Exhibit (e)(6)
FORM OF INTERMEDIARY SERVICES AGREEMENT
JANUS INVESTMENT FUND
This Intermediary Services Agreement ("Agreement") is made as of _____ by
and among Janus Distributors LLC (the "Distributor"), Janus Services LLC ("Janus
Services"), each a Delaware limited liability company, and _____ ("Service
Provider"), a _____ corporation.
RECITALS
A. The Distributor serves as the Distributor and principal underwriter for
the Janus Investment Fund ( the "Trust"), an open-end management investment
company registered with the Securities and Exchange Commission (the "SEC") under
the Investment Company Act of 1940 (the "1940 Act").
B. The Trust is comprised of a number of investment portfolios (each, a
"Fund") and issues a separate series of shares of beneficial interest (the
"Shares") for each Fund representing a fractional undivided interest in that
Fund. Each series of shares may be divided into several classes ("Classes").
C. All Shares of the Trust are registered with the SEC under the
Securities Act of 1933, as amended (the "1933 Act") on Form N-1A. The term
"registration statement," as used herein, means the Trust's 1933 Act
registration statement on Form N-1A filed with the SEC, including all
prospectuses therein (each, a "Prospectus"), statements of additional
information therein (each, an "SAI") and exhibits thereto, as of the effective
date of the most recent post-effective amendment thereto.
X. Xxxxx Services serves as the transfer agent for the Trust and has been
designated by the Trust and the Distributor as the party authorized to receive
orders for transactions in Shares.
E. The Distributor and 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. Service Provider desires to submit orders to effect transactions in
Shares for investors. Such investors may include existing and prospective
customers ("Customers") of Service Provider and/or broker-dealers and other
third party administrators utilizing its order processing and shareholder
servicing facilities ("Third Party Brokers/TPAs") to effect transactions in
Shares, as well as retirement plans (referred to herein as "Retirement Plan
Customers") for which Service Provider may provide recordkeeping and other
administration services, such as the maintenance of account records for
participants ("Plan Participants") and/or the provision of other administrative
services, in which case, the term "Customers," as used in
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this Agreement, shall include Retirement Plan Customers and Plan Participants,
unless otherwise indicated.
NOW THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Shares Covered. Schedule 1 to this Agreement shows the Funds and Share
classes subject to this Agreement. Service Provider acknowledges and agrees that
not all Share classes are available for all Funds, and certain Funds may become
closed to new investors and new purchases at any time after the date of this
Agreement.
2. Services of Service Provider.
(a) Service Provider shall provide the specific services (the
"Services") set forth on Schedule 2 to this Agreement.
(b) Service Provider shall provide such office space and equipment,
telephone facilities, and personnel as may be reasonably necessary or beneficial
in order to provide the Services.
(c) Service Provider shall maintain and preserve all records as
required by applicable laws, rules, regulations and regulatory guidance to be
maintained and preserved in connection with providing the Services. Upon the
reasonable request of the Distributor or the Trust, Service Provider shall
provide the Distributor, the Trust or the representative of either, copies of
all such records.
(d) Service Provider acknowledges and agrees that the Distributor,
Janus Services, the Funds or their affiliates shall not be responsible for any
complaints or inquiries from Customers about Service Provider's performance of
Services under this Agreement.
(e) Unless otherwise indicated on Schedule 2 to this Agreement,
Service Provider shall prepare and transmit to Customers confirmations of all
Customer instructions and periodic account statements, to the extent required to
be so transmitted to Customers by applicable laws, rules, regulations and
regulatory guidance and in accordance with applicable time frames.
(f) Upon the reasonable request of Distributor or Janus Services,
Service Provider shall provide copies of all reports and records relating to the
Funds deemed necessary by either of them for either of them to carry out this
Agreement or for the Funds or their representatives to comply with applicable
legal requirements, including, but not limited to, information regarding sales
by state or jurisdiction or residence of individual Customers for the purpose of
meeting state regulatory requirements. Service Provider shall cooperate with the
Distributor in the preparation of reports to the Trust's Board of Trustees
concerning this Agreement and the carrying out of due diligence with regard to
the information set forth therein.
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3. Submission, Processing and Settlement of Orders.
(a) Unless otherwise indicated on Schedule 3 to this Agreement,
Service Provider shall submit orders for the purchase, redemption or exchange of
Shares in accordance with Schedule 4 to this Agreement.
(b) Janus Services hereby authorizes Service Provider to act as
Janus Services' agent, and Service Provider hereby agrees to act as Janus
Services' agent, for the limited purpose of accepting orders for the purchase
and redemption of Shares of the Funds under this Agreement. Such authorization
shall not apply in the case of an order submitted by Service Provider to another
financial intermediary for submission to Janus Services. In that case, Service
Provider shall act solely as agent of the Customer and its taking of the order
shall not be deemed to be the acceptance of an order as agent of Janus Services.
(c) Payment for net purchases and redemptions shall be wired
pursuant to the settlement requirements set forth on Schedule 4 to this
Agreement. In the event of extraordinary market conditions affecting any such
redemption, however, Janus Services may delay redemption for up to five (5)
business days, or longer to the extent permitted under Section 22(e) of the 1940
Act.
(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, and provided further that, in the
case of Retirement Plan Customers and Plan Participants, Janus Services will
accept the account only at the Retirement Plan level. 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.
(e) 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, excessive trading
and redemption fees. 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 neither Janus Services nor the Distributor shall 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.
(f) Service Provider acknowledges and agrees that 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 Customer. Service Provider
acknowledges and agrees 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
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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.
(g) Orders for the purchase of Fund Shares shall be executed at the
then-current public offering price per Share (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 or redemption fee, unless otherwise waived in
accordance with the terms of the applicable Prospectus.
