Shares, whether now existing or hereafter created
(hereinafter each called a “Fund” and collectively the “Funds”).
WHEREAS, the Trust has adopted on behalf of each of the Class A Shares, Class C Shares, Class
S Shares and Class R Shares of each Fund offering such Shares a separate Distribution and
Shareholder Servicing Plan pursuant to Rule 12b-1 under the 1940 Act; and
NOW, THEREFORE, in consideration of the premises and the mutual promises hereinafter set
forth, the parties hereto agree as follows:
1. Appointment. JIF appoints Janus Distributors to act as distributor of its Shares.
2. Delivery of Fund Documents. JIF has furnished the Distributor with properly
certified or authenticated copies of each of the following in effect on the date hereof and shall
furnish the Distributor from time to time properly certified or authenticated copies of all
amendments or supplements thereto:
| (a) | Agreement and Declaration of Trust; |
| (b) | By-Laws; and | ||
| (c) | Resolutions of the Board of Trustees (hereinafter referred to as the “Trustees”) selecting the Distributor as distributor and approving this form of agreement and authorizing its execution. |
JIF shall furnish the Distributor promptly with copies of any registration statements filed by
it with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as
amended, (the “1933 Act”) or the 1940 Act, together with any financial statements and exhibits
included therein, and all amendments or supplements thereto hereafter filed.
JIF shall also furnish the Distributor with such other certificates or documents as the
Distributor may from time to time, in its discretion, reasonably deem necessary or appropriate in
order to properly perform its duties under this Agreement.
3. Solicitation of Orders for Purchase of Shares.
(a) Subject to the provisions of Paragraphs 4 and 7 hereof, and to such minimum purchase
requirements as may from time to time be indicated in each Fund’s Prospectus or Statement of
Additional Information, the Distributor is authorized to solicit, as agent on behalf of JIF,
unconditional orders for purchases of each Fund’s Shares authorized for issuance and registered
under the 1933 Act, provided that:
| (1) | The Distributor shall act solely as a disclosed agent on behalf of and for the account of JIF; | ||
| (2) | The Distributor shall confirm or arrange with the transfer agent for the Shares to confirm all purchases of the Shares. Such confirmation shall conform to the requirements of Rule 10b-10 under the 1934 Act and shall clearly state that the Distributor is acting as agent in the transaction; | ||
| (3) | The Distributor shall have no liability for payment for purchases of Shares it sells as agent; | ||
| (4) | Each order to purchase Shares of a Fund received by the Distributor shall be subject to acceptance by an officer of JIF and entry of the order on such Fund’s records or shareholder accounts and is not binding until so accepted and entered; and | ||
| (5) | With respect to the Shares of each Fund, the Distributor may appoint sub-agents or distribute through dealers (pursuant to the Intermediary Services Agreement applicable to that class), the Distributor’s own sales representatives or otherwise as the Distributor may determine from time to time. |
The purchase price of a Fund’s Shares to the public shall be the public offering price
described in Paragraph 6 hereof.
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(b) In consideration of the rights granted to the Distributor under this Agreement, the
Distributor will use its best efforts (but only in states and jurisdictions in which the
Distributor may lawfully do so) to solicit from investors unconditional orders to purchase Shares
of each Fund. JIF shall make available to the Distributor without cost to the Distributor such
number of copies of each Fund’s currently effective Prospectus and Statement of Additional
Information and copies of all information, financial statements and other papers that the
Distributor requires for use in connection with the distribution of Shares.
4. Solicitation of Orders to Purchase Shares by Fund. The rights granted to the
Distributor shall be non-exclusive in that JIF reserves the right to otherwise solicit purchases
from, and sell Shares to, investors, including without limitation the right to issue Shares in
connection with the merger or consolidation of any other investment company, trust or personal
holding company with a Fund, or a Fund’s acquisition, by the purchase or otherwise, of all or
substantially all of the assets of an investment company, trust or personal holding company, or
substantially all of the outstanding shares or interests of any such entity.
5. Sales Commission, Compensation and Expenses.
(a) Except as otherwise agreed, the Trust shall pay all charges of its transfer, shareholder
recordkeeping, dividend disbursing and redemption agents, if any; all expenses of preparation,
printing and mailing of confirmations; all expenses of preparation and printing of annual or more
frequent revisions of each Fund’s prospectus and statement of additional information and of
supplying copies thereof to shareholders; all expenses of registering and maintaining the
Registrations of the Trust under the 1940 Act and the sale of the Trust’s Shares under the 1933
Act; all expenses of qualifying and maintaining qualifications of each Fund and of the Shares for
sale under securities laws of various states or other jurisdictions and of registration and
qualification of each Fund under all laws applicable to the Trust or its business activities.
