EXHIBIT 6(a)
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (the "Agreement"), made as of the 1st day of
May, 1997 by and between Janus Aspen Series, a business trust organized and
existing under the laws of the State of Delaware, (hereinafter called "XXX") on
behalf of the Retirement Shares of each of its portfolios, whether now existing
or hereafter created, (each a "Portfolio"), and Janus Distributors, Inc., a
corporation organized and existing under the laws of the State of Colorado
(hereinafter called the "Distributor" or "JDI"). This Agreement applies
separately to the Retirement Shares of each Portfolio of XXX whether now
existing or hereafter created.
WITNESSETH:
WHEREAS, XXX is engaged in business as an open-end management investment
company registered under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Distributor is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act") and the laws of
each state or jurisdiction in which the Distributor engages in business to the
extent such law requires, and is a member of the National Association of
Securities Dealers, Inc. (the "NASD") (such registrations and membership are
referred to collectively as the "Registrations");
WHEREAS, XXX has adopted on behalf of the Retirement Shares of each
Portfolio, a Distribution and Shareholder Servicing Plan pursuant to Rule 12b-1
under the 1940 Act; and
WHEREAS, XXX desires the Distributor to act as the underwriter for the
public offering of the Retirement Shares of each Portfolio.
NOW, THEREFORE, in consideration of the premises and the mutual promises
hereinafter set forth, the parties hereto agree as follows:
1. Appointment. XXX appoints JDI to act as distributor of the Retirement
Shares.
2. Delivery of Portfolio Documents. XXX has furnished the Distributor with
properly certified or authenticated copies of each of the following in effect on
the date hereof and shall furnish the Distributor from time to time properly
certified or authenticated copies of all amendments or supplements thereto:
(a) Trust Instrument;
(b) By-Laws; and
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(c) Resolutions of the Trustees (hereinafter referred to as the
"Trustees") selecting the Distributor as distributor and approving
this form of agreement and authorizing its execution.
XXX shall furnish the Distributor promptly withcopies of any registration
statements filed by it with the Securities and Exchange Commission (the "SEC")
under the Securities Act of 1933, as amended, (the "1933 Act") or the 1940 Act,
together with any financial statements and exhibits included therein, and all
amendments or supplements thereto hereafter filed.
XXX shall also furnish the Distributor with such other certificates or
documents as the Distributor may from time to time, in its discretion,
reasonably deem necessary or appropriate in order to properly perform its duties
under this Agreement.
3. Solicitation of Orders for Purchase of Shares.
(a) Subject to the provisions of Paragraphs 4 and 7 hereof, and to such
minimum purchase requirements as may from time to time be indicated in the
Prospectus or Statement of Additional Information of the Retirement Shares of
each Portfolio, the Distributor is authorized to solicit, as agent on behalf of
XXX, unconditional orders for purchases of each Portfolio's Retirement Shares
authorized for issuance and registered under the 1933 Act, provided that:
(1) The Distributor shall act solely as a disclosed agent on behalf of and
for the account of XXX;
(2) The Distributor shall confirm or arrange with the transfer agent for
the Retirement Shares to confirm all purchases of the Retirement
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
Retirement Shares it sells as agent;
(4) Each order to purchase Retirement Shares of a Portfolio received by
the Distributor shall be subject to acceptance by an officer of XXX
and entry of the order on such Portfolio's records or shareholder
accounts and is not binding until so accepted and entered; and
(5) The Distributor may appoint sub-agents or distribute through dealers
(pursuant to a Distribution and Shareholder Servicing Agreement, a
form of which is attached hereto as Exhibit A), the Distributor's own
sales representatives or otherwise as the Distributor may determine
from time to time.
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The purchase price of a Portfolio's Retirement Shares to the public shall
be the public offering price described in Paragraph 6 hereof.
(b) In consideration of the rights granted to the Distributor under this
Agreement, the Distributor will use its best efforts (but only in states and
jurisdictions in which the Distributor may lawfully do so) to solicit from
investors unconditional orders to purchase Retirement Shares of each Portfolio.
XXX shall make available to the Distributor without cost to the Distributor the
currently effective Prospectus and Statement of Additional Information for the
Retirement Shares of each Portfolio and all information, financial statements
and other papers that the Distributor requires for use in connection with the
distribution of Retirement Shares. XXX shall provide such materials in the form
of camera ready copies, computer diskettes, or other form reasonably requested
by Distributor, to enable Distributor to provide one copy or diskette to each
shareholder of record (it being understood that the shareholders of record shall
be responsible for providing copies of such materials to the beneficial owners
in accordance with applicable law).