(h) Service Provider agrees that it: (i) shall assume responsibility
for any loss to the Fund caused by a correction to any order placed by Service
Provider that is made subsequent to the trade date for the order, provided such
order correction was not based on any negligence on the Distributor's part; and
(ii) will immediately pay such loss to the Fund upon notification.
(i) With respect to NAV information, Janus Services shall make the
determination as to whether an error in the NAV has occurred and is a material
error, as defined in current SEC guidelines, and Janus Services shall control
its correction of such error in accordance with SEC guidelines and its own
internal policies. In no event shall delays in providing prices due to
conditions beyond the control of Janus Services or the Trust, such as acts of
God, fires, electrical or phone outages, be considered pricing errors and
neither Janus Services nor the Trust shall be required to reimburse for such
delays. Janus Services shall use the same standards with respect to Share prices
for the Service Provider as for all other holders of Shares of the Funds.
4. Late Trading. Service Provider certifies that it is, and at all times
during the term of this Agreement shall be, following all relevant rules and
regulations, as well as internal policies and procedures, regarding "forward
pricing" and the handling of mutual fund orders on a timely basis. As evidence
of its compliance, Service Provider shall:
(a) permit Janus Services, the Distributor or their agents to audit
its operations, as well as any books and records preserved in connection with
its provision of services under this Agreement;
(b) provide Janus Services or the Distributor with the results of a
Statement on Auditing Standards No. 70 (SAS 70) review or similar report of
independent auditors as soon as practicable following execution of this
Agreement; or
(c) provide annual certification to Janus Services or the
Distributor that it is following all relevant rules, regulations, and internal
policies and procedures regarding "forward pricing" and the handling of mutual
fund orders on a timely basis.
5. Compensation and Fees.
(a) In return for providing the Services, Service Provider shall be
entitled to the compensation and/or fees outlined on Schedule 3 to this
Agreement. Notwithstanding any
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provision to the contrary herein, Service Provider and the Distributor mutually
agree to waive all contingent deferred sales charges on Shares redeemed for
Retirement Plan Customers or for certain other Customers, in accordance with the
terms of the Prospectus. To the extent that the compensation and/or fees
outlined on Schedule 3 include 12b-1 fees, Service Provider acknowledges and
agrees that: (i) the Distributor's obligation to pay is limited solely to the
proceeds of the 12b-1 fees received from the Trust; (ii) the provisions of any
Rule 12b-1 Plan and distribution agreement between the Funds and the Distributor
in effect on the date of this Agreement or to be adopted in the future shall
control over this Agreement in the event of any inconsistency; and (iii) all
payments under any Rule 12b-1 Plan are subject to limitations contained in the
Rule 12b-1 Plan and distribution agreement and may be varied or discontinued at
any time.
(b) For all orders processed via the NSCC Systems, the Distributor
will daily calculate and pay monthly any asset-based fees payable pursuant to
Schedule 3 to this Agreement, and will make such payment to the Service
Provider. For orders processed manually, the Distributor will calculate and pay
such fees bi-monthly.
(c) Each payment will be accompanied by a statement showing the
calculation of the amounts payable by the Distributor and such other supporting
data as may be reasonably requested by the Service Provider.
(d) Payments to Service Provider for periods 180 days or more prior
to the current month shall be at the Distributor's discretion. The fees due
under this Agreement shall not apply to Fund Shares held by or for any Customer
prior to the date of this Agreement.
(e) If Schedule 3 to this Agreement indicates that the payment for
Services provided by Service Provider is to be paid to a third party that has an
agreement with the Distributor and/or Janus Services, no payment shall be made
directly to Service Provider hereunder. Service Provider acknowledges and agrees
that compensation and/or fees paid in such case to the third party shall not
exceed the fees set forth on Schedule 3. Service Provider further acknowledges
and agrees that, when placing trades through third parties with which Janus
Services and/or the Distributor has agreements, Janus Services and/or the
Distributor will process amounts based solely on the information provided by
such third parties at the time of account set-up. If such third parties fail to
designate Service Provider as the recipient for compensation and/or fees, Janus
Services and/or the Distributor shall not be responsible for payment of disputed
balances to Service Provider. In no event shall Janus Services and/or the
Distributor make partial payments of fees to both the Service Provider and any
such third party.
(f) If Service Provider submits orders for Third Party Brokers/TPAs
that have not entered into separate Intermediary Services Agreements with the
Distributor and/or Janus Services, Service Provider shall be responsible for
determining and paying any fees payable to such Third Party Broker/TPA for any
account set up by Service Provider on behalf of such Third Party Broker/TPA. If
Service Provider submits orders for Third Party Brokers/TPAs that have entered
into separate Intermediary Services Agreements with the Distributor and Janus
Services, Service Provider acknowledges and agrees that Service Provider is not
entitled to receipt of any fees for those Shares it holds on behalf of a Third
Party Broker/TPA who has entered into such
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Agreement and that such fees shall be calculated in accordance with Schedule 3
to this Agreement. In no event will Janus Services or the Distributor make
payments to natural persons who are registered representatives of a Third Party
Broker/TPA.
(g) Payment of fees to a Third Party Broker/TPA for periods prior to
the current one-month period ("Back-payments") shall be subject to the following
restrictions:
(i) Back-payments will be made by Janus to a Third Party
Broker/ TPA in the event of Janus' error regarding Broker or TPA
information.
(ii) Back-payments will not be made by Janus to a Third Party
Broker/ TPA in the event of Service Provider's error regarding Broker or
TPA information.
(iii) Back-payments will be made to a Third Party Broker/TPA
at Janus' discretion in the event that Service Provider provides
incomplete Third Party Broker/TPA information at the time of initial
account set-up.