(b) The Distributor may receive from the Trust any amounts authorized for payment to the
Distributor out of the applicable Distribution and Shareholder Servicing Plans, if any, for the
Shares. The Distributor may use such payments, in its discretion, to compensate dealers, third
party service providers, or other entities who provide distribution and/or services to the extent
permitted by the Distribution and Shareholder Servicing Plans. The Distributor may retain some or
all of such payments pursuant to the Distribution and Shareholder Servicing Plans in certain
circumstances, including when there is no broker of record or when certain qualification standards
have not been met by the broker of record.
(c) The Distributor shall be entitled to impose a charge on the sale of the Class A Shares in
the amount set forth, if any, in the then current prospectus and statements of additional
information for such Class. Such sales charges (subject to any reductions or eliminations of sales
charges as set forth in the then current prospectus and statements of additional information for
such Class) shall be an amount mutually agreed upon by the Distributor and the Trust and equal to
the difference between the net asset value and the public offering price of Class A Shares or Class
C Shares, if any. The Distributor may re-allow sub-agents or dealers such sales charges, including
payment exceeding the total sales charges, as the Distributor shall deem advisable so long as any
such sales charges and additional compensation are set forth in the then current prospectus and
statements of additional information of such Class to the extent required by all applicable
securities laws. The Distributor may retain a contingent deferred sales charge, if applicable, on
Class A Shares and Class C
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Shares redeemed by the holders thereof, in the amount and on the terms set forth in the then
current prospectus and statements of additional information for those Classes.
6. Public Offering Price. All solicitations by the Distributor pursuant to this
Agreement shall be for orders to purchase Shares of a Fund at the public offering price set forth
in the then current prospectus and statements of additional information for the Shares. The public
offering price for each accepted subscription for a Fund’s Shares will be the net asset value per
share next determined by the Trust after it accepts such subscription, plus, with respect to Class
A Shares, an initial sales charge equal to a percentage of the net asset value of the Shares, if
applicable. Class A Shares and Class C Shares may also be sold subject to a contingent deferred
sales charge, in such amount and on such terms as set forth in the then current prospectus and
statements of additional information for Class A Shares and Class C Shares. The net asset value
per share of the Shares shall be determined in the manner provided in the Trust’s Declaration of
Trust as now in effect or as it may be amended from time to time, and as reflected in the then
current prospectus and statements of additional information covering the Shares.
7. Suspension of Sales. If and whenever the determination of a Fund’s net asset value
is suspended and until such suspension is terminated, no further orders for Shares shall be
accepted by JIF except such unconditional orders placed with JIF and accepted by it before the
suspension. In addition, JIF reserves the right to suspend sales of Shares of a Fund if, in the
judgment of the Trustees, it is in the best interest of the Fund to do so, such suspension to
continue for such period as may be determined by the Trustees; and in that event, (i) at the
direction of JIF, the Distributor shall suspend its solicitation of orders to purchase Shares of
such Fund until otherwise instructed by JIF, and (ii) no orders to purchase Shares of such Fund
shall be accepted by JIF while such suspension remains in effect unless otherwise directed by its
Trustees.
8. Authorized Representations. The Distributor is not authorized by JIF to give on
behalf of any Fund any information or to make any representations in connection with the sale of
Shares other than the information and representations contained in such Fund’s registration
statement filed with the SEC under the 1933 Act and/or the 1940 Act, covering Shares, as such
registration statement or such Fund’s Prospectus or Statement of Additional Information may be
amended or supplemented from time to time, or contained in shareholder reports or other material
that may be prepared by or on behalf of such Fund or approved by such Fund for the Distributor’s
use.
9. Registration of Additional Shares. JIF hereby agrees to register an indefinite
number of Shares pursuant to Rule 24f-2 under the 1940 Act. JIF will, in cooperation with the
Distributor, take such action as may be necessary from time to time to qualify the Shares of each
Fund (so registered or otherwise qualified for sale under the 1933 Act), in any state or
jurisdiction mutually agreeable to the Distributor and JIF, and to maintain such qualification;
provided, however, that nothing herein shall be deemed to prevent JIF from registering the Shares
without approval of the Distributor in any state it deems appropriate.
10. Conformity With Law. The Distributor agrees that in soliciting orders to purchase
Shares it shall duly conform in all respects with applicable federal and state laws and with the
rules and regulations of FINRA. The Distributor will use its best efforts to maintain its
Registrations in good standing during the term of this Agreement and will promptly notify JIF in
the event of the suspension or termination of any of the Registrations.