4. Solicitation of Orders to Purchase Retirement Shares by Portfolio. The
rights granted to the Distributor shall be non-exclusive in that XXX reserves
the right to otherwise solicit purchases from, and sell Retirement Shares to,
investors, including without limitation the right to issue Retirement Shares in
connection with the merger or consolidation of any other investment company,
trust or personal holding company with a Portfolio, or a Portfolio's
acquisition, by the purchase or otherwise, of all or substantially all of the
assets of an investment company, trust or personal holding company, or
substantially all of the outstanding shares or interests of any such entity.
5. Compensation and Expenses. XXX shall pay all charges of its transfer,
shareholder recordkeeping, dividend disbursing and redemption agents, if any;
all expenses of preparation, printing and mailing of confirmations; all expenses
of preparation and printing of annual or more frequent revisions of each
Portfolio's Prospectus and Statement of Additional Information and of supplying
copies thereof to shareholders; all expenses of registering and maintaining the
Registrations of XXX under the 1940 Act and the sale of XXX' Retirement Shares
under the 1933 Act; all expenses of qualifying and maintaining qualifications of
each Portfolio and of the Retirement Shares for sale under securities laws of
various states or other jurisdictions and of registration and qualification of
each Portfolio under all laws applicable to XXX or its business activities. The
Distributor may receive from XXX any amounts authorized for payment to the
Distributor out of the Distribution and Shareholder Servicing Plan for the
Retirement Shares. The Distributor may use such payments, in its discretion, to
compensate dealers or other entities who provide distribution-related services
to the extent permitted by the Distribution Plan.
6. Public Offering Price. All solicitations by the Distributor pursuant to
this Agreement shall be for orders to purchase Retirement Shares of a Portfolio
at the public offering price. The public offering price for each accepted
subscription for a Portfolio's Retirement Shares will be the net asset value per
share next determined by XXX after it accepts such subscription. The net asset
value per share of the Retirement Shares shall be determined in the
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manner provided in XXX' Trust Instrument as now in effect or as it may be
amended, and as reflected in the then current Prospectus and Statement of
Additional Information covering the Retirement Shares.
7. Suspension of Sales. If and whenever the determination of a Portfolio's
net asset value is suspended and until such suspension is terminated, no further
orders for Retirement Shares shall be accepted by XXX except such unconditional
orders placed with XXX and accepted by it before the suspension. In addition,
XXX reserves the right to suspend sales of Retirement Shares of a Portfolio if,
in the judgement of the Trustees, it is in the best interest of the Portfolio to
do so, such suspension to continue for such period as may be determined by the
Trustees; and in that event, (i) at the direction of XXX, the Distributor shall
suspend its solicitation of orders to purchase Retirement Shares of such
Portfolio until otherwise instructed by XXX and (ii) no orders to purchase
Retirement Shares of such Portfolio shall be accepted by XXX while such
suspension remains in effect unless otherwise directed by its Trustees.
8. Authorized Representations. The Distributor is not authorized by XXX to
give on behalf of any Portfolio any information or to make any representations
in connection with the sale of Retirement Shares other than the information and
representations contained in such Portfolio's registration statement filed with
the SEC under the 1933 Act and/or the 1940 Act, covering Retirement Shares, as
such registration statement or such Portfolio's Prospectus or Statement of
Additional Information may be amended or supplemented from time to time, or
contained in shareholder reports or other material that may be prepared by or on
behalf of such Portfolio or approved by such Portfolio for the Distributor's
use.
9. Registration of Additional Shares. XXX hereby agrees to register an
indefinite number of Retirement Shares pursuant to Rule 24f-2 under the 1940
Act. XXX will, in cooperation with the Distributor, take such action as may be
necessary from time to time to qualify the Retirement Shares of each Portfolio
(so registered or otherwise qualified for sale under the 1933 Act), in any state
or jurisdiction mutually agreeable to the Distributor and XXX, and to maintain
such qualification; provided, however, that nothing herein shall be deemed to
prevent XXX from registering the Retirement 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 Retirement Shares it shall duly conform in all respects with
applicable federal and state laws and with the rules and regulations of the
NASD. The Distributor will use its best efforts to maintain its Registrations in
good standing during the term of this Agreement and will promptly notify XXX in
the event of the suspension or termination of any of the Registrations.