(h) Service Provider agrees that, if any Share is repurchased by any
Fund or is tendered for redemption within seven (7) business days after
confirmation by the Distributor of the original purchase order from Service
Provider, Service Provider shall forfeit its right to any compensation received
by Service Provider with respect to such Share and shall refund to the
Distributor the full compensation, if any, paid to Service Provider on the
original sale. Service Provider agrees to notify the Distributor of such
repurchase or redemption within a reasonable time after settlement. Termination
or cancellation of this Agreement shall not relieve Service Provider from its
obligation under this provision.
(i) Service Provider shall disclose the fee arrangements under this
Agreement to each Customer prior to the Service Provider's receipt of fees
hereunder in accordance with disclosure standards applicable to Service
Provider.
(j) The performance of its duties and obligations and provision of
Services by Service Provider as described in this Agreement and the receipt of
the fees 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.
(k) If Service Provider offers 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.
(l) To the extent Service Provider is receiving Administrative Fees
pursuant to this Agreement, Service Provider represents that the Administrative
Fees are for recordkeeping and other administrative services only and do not
constitute payment in any manner for distribution services.
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6. Approval of Informational Materials.
(a) No person is authorized to make any representations concerning
the Trust, the Funds, the Shares, the Distributor or Janus Services except those
representations contained in the then-current Prospectuses and SAIs for the
Shares and in such printed information as the Distributor or the Trust may
subsequently prepare.
(b) If Service Provider elects to include any materials provided by
Janus Services and/or the Distributor, specifically, Prospectuses, SAIs,
shareholder reports, proxy materials or marketing 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 the
Distributor and for promptly replacing such materials with all updates provided
by Janus Services and/or the Distributor.
(c) If shares of the Funds will be made available to Retirement Plan
Customers of the Service Provider, Service Provider is permitted to make
references to the Funds in efforts to market its services to Retirement Plan
Customers, but is not authorized to make any representation concerning the
Trust, the Fund, the Shares, the Distributor or Janus Services, except in
compliance with Section 6(a) of the Agreement.
(d) Service Provider shall send all filings with state and federal
agencies and marketing materials in which the Funds are named to the Legal
Department of Janus Services and/or the Distributor (the "Legal Department"), by
mail or facsimile at the address or facsimile number shown under "Notices" in
Section 15 of this Agreement (or such other address or number as provided by the
Legal Department), at least fifteen (15) business days prior to its filing or
general release. No such materials shall be used if Janus Services and/or the
Distributor reasonably object to such use.
7. Operations of the Funds. Nothing in this Agreement shall in any way
limit the authority of the Trust or the 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 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, the
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Distributor, Janus Services, Janus Holding, or their affiliates, or any products
or services sponsored, managed, advised, or administered by the Trust, the
Distributor, Janus Services, 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. Additional Representations, Warranties and Agreements. The Service
Provider represents, warrants, and covenants that:
(a) Service Provider and all its agents and employees shall comply
with: (i) all applicable federal and state laws in conducting its and their
activities related to this Agreement including, without limitation, all federal
and state securities laws; (ii) all rules, regulations and interpretations by
governmental and regulatory bodies and self-regulatory organizations having
jurisdiction, including, without limitation, the Financial Industry Regulatory
Authority ("FINRA"), formerly known as the National Association of Securities
Dealers, Inc.; (iii) all applicable rules, regulations and procedures of the
NSCC (subject to any limitations contained herein or in Schedule 4 to this
Agreement) if and to the extent Service Provider uses the NSCC for effecting
purchases and redemptions of Shares through NSCC; (iv) all federal and state
banking laws, if applicable; (v) ERISA; and (vi) the Code; and any successor
law, rule, regulation or interpretation to the foregoing;
(b) The Service Provider is authorized to enter into this Agreement;
(c) The Service Provider is registered with the SEC as a
broker-dealer pursuant to the Securities Exchange Act of 1934 (the "1934 Act"),
is a member in good standing of FINRA, and is qualified to conduct business
under the laws of any applicable state in which the Shares may be sold; or is
not a broker or dealer and is not required to be registered as a broker-dealer
under the 1934 Act or any state securities laws in order to enter into and
perform the services, and receive the fees, set forth in this Agreement;
(d) Service Provider is not acting as a "principal underwriter" to
the Funds as that term is defined in the 1940 Act;
(e) Service Provider will distribute Fund Prospectuses, SAIs,
shareholder reports, proxy materials and other shareholder communications to
Customers in accordance with applicable regulatory requirements and in
accordance with applicable required time frames, except to the extent the
Distributor expressly undertakes in writing to do so;
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(f) Any information Service Provider provides to Customers
concerning the Funds will be based on information contained in and accurately
derived from the Prospectus or SAI for the Funds, or on promotional materials or
sales literature that the Distributor furnishes to the public or has been
previously approved by the Distributor;
(g) Each order submitted for a transaction in Shares shall be for
the accounts of Customers and not for Service Provider's own account;
(h) 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;
(i) 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 the 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;
(j) Service Provider is, and shall carry out its activities under
this Agreement, 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. Service Provider has policies and procedures in place to
detect money laundering and terrorist financing, including the reporting of
suspicious activity; and
(k) [Service Provider to select A or B]
[ ] A. Service Provider is a "financial intermediary" as defined by
SEC Rule 22c-2 of the 1940 Act ("The Rule"), and has entered into an appropriate
agreement with Janus Services and/or the Distributor pursuant to the
requirements of The Rule.
[ ] B. Service Provider is not a "financial intermediary" as defined
by The Rule at the time this Agreement is entered into, and shall: (i)
immediately notify Janus Services and/or the Distributor upon determining that
it has become a "financial intermediary"; and (ii) take steps to comply with the
requirement to enter into an appropriate agreement with Janus Services and/or
the Distributor upon a determination that it has become a financial
intermediary.