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11. Anti-Money Laundering.
a) The Distributor agrees that it will establish and implement an anti-money laundering
program that duly conforms in all respects with current applicable federal anti-money laundering
laws and regulations.
b) The Distributor shall create and maintain books and records as required for the Trust by
the USA PATRIOT Act and the Bank Secrecy Act, as amended (collectively, the “AML Acts”), and make
such books and records available for inspection by the U.S. Department of Treasury’s Financial
Crimes Enforcement Network and the Securities and Exchange Commission as may be requested pursuant
to the AML Acts. Distributor will notify the Trust of any such requests.
12. Independent Contractor. The Distributor shall be an independent contractor and
neither the Distributor, nor any of its officers, directors, employees, or representatives is or
shall be an employee of JIF in the performance of the Distributor’s duties hereunder. The
Distributor shall be responsible for its own conduct and the employment, control, and conduct of
its agents and employees and for injury to such agents or employees or to others through its agents
and employees and agrees to pay or to insure that persons other than JIF will pay all employee
taxes due with respect to the activities of its agents and employees.
13. Indemnification. The Distributor agrees to indemnify and hold harmless JIF and
each of the Trustees and its officers, employees and representatives and each person, if any, who
controls JIF within the meaning of Section 15 of the 1933 Act against any and all losses,
liabilities, damages, claims and expenses (including the reasonable costs of investigating or
defending any alleged loss, liability, damage, claim or expense and reasonable legal counsel fees
incurred in connection therewith) to which JIF or such Trustees, officers, employees,
representatives, or controlling person or persons may become subject under the 1933 Act, under any
other statute, at common law, or otherwise, arising out of the acquisition of any Shares of any
Fund by any person which (i) may be based upon any wrongful act by the Distributor or any of the
Distributor’s directors, officers, employees or representatives, or (ii) may be based upon any
untrue statement or alleged untrue statement of a material fact contained in a registration
statement, Prospectus, Statement of Additional Information, shareholder report or other information
covering Shares of such Fund filed or made public by JIF or any amendment thereof or supplement
thereto or the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, if such statement or omission
was made in reliance upon information furnished to such Fund by the Distributor in writing. In no
case (i) is the Distributor’s indemnity in favor of JIF, or any person indemnified, to be deemed to
protect JIF or such indemnified person against any liability to which JIF or such person would
otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence in the
performance of its or such person’s duties or by reason of its or such person’s reckless disregard
of its or such person’s obligations and duties under this Agreement, or (ii) is the Distributor to
be liable under its indemnity agreement contained in this paragraph with respect to any claim made
against JIF or any person indemnified unless JIF or such person, as the case may be, shall have
notified the Distributor in writing of the claim within a reasonable time after the summons, or
other first written notification, giving information of the nature of the claim served upon JIF or
upon such person (or after JIF or such person shall have received notice of such service on any
designated agent). However, failure to notify the Distributor of any such claim shall not relieve
the Distributor from any liability that the Distributor
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may have to JIF or any person against whom such action is brought otherwise than on account of
the Distributor’s indemnity agreement contained in this Paragraph.
The Distributor shall be entitled to participate, at its own expense, in the defense, or, if
Distributor so elects, to assume the defense of any suit brought to enforce any such claim but, if
the Distributor elects to assume the defense, such defense shall be conducted by legal counsel
chosen by the Distributor and satisfactory to the persons indemnified who are defendants in the
suit. In the event that the Distributor elects to assume the defense of any such suit and retain
such legal counsel, persons indemnified who are defendants in the suit shall bear the fees and
expenses of any additional legal counsel retained by them. If the Distributor does not elect to
assume the defense of any such suit, the Distributor will reimburse persons indemnified who are
defendants in such suit for the reasonable fees of any legal counsel retained by them in such
litigation.
JIF agrees to indemnify and hold harmless the Distributor and each of its directors, officers,
employees, and representatives and each person, if any, who controls the Distributor within the
meaning of Section 15 of the 1933 Act against any and all losses, liabilities, damages, claims or
expenses (including the reasonable costs of investigating or defending any alleged loss, liability,
damage, claim or expenses and reasonable legal counsel fees incurred in connection therewith) to
which the Distributor or such of its directors, officers, employees, representatives or controlling
person or persons may become subject under the 1933 Act, under any other statute, at common law, or
otherwise arising out of the acquisition of any Shares by any person which (i) may be based upon
any wrongful act by JIF or any of the Trustees, or JIF’s officers, employees or representatives
other than the Distributor, or (ii) may be based upon any untrue statement or alleged untrue
statement of a material fact contained in a registration statement, Prospectus, Statement of
Additional Information, shareholder report or other information covering Shares filed or made
public by JIF or any amendment thereof or supplement thereto, or the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading unless such statement or omission was made in reliance upon information
furnished by the Distributor to JIF. In no case (i) is JIF’s indemnity in favor of the Distributor
or any person indemnified to be deemed to protect the Distributor or such indemnified person
against any liability to which the Distributor or such indemnified person would otherwise be
subject by reason of willful misfeasance, bad faith, or gross negligence in the performance of its
or such person’s duties or by reason of its or such person’s reckless disregard of its or such
person’s obligations and duties under this Agreement, or (ii) is JIF to be liable under its
indemnity agreement contained in this Paragraph with respect to any claim made against the
Distributor or any person indemnified unless the Distributor, or such person, as the case may be,
shall have notified JIF in writing of the claim within a reasonable time after the summons, or
other first written notification, giving information of the nature of the claim served upon the
Distributor or upon such person (or after the Distributor or such person shall have received notice
of such service on any designated agent). However, failure to notify JIF of any such claim shall
not relieve JIF from any liability which JIF may have to the Distributor or any person against whom
such action is brought otherwise than on account of JIF’s indemnity agreement contained in this
Paragraph.
JIF shall be entitled to participate, at its own expense, in the defense or, if JIF so elects,
to assume the defense of any suit brought to enforce such claim but, if JIF elects to assume the
defense, such defense shall be conducted by legal counsel chosen by JIF and satisfactory to the
persons indemnified who are defendants in the suit. In the event that JIF elects to assume the
defense of any such suit and retain such legal counsel, the persons
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indemnified who are defendants in the suit shall bear the fees and expenses of any additional
legal counsel retained by them. If JIF does not elect to assume the defense of any such suit, JIF
will reimburse the persons indemnified who are defendants in such suit for the reasonable fees and
expenses of any legal counsel retained by them in such litigation.
14. Duration and Termination of this Agreement. With respect to each Fund and the
Distributor, this Agreement shall become effective as of the date first written above and unless
terminated as provided herein, shall remain in effect through February 1, 2011, and from year to
year thereafter, but only so long as such continuance is specifically approved at least annually
(a) by a vote of a majority of the Trustees who are not parties to this agreement or interested
persons of any such party, voting in person at a meeting called for the purpose of voting on such
approval, and (b) by the vote of either a majority of the Trustees or a majority of the outstanding
voting securities of the Fund. If the continuance of this Agreement is not approved as to a Fund,
the Distributor may continue to render to that Fund the services described herein in the manner and
to the extent permitted by the 1940 Act and the rules and regulations thereunder, and this
Agreement shall continue with respect to those Funds that have approved its continuance. This
Agreement may be terminated by and between an individual Fund and the Distributor at any time,
without the payment of any penalty (a) on 60 days’ written notice, by a vote of a majority of the
Trustees or by a vote of a majority of the outstanding voting securities of such Fund, or (b) by
the Distributor. Without prejudice to any other remedies of JIF, JIF may terminate this Agreement
at any time immediately on written notice in the event of the Distributor’s failure to fulfill any
of its obligations hereunder, including the termination or suspension of any of the Registrations.
This Agreement will automatically terminate in the event of its assignment.
In interpreting the provisions of this Paragraph 14, the definitions contained in Section 2(a)
of the 1940 Act (particularly the definitions of “interested person”, “assignment”, and “majority
of the outstanding voting securities “) shall be applied.
15. Amendment of this Agreement. No provision of this Agreement may be changed,
waived, discharged, or terminated orally, but only by an instrument in writing signed by each party
against which enforcement of the change, waiver, discharge, or termination is sought. All material
amendments to this Agreement must be approved by votes of a majority of both (a) the Trustees of
the Trust and (b) those Trustees of the Trust who are not parties to this Agreement or interested
persons of any such party, voting in person at a meeting called for the purpose of voting on the
Agreement. If the Trust should at any time deem it necessary or advisable in the best interests of
a Fund or class that any amendment of this Agreement be made in order to comply with the
recommendations or requirements of the SEC or any other governmental authority or to obtain any
advantage under state or Federal or tax laws and notifies the Distributor of the form of such
amendment, and the reasons therefore, and if the Distributor should decline to assent to such
amendment, the Trust may terminate this Agreement as to that Fund or class forthwith. If the
Distributor should at any time request that a change be made in JIF’s Agreement and Declaration of
Trust or Bylaws or in its methods of doing business, or in the registration statement, the
prospectus or the statement of additional information of any Fund, in order to comply with any
requirements of Federal or state law or regulations of the SEC, or of a national securities
association of which the Distributor is or may be a member, relating to the sale of Shares, and the
Trust should not make such necessary changes within a reasonable time, the Distributor may
terminate this Agreement as to that Fund or class forthwith.