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, sales support, and informational mailings relating to the Funds or as
required by operation of law or
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pursuant to the order of a government agency. 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.
12. Indemnification.
(a) Service Provider shall indemnify and hold harmless the Funds,
the Funds' custodian, the Distributor, Janus Services and all affiliates,
directors, trustees, employees, shareholders and assigns of the foregoing for
any loss (including without limitation, litigation costs and expenses and
attorneys' and experts' fees) directly resulting from Service Provider's willful
act, omission or error in the performance of this Agreement, submission of
orders for Fund shares that violate any policies published in the Funds'
prospectuses, including, without limitation, any market timing policies, or
Service Provider's material breach of this Agreement. Such indemnification shall
survive termination of the Agreement.
(b) If any action, suit, proceeding, or investigation is initiated,
or any claim or demand is made, against any party indemnified hereto with
respect to which such party ("Indemnified Party") may make a claim against any
other party hereto ("Indemnifying Party") pursuant to this Section 12, then the
Indemnified Party shall give prompt written notice of such action, suit,
proceeding, investigation, claim or demand to the Indemnifying Party.
Thereafter, the Indemnifying Party shall have the opportunity, at its own
expense and with its own counsel, to defend or settle such action, suit,
proceeding, investigation, claim or demand; provided, however, that:
(i) the Indemnifying Party shall keep the Indemnified Party
informed of all material developments and events relating to such action,
suit, proceeding, investigation, claim or demand;
(ii) the Indemnified Party shall have the right to
participate, at its own expense in the defense of such action, suit,
proceeding, investigation, claim or demand and shall cooperate as
reasonably requested by the Indemnifying Party in the defense thereof; and
(iii) the Indemnifying Party shall not settle such action,
suit, proceeding, investigation, claim or demand without the prior written
consent of the Indemnified Party, which consent shall not be unreasonably
withheld.
13. Amendment of Schedules. The Schedules, as in effect as of the date
this Agreement is executed, provide particular information as of such date. The
Schedules may be revised and updated by the Distributor and Janus Services
unilaterally from time to time to reflect any changes in the information set
forth thereon including, but not limited to, the Trust and series thereof to
which this Agreement relates. Each such update or revision of a Schedule shall
set forth the date as of which such update or revision takes effect. Failure to
appropriately
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update or revise a Schedule shall not affect the parties' rights,
responsibilities and obligations hereunder, if the course of conduct among the
parties clearly reflects their mutual agreement to the revision or update in the
information thereon. The provisions of this Agreement shall be equally
applicable to each update or revision of a Schedule, unless the context
otherwise requires.
14. Term and Termination.
(a) This Agreement will continue with respect to a Fund as to which
Service Provider is receiving fees pursuant to a 12b-1 plan only if the
continuance of such 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, including 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 may be terminated with respect to any Fund by the
Distributor or by the Service Provider, without penalty, upon sixty (60) days'
prior written notice to the other party, with a copy to Janus Services.
(c) This Agreement may be terminated:
(i) automatically with respect to a Fund as to which Service
Provider is receiving fees pursuant to such plan in the event of its
assignment (as such term is defined in the 0000 Xxx) with respect to such
Fund. For purposes of this provision, in the event there is an assignment
as a result of a change in actual control or management of Service
Provider due to a change in ownership of Service Provider or a transfer of
its assets to another person, and such new owner or such transferee (or an
affiliate thereof) has entered into an Intermediary Services Agreement, or
similar distribution and shareholder services agreement, with the
Distributor and Janus Services, the latter's Intermediary Services
Agreement shall apply to the parties after the effective date of such
change; or
(ii) 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,
or by a vote of a majority of the Shares of such Fund on sixty (60) days'
written notice.
(d) In addition, any party may terminate this Agreement immediately
if at any time it is determined by any federal or state regulatory authority
that any compensation or fees to be paid under this Agreement is in violation of
or inconsistent with any federal or state law.
15. Miscellaneous.
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(a) Entire Agreement. This Agreement, including the Schedules to
this Agreement, contains the entire agreement between the parties with respect
to the transactions covered and contemplated hereunder and supersedes all prior
agreements or understandings between the parties relating to the subject matter
hereof, whether oral or written, express or implied.
(b) Amendment. Except as otherwise provided under Section 13 of this
Agreement, no modification of any provision of this Agreement will be binding
unless in writing and executed by all of the parties hereto. No waiver of any
provision of this Agreement will be binding unless in writing and executed by
the party granting such waiver.
(c) Assignment. 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 each party or as expressly contemplated by this
Agreement.
(d) Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Colorado, exclusive of conflicts of
laws.
(e) Counterparts. 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.
(f) Incorporation of Recitals, Schedules and Exhibits. All recitals
contained in this Agreement and all schedules and exhibits referred to herein
and attached hereto, are expressly incorporated into this Agreement.
(g) Notices. All notices and other communications to Service
Provider, Janus Services or the 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 the Distributor: If to Janus Services:
Janus Distributors LLC Janus Services LLC
000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000 Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel Attn: General Counsel
12
If to the Service Provider:
______________________________________
______________________________________
______________________________________
Attn: ________________________________
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
13
IN WITNESS WHEREOF, the parties have executed this Agreement on the date set
forth above.
JANUS DISTRIBUTORS LLC
----------------------------------------
(Service Provider)
By: By:
--------------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxx Name:
-------------------------------
Title: Senior Vice President Title:
-------------------------------
JANUS SERVICES LLC
By:
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
14
Exhibit (e)(6)
SCHEDULE 1
TO INTERMEDIARY SERVICES AGREEMENT
SHARE CLASSES
EFFECTIVE DATE: _________________
Any series of the Trust, or its successor, open to new investors as of and
subsequent to the date of this Agreement are available under this Agreement as
listed below.
[x] Class A Shares
[x] Class A Shares (load-waived)
[x] Class C Shares
[x] Class I Shares
[x] Class R Shares
[x] Class S Shares
[x] Class J/T Shares
I-1
Exhibit (e)(6)
SCHEDULE 2
TO INTERMEDIARY SERVICES AGREEMENT
SERVICES
EFFECTIVE DATE: ____________________
Service Provider shall provide the Services selected below, subject to any
terms and conditions set forth below and in the Agreement.
[ ] 1. DISTRIBUTION AND SHAREHOLDER SERVICES APPLICABLE TO CLASSES
LOAD-WAIVED A, A, C, R AND/OR S SHARES
Service Provider shall provide the following Services:
(a) Service Provider shall engage in efforts to promote and
distribute Shares to Customers.
(b) Service Provider shall provide the following services to
its Customers who own, or on whose behalf Service
Provider holds, Shares:
(i) Establish Customer accounts to hold Shares
owned by Customers and maintain records of
daily transactions in Shares by each such
Customer (including the number of Shares
purchased or redeemed, the value of each
such Share, and the Share balance in each
Customer account).
(ii) Receive, aggregate and process Customer
orders to purchase and redeem Shares.
(iii) Assist Janus Services in recording the
issuance and redemption of Shares by such
Customers.
(iv) Pursuant to Schedule 4, transmit to the
Distributor or Janus Services, Customer
orders to purchase and redeem Shares.
(v) Disburse to Customers or credit to Customer
accounts the proceeds of all Share
redemptions by such Customers and dividends
and other distributions on Shares not
reinvested in Shares, and maintain records
of disbursements and credits to such
Customer accounts.
(vi) At Service Provider's expense, deliver
Prospectuses, shareholder reports and other
shareholder communications to Customers, and
any SAIs requested by Customers, in
accordance with and within the time frames
required by applicable law.
II-1
(vii) Assisting the Distributor or Janus Services
in the distribution of proxy materials and
the solicitation of proxies in connection
with meetings of shareholders of Funds or
Share classes at which Customers are
entitled to vote.
(viii) Prepare and furnish account statements and
confirmations to Customers.
(c) Service Provider shall provide one or more of the
services contemplated under the Fund's Distribution and
Shareholder Servicing Plan for Shares, as such plan may
be amended from time to time.
(d) Service Provider acknowledges its obligation to comply
with suitability determination requirements under
applicable laws, rules, regulations and regulatory
guidance.
(e) Service Provider acknowledges its obligation to record
and track each Customer's investments in Class A and
Class C Shares, and to at all times ensure that each
Customer is charged the correct 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 any Shares (individually
or collectively, "Discounts"). Without limiting the
foregoing, Service Provider acknowledges its obligation
to (i) review and understand the Discounts; (ii) obtain
information from its Customers as necessary or
appropriate to allow Service Provider to provide any
available Discounts; (iii) inform its Customers of the
opportunities for Discounts and inquire of its Customers
with respect to the existence of other qualifying
holdings that might entitle them to any Discounts; (iv)
correctly process orders so that Customers receive any
applicable Discounts; and (v) maintain adequate written
supervisory procedures, supervisory controls, and
exception reports with respect to compliance with
Discounts. Service Provider shall, if requested by the
Distributor, give the Distributor reasonable access to
data that will enable the Distributor to determine
whether any Discounts were properly applied.
[ ] 2. ADMINISTRATIVE SERVICES ONLY (FOR BROKER-DEALER BUSINESS)
APPLICABLE TO ALL CLASSES
(a) Service Provider shall provide the following services to
its Customers who own, or on whose behalf Service
Provider holds, Shares:
(i) Establish Customer accounts to hold Shares
owned by Customers and maintain records of
daily transactions in Shares by each such
Customer (including the number of Shares
purchased or redeemed, the value of each
such Share, and the Share balance in each
Customer account).
(ii) Receive, aggregate and process Customer
orders to purchase and redeem Shares.
(iii) Assist Janus Services in recording the
issuance and redemption of Shares by such
Customers.
II-2
(iv) Pursuant to Schedule 4, transmit to the
Distributor or Janus Services, Customer
orders to purchase and redeem Shares.
(v) Disburse to Customers or credit to Customer
accounts the proceeds of all Share
redemptions by such Customers and dividends
and other distributions on Shares not
reinvested in Shares, and maintain records
of disbursements and credits to such
Customer accounts.
(vi) At Service Provider's expense, deliver
Prospectuses, shareholder reports or other
shareholder communications to Customers and
any SAIs requested by Customers, in
accordance with and within the time frames
required by applicable law.
(vii) Assisting the Distributor or Janus Services
in the distribution of proxy materials and
the solicitation of proxies in connection
with meetings of shareholders of Funds or
Share classes at which Customers are
entitled to vote.
(viii) Prepare and furnish account statements and
confirmations to Customers.
(b) Service Provider shall provide one or more of the
services contemplated under the Fund's Distribution and
Shareholder Servicing Plan for applicable Classes of
shares, as such plan may be amended from time to time.
[ ] 3. ADMINISTRATIVE SERVICES (FOR RETIREMENT PLANS) APPLICABLE TO ALL
CLASSES
Service Provider shall provide the following services:
(a) Service Provider shall provide customary recordkeeping
services, which may include some or all of the
following:
(i) Establishing recordkeeping "accounts" for
each Retirement Plan Customer and Plan
Participant to record Shares owned by a
Retirement Plan Customer on behalf of its
Participants or owned by a Participant.
(ii) Receiving, aggregating and processing Plan
Participant orders to purchase and redeem
Shares.
(iii) Maintaining records of daily transactions in
Shares by each Plan Participant (including
the number of Shares purchased or redeemed,
the value of each such Share, and the Share
balance in each Plan Participant account).