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16. Limitation of Personal Liability. The parties to this Agreement acknowledge and
agree that all liabilities of JIF arising, directly or indirectly, under this Agreement, of any and
every nature whatsoever, shall be satisfied solely out of the assets of JIF and that no Trustee,
officer, employee or agent, or holder of shares of beneficial interest of JIF, whether past,
present or future, shall be personally liable for any of such liabilities. JIF’s Agreement and
Declaration of Trust, as amended from time to time, is on file in the Office of the Secretary of
State of The Commonwealth of Massachusetts, and describes in detail the respective responsibilities
and limitations on liability of the Trustees, officers and holders of shares of beneficial interest
of JIF.
17. Notification by JIF. JIF agrees to advise the Distributor immediately:
(a) of any request by the SEC for amendments to JIF’s Registration Statement insofar as it
relates to any of the Funds, the Prospectus or the Statement of Additional Information or for
additional information,
(b) in the event of the issuance by the SEC of any stop order suspending the effectiveness of
JIF’s Registration Statement insofar as it relates to any of the Funds, the Prospectus or the
Statement of Additional Information or the initiation of any proceeding for that purpose,
(c) of the occurrence of any material event which makes untrue any statement made in JIF’s
Registration Statement insofar as it relates to any of the Funds, the Prospectus or the Statement
of Additional Information or which requires the making of a change in order to make the statements
therein not misleading and
(d) of all actions of the SEC with respect to any amendments to JIF’s Registration Statement
insofar as they are related to the shares of any of the Funds, the Prospectus or the Statement of
Additional Information which may from time to time be filed with the SEC under the 1933 Act.
18. Privacy. Each party agrees that, with respect to “non-public personal
information,” as defined in Regulation S-P, it will comply with Regulation S-P and will not
disclose any non-public personal information received in connection with this Agreement to any
other party, except to the extent necessary to carry out the services set forth in this Agreement
or as otherwise permitted by Regulation S-P.
19. Miscellaneous. The captions in this Agreement are included for convenience of
reference only, and in no way define or limit any of the provisions hereof or otherwise affect
their construction or effect. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
20. Governing Law. This Agreement shall be governed by, and construed in accordance
with, applicable federal law and with the laws of the state of Colorado, exclusive of conflicts of
laws.
21. Severability. The parties intend every provision of this Agreement to be
severable. If a court of competent jurisdiction determines that any term or provision is illegal
or invalid for any reason, the illegality or invalidity shall not affect the validity of the
remainder of
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this Agreement. In such case, the parties shall in good faith modify or substitute such
provision consistent with the original intent of the parties.
22. Entire Agreement. This Agreement is the entire contract between the parties
relating to the subject matter hereof and supersedes all prior agreements between the parties
relating to the subject matter hereof.
23. Notice. Any notice required or permitted to be given by a party to this Agreement
or to any other party hereunder shall be deemed sufficient if delivered in person or sent by
registered or certified mail, postage prepaid, addressed by the party giving notice to each such
other party at the address provided below or to the last address furnished by each such other party
to the party giving notice.
| If to the Trust: | 000 Xxxxxxx Xxxxxx | |||
| Xxxxxx, Xxxxxxxx 00000 | ||||
| Attn: Secretary | ||||
| If to the Distributor: | 000 Xxxxxxx Xxxxxx | |||
| Xxxxxx, Xxxxxxxx 00000 | ||||
| Attn: Secretary |
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above
written.
| ATTEST: | JANUS DISTRIBUTORS LLC | |||||||
/s/ Xxxx Xxxxxxxxx
|
By: | /s/ Xxxxxxxx X. Xxxxxxxxx
|
||||||
| ATTEST: | JANUS INVESTMENT FUND | |||||||
/s/ Xxxx Xxxxxxxxx
|
By: | /s/ Xxxxxxxxx Xxxxxxxxxx-Xxxxxx | ||||||
| Xxxxxxxxx Xxxxxxxxxx-Xxxxxx, Vice President, Chief Legal Counsel and Secretary |
||||||||
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