(iv) Transmitting to Distributor, Janus Services
or Retirement Plan Customer (e.g. trustee or
custodian), net orders of Plan Participants
to purchase and redeem each available class
of Shares for each available Fund.
(v) Recording the disbursement to Plan
Participants or credit to Plan Participant
accounts, (1) the proceeds of all Share
redemptions by Participants, and (2)
dividends and other distributions on Shares
not reinvested in Shares.
II-3
(vi) Maintaining records of disbursements and
credits to Plan Participant accounts.
(vii) Preparing and transmitting (to the
Retirement Plan Customer or to each Plan
Participant, as provided in the Plan
Agreement), periodic account statements for
each Plan Participant showing: (1) the
number of Shares of each Fund and class
owned by the Plan Participant, (2) purchases
and redemptions of Shares of each Fund and
class by the Plan Participant during the
period covered by the statement, and (3)
dividends and other distributions paid on
Shares of each Fund and class held in the
account during the period covered by the
statement.
(viii) Mailing Prospectuses, SAIs, supplements
thereto, and shareholder reports of each
Fund, to the Plan Representative or to each
Plan Participant (as provided in the Plan
Agreement) that owns or holds Shares of that
Fund, at Service Provider's expense.
(ix) Assisting Janus Services in recording the
issuance and redemption of Shares by
Retirement Plan Customers or Plan
Participants.
(x) Assisting the Distributor or Janus Services
in the distribution of proxy materials and
the solicitation of proxies in connection
with meetings of shareholders of Funds or
Share classes at which Plan Representatives
or Plan Participants are entitled to vote.
(xi) Preparing and providing reports to the
Distributor about transactions in Shares by
Retirement Plan Customers or Plan
Participants that may be derived from
records maintained by Service Provider.
(b) Service Provider shall provide one or more of the
services contemplated under the Fund's Distribution and
Shareholder Servicing Plan for applicable Classes of
shares, as such plan may be amended from time to time.
(c) Service Provider, or Third Party Broker for whom Service
Provider submits orders, shall engage in efforts to
promote and distribute Shares to Customers.
II-4
Exhibit (e)(6)
SCHEDULE 3
TO INTERMEDIARY SERVICES AGREEMENT
COMPENSATION AND FEES
EFFECTIVE DATE: ___________________
With respect to Section 5 of the Agreement, Service Provider is
receiving compensation and/or fees with respect to the classes of
Janus Investment Fund as selected below. (1)
CLASS A
CLASS - LOAD
SOURCE AND AMOUNT J/T CLASS A WAIVED CLASS C(2) CLASS I CLASS R (3) CLASS S
--------------------------------- ----------- ----------- ----------- ----------- ----------- ----------- -----------
Selected under Agreement: [YES or NO] [YES or NO] [YES or NO] [YES or NO] [YES or NO] [YES or NO] [YES or NO]
Reallowance of initial sales N/A YES (4) NO N/A N/A N/A N/A
charge (front-end load):
12b-1 Fee paid by the Distributor N/A 0.25% 0.25% 1.00% (5) N/A 0.50% 0.25%
from Fund assets on outstanding
shares at an annual fee rate of:
Administrative/Administrative 0.0% N/A N/A N/A N/A 0.25% 0.25%
Services Fee paid by Janus
Services from Fund assets on
outstanding shares at an
annual fee rate of:
One-time Advanced Commission N/A N/A N/A 1.00% BD N/A N/A N/A
paid by the Distributor on all 0.00% Plans
purchases:
------------
(1) The noted fees apply, unless otherwise provided in an agreement between
Janus Services and a clearing firm (as specified in Schedule 4).
(2) When trading directly with Janus for Class C Shares, Service Provider must
submit trading either for Broker-Dealer business or Retirement Plan
business, but not both.
(3) Class R Shares are not available for all Funds.
(4) Service Provider shall be entitled to a re-allowance of the initial sales
charge as set forth in the then-current Prospectus and/or SAI. Service
Provider shall be entitled to such re-allowance upon receipt of purchase
funds from Customers. Further, in accordance with each Fund's Prospectus
and/or SAI, Distributor or any affiliate of the Distributor may, but is
not obligated to, make payments to Service Provider from Distributor's or
such affiliate's own resources as compensation for certain sales that are
made at net asset value.
(5) Payment starts in Month 13 for BD business.
III-1
CALCULATION OF AVERAGE ASSETS FOR 12b-1 AND ADMINISTRATIVE/ADMINISTRATIVE
SERVICES FEES
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. Distributor or Janus Services will calculate the fees payable
pursuant to this Schedule 3 at the end of each month, unless specified otherwise
in this Schedule 3, and will make such payment to the Service Provider.
CALCULATION OF ADVANCED COMMISSION
With respect to Class C Shares, Service Provider shall be entitled to receive a
one-time fee 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 Service Provider. Distributor will calculate the fees payable two
times per month and will make such payments to the Service Provider.
III-2
Exhibit (e)(6)
SCHEDULE 4
TO INTERMEDIARY SERVICES AGREEMENT
ORDER SUBMISSION AND PROCESSING
EFFECTIVE DATE: ___________________________
With respect to Section 3 of the Agreement, Service Provider is:
[ ] Self-clearing orders through NSCC systems (see Section 1 below)
[ ] Clearing orders through a clearing agent
[ ] Approved by Janus Services operations for manual submission of
orders (see Section 2 below)
1. Submission of Orders through NSCC. Janus Services will accept trades
submitted via the NSCC Systems in accordance with the following terms.
(a) Obligations of Janus Services.
(i) Transactions Subject to Fund/SERV. On each business day that
the New York Stock Exchange is open for business on which the
Funds determine their per share net asset values ("Business
Day"), Janus Services shall accept, and effect, changes in its
records upon receipt of purchase, redemption, exchanges, and
registration instructions from the Service Provider
electronically through Fund/SERV ("Instructions") without
supporting documentation from the Customer in accordance with
the terms and conditions set forth in this Schedule 4. On each
Business Day, Janus Services shall accept for processing any
Instructions from the Service Provider and shall process such
Instructions in a timely manner. Purchases to a Customer's
Fund account shall be posted to such account through nightly
processing after both the account registration and purchase
settlement have been received. Such purchase shall appear on
the account record the following Business Day. Shares are
ineligible for redemption until they are posted and appear on
the account record.
(ii) Performance of Duties. Janus Services shall perform any and
all duties, functions, procedures and responsibilities
assigned to it under this Agreement and as otherwise
established by the NSCC. Janus Services shall maintain
facilities, equipment and skilled personnel sufficient to
perform the foregoing activities and to otherwise comply with
the terms of this Agreement. Janus Services shall conduct each
of the foregoing activities in a competent manner and in
compliance with all applicable laws, rules and regulations,
including NSCC rules and procedures relating to Fund/SERV, and
in compliance with the then-current prospectuses and SAIs of
the Funds.
IV-1
(iii) Accuracy of Information, Transmissions Through, and Access to
Fund/SERV. Confirmed trades and any other information provided
by Janus Services to Service Provider through Fund/SERV and
pursuant to this Agreement shall be accurate, complete, and in
the format prescribed by the NSCC. Janus Services shall adopt,
implement and maintain procedures reasonably designed to
ensure the accuracy of all transmissions through Fund/SERV and
to limit the access to, and the inputting of data into,
Fund/SERV to persons specifically authorized by Janus
Services.
(iv) Notice of Prospectus and Statement of Additional Information
Revisions. The Funds shall provide Service Provider with
reasonable notice of any material revisions to the Funds'
prospectuses and SAIs as are necessary to enable Service
Provider to fulfill its obligations under this Agreement.
(b) Obligations of Service Provider.
(i) Transactions Subject to Fund/SERV. Service Provider certifies
that all Instructions delivered to Janus Services on any
Business Day shall have been received by Service Provider from
the Customer by the close of trading (currently 4:00 p.m.
Eastern Time ("ET")) on the New York Stock Exchange (the
"Close of Trading") on such Business Day and that any
Instructions received by it after the Close of Trading on any
given Business Day will be transmitted to Janus Services on
the next Business Day. Except with respect to Instructions on
behalf of Defined Contribution Plans, Service Provider further
certifies that all such Instructions received by it from a
Customer by the Close of Trading on any Business Day will be
delivered to Janus Services on such Business Day. With respect
to processing of Instructions on behalf of Defined
Contribution Plans that Service Provider received by the Close
of Trading on a Business Day, Service Provider certifies it
will:
(A) transmit such Instructions to Janus Services through
Fund/SERV by 6:00 a.m. ET on the next Business Day, or
(B) otherwise notify Janus Services of such Instructions by
10:00 a.m. ET on the next Business Day. If Service
Provider must deliver any Instructions to Janus Services
on a certain Business Day for processing as of the prior
Business Day due to systems problems or errors, such
Instructions must be delivered by 10:00 a.m. ET to Janus
Services on such Business Day. If Janus Services
receives such Instructions after the 10:00 a.m. ET
deadline and processes the Instructions, resulting in a
loss to the Funds, Service Provider agrees to reimburse
Janus Services for such loss upon receipt of a reclaim
letter from Janus Services. Janus Services appoints
Service Provider as its agent for the limited purpose of
accepting orders for the purchase and redemption of
shares of the Funds by Service Provider on behalf of its
Customers.
IV-2
(ii) Performance of Duties. Service Provider shall perform any and
all duties, functions, procedures and responsibilities
assigned to it under this Agreement and as otherwise
established by the NSCC. Service Provider shall maintain
facilities, equipment and skilled personnel sufficient to
perform the foregoing activities and to otherwise comply with
the terms of this Agreement. Service Provider shall conduct
each of the forgoing activities in a competent manner and in
compliance with all applicable laws, rules and regulations,
including NSCC rules and procedures relating to Fund/SERV, and
in compliance with the then-current prospectuses and SAIs of
the Funds.
(iii) Accuracy of Information, Transmissions Through, and Access to
Fund/SERV. Trade, registration, and if applicable,
broker/dealer information provided by the Service Provider to
Janus Services through Fund/SERV and pursuant to this
Agreement shall be accurate, complete and, in the format
prescribed by the NSCC. All Instructions by Service Provider
regarding each Fund/SERV account shall be true and correct and
will have been duly authorized by the Customer under whose
name the account appears in the records of Service Provider.
Service Provider shall adopt, implement and maintain
procedures reasonably designed to ensure the accuracy of all
transmissions through Fund/SERV and to limit the access to,
and the inputting of data into, Fund/SERV to persons
specifically authorized by Service Provider.
(iv) Information Relating to Fund/SERV Transactions. For each
Fund/SERV transaction, including transactions establishing a
Customer account with Janus Services, Service Provider shall
provide the Funds and Janus Services with all information
necessary or appropriate to establish and maintain each
Fund/SERV transaction (and any subsequent changes to such
information) which Service Provider hereby certifies is, and
shall remain, true and correct. Service Provider shall
maintain documents required by the Funds or by applicable law,
rules or regulations to effect Fund/SERV transactions.
(v) As-of Transactions. Processing errors which result from any
delay or error caused by Service Provider may be adjusted
through Fund/SERV by Service Provider by the necessary
transactions on an as-of basis and the cost to the Fund or
Janus Services of such transactions shall be borne by Service
Provider.
(vi) Duplicate Transactions and Payments. Service Provider
acknowledges that as a result of the automated settlement
features of NSCC's Fund/SERV program, Janus Services'
compliance with redemption and/or settlement instructions
involves a risk that the shareholder whose account is being
redeemed may issue an inconsistent instruction, that the
account being redeemed may be subject to backup or penalty
withholding, or that a record date may occur while the
redemption transaction is pending, resulting in a duplication
transaction, overpayment, or dividend payment to the record
owner. If Janus Services' compliance with redemption and
settlement instructions result in a duplicate
IV-3
transaction or overpayment, in addition to the procedures
described above, Service Provider will, within two (2)
business days after receipt of notice, refund all or any
appropriate portion of any sums received by it in connection
with such duplicate transaction or overpayment.
(vii) Trade Confirmation. Any information provided by Janus Services
to Service Provider electronically through Fund/SERV and
pursuant to this Agreement, shall satisfy the delivery
obligations as outlined by SEC Rule 10b-10 and, as such, Janus
Services has the informed consent of Service Provider to
suppress the delivery of this information using paper-media.
Service Provider will promptly verify accuracy of
confirmations of transactions and records received by Janus
Services through Fund/SERV.
(viii)Shareholder Reports and Other Documents; Solicitation of
Proxies. Service Provider shall timely deliver to each
Customer all reports and other documents provided to it by the
Funds or Janus Services as is required by applicable
securities law and the Service Provider's agreement with the
Customer, provided that Service Provider has timely received
copies of such reports and/or documents. The Fund or Janus
Services and Service Provider shall cooperate with each other
in the solicitation and voting of proxies on behalf of the
Funds according to Service Provider's fiduciary responsibility
as written in the trust agreement or as required by state law
or Federal Regulation.
(ix) Settlement of Transactions. For any purchase or redemption of
Shares processed through Fund/SERV, Janus Services and Service
Provider will settle all trades on the next Business Day
following transmission of Instructions by Service Provider to
Janus Services (the "Settlement Date") in the manner provided
by NSCC Fund/SERV Rules.
(c) Overpayments.
(i) In the event any overpayment is made to Service Provider by
Janus Services, Service Provider shall promptly repay such
overpayment to Janus Services after Service Provider receives
notice of such overpayment.
(ii) In the event any overpayment is made to Janus Services by
Service Provider, Janus Services shall promptly repay such
overpayment to Service Provider after Janus Services receives
notice of such overpayment.
(d) Indemnification. Janus Services shall indemnify and hold harmless
Service Provider, Service Provider's affiliates, directors,
officers, agents and employees and assigns of the foregoing
(collectively, "Indemnified Service Provider Parties"), against and
from any and all demands, damages, liabilities, and losses, or any
pending or completed actions, claims, suits, complaints,
proceedings, or investigations (including reasonable attorneys fees
and other costs, including all expenses of litigation or
arbitration, judgments, fines or amounts paid in any
IV-4
settlement consented to by Janus Services) to which any of them may
be or become subject to as a result or arising out of (a) any
willful act or omission by Janus Services, the Funds or their agents
relating to Fund/SERV and not arising out of Service Provider's
negligence; (b) any breach of the Janus Services' representations or
warranties in Section 1 of this Schedule; or (c) Janus Services'
failure to comply with any of the terms of Section 1 of this
Schedule. Additional provisions governing the parties' respective
indemnification obligations are set forth in Section 12 of the
Agreement.
2. Non-NSCC Order Process. Janus Services will accept trades not submitted
via the NSCC Systems on an exception-only basis if Service Provider is
servicing employer sponsored retirement plans or insurance company
products such as variable life/annuities in accordance with the following
terms:
(a) 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. ET of the next business day ("Day Two")
pursuant to the Trading Requirements listed in Section 2(b). The
Funds will execute orders at the NAV 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 Section 2(b)(iv).
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) Trading Requirements for trades not submitted via the NSCC Systems:
(i) 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.
(ii) All trades must be submitted in dollars. No Share trades will
be accepted.
(iii) No exchanges will be accepted, sell/buys must be requested.
(iv) Electronic or typed trade requests must be received by Janus
Services prior to 9:00 a.m. ET.
(v) All trades will be processed at the public offering price.
IV-5
(c) Settlement. Payment for net purchases and redemptions will be wired
pursuant the following settlement requirements:
(i) Service Provider will send Janus Services one combined
purchase wire for all purchase orders by 2:00 p.m. ET on Day
Two.
(ii) Janus Services will send one combined wire for all redemption
proceeds by 4:00 p.m. ET on Day Two.
In the event of extraordinary market conditions affecting any such
redemption, however, Janus Services may delay such redemption for up
to five (5) business days, or longer to the extent permitted under
Section 22(e) of the 0000 Xxx.
3. Provisions Applicable to all Orders. The following provisions apply to
order submission and processing, whether through NSCC or otherwise.
(a) Dividends and Distributions. Janus Services will provide to the
Service Provider closing NAVs, dividends, and capital gains
information at the Close of Trading on each Business Day. Dividends
and capital gains distributions shall be reinvested in accordance
with the terms of the relevant Prospectus.
(b) Contingent Deferred Sales Charges. For omnibus accounts, 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 the
Distributor on a monthly basis; provided, however, that Service
Provider will establish all accounts in such a manner so as to
enable the Distributor to waive contingent deferred sales charges
for such accounts in accordance with the terms of the then-current
Prospectus, including without limitation, dividends and cash
distributions; Service Provider acknowledges that all contingent
deferred sales charges are waived for participant-directed
retirement plans. For non-omnibus accounts, the contingent deferred
sales charge will not be collected by the Service Provider but will
be retained by the Distributor at the time of redemption, if
applicable.
(c) State Information. Service Provider shall maintain and transmit to
the 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 the
Distributor to enable the 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 the Distributor and Service Provider.
IV-6