11. Independent Contractor. The Distributor shall be an independent
contractor and neither the Distributor, nor any of its officers, directors,
employees, or representatives is or shall be an employee of XXX in the
performance of the Distributor's duties hereunder. The Distributor shall be
responsible for its own conduct and the employment, control, and conduct of its
agents and employees and for injury to such agents or employees or to others
through its agents and
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employees and agrees to pay or to insure that persons other than XXX will pay
all employee taxes due with respect to the activities of its agents and
employees.
12. Indemnification. The Distributor agrees to indemnify and hold harmless
XXX and each of the Trustees and its officers, employees and representatives and
each person, if any, who controls XXX within the meaning of Section 15 of the
1933 Act against any and all losses, liabilities, damages, claims and expenses
(including the reasonable costs of investigating or defending any alleged loss,
liability, damage, claim or expense and reasonable legal counsel fees incurred
in connection therewith) to which XXX or such Trustees, officers, employees,
representatives, or controlling person or persons may become subject under the
1933 Act, under any other statute, at common law, or otherwise, arising out of
the acquisition of any Retirement Shares of any Portfolio by any person which
(i) may be based upon any wrongful act by the Distributor or any of the
Distributor's directors, officers, employees or representatives, or (ii) may be
based upon any untrue statement or alleged untrue statement of a material fact
contained in a registration statement, Prospectus, Statement of Additional
Information, shareholder report or other information covering Retirement Shares
of such Portfolio filed or made public by XXX or any amendment thereof or
supplement thereto or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, if such statement or omission was made in reliance upon
information furnished to such Portfolio by the Distributor in writing. In no
case (i) is the Distributor's indemnity in favor of XXX, or any person
indemnified, to be deemed to protect XXX or such indemnified person against any
liability to which XXX or such person would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance of its or
such person's duties or by reason of its or such person's reckless disregard of
its or such person's obligations and duties under this Agreement, or (ii) is the
Distributor to be liable under its indemnity agreement contained in this
paragraph with respect to any claim made against XXX or any person indemnified
unless XXX or such person, as the case may be, shall have notified the
Distributor in writing of the claim within a reasonable time after the summons,
or other first written notification, giving information of the nature of the
claim served upon XXX or upon such person (or after XXX or such person shall
have received notice of such service on any designated agent). However, failure
to notify the Distributor of any such claim shall not relieve the Distributor
from any liability that the Distributor may have to XXX or any person against
whom 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
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assume the defense of any such suit, the Distributor will reimburse persons
indemnified who are defendants in such suit for the reasonable fees of any legal
counsel retained by them in such litigation.
XXX agrees to indemnify and hold harmless the Distributor and each of its
directors, officers, employees, and representatives and each person, if any, who
controls the Distributor within the meaning of Section 15 of the 1933 Act
against any and all losses, liabilities, damages, claims or expenses (including
the reasonable costs of investigating or defending any alleged loss, liability,
damage, claim or expenses and reasonable legal counsel fees incurred in
connection therewith) to which the Distributor or such of its directors,
officers, employees, representatives or controlling person or persons may become
subject under the 1933 Act, under any other statute, at common law, or otherwise
arising out of the acquisition of any Retirement Shares by any person which (i)
may be based upon any wrongful act by XXX or any of the Trustees, or XXX'
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 Retirement Shares
filed or made public by XXX or any amendment thereof or supplement thereto, or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading unless
such statement or omission was made in reliance upon information furnished by
the Distributor to XXX. In no case (i) is XXX' indemnity in favor of the
Distributor or any person indemnified to be deemed to protect the Distributor or
such indemnified person against any liability to which the Distributor or such
indemnified person would otherwise be subject by reason of willful misfeasance,
bad faith, or gross negligence in the performance of its or such person's duties
or by reason of its or such person's reckless disregard of its or such person's
obligations and duties under this Agreement, or (ii) is XXX to be liable under
its indemnity agreement contained in this Paragraph with respect to any claim
made against the Distributor or any person indemnified unless the Distributor,
or such person, as the case may be, shall have notified XXX in writing of the
claim within a reasonable time after the summons, or other first written
notification, giving information of the nature of the claim served upon the
Distributor or upon such person (or after the Distributor or such person shall
have received notice of such service on any designated agent). However, failure
to notify XXX of any such claim shall not relieve XXX from any liability which
XXX may have to the Distributor or any person against whom such action is
brought otherwise than on account of XXX' indemnity agreement contained in this
Paragraph.
XXX shall be entitled to participate, at its own expense, in the defense
or, if XXX so elects, to assume the defense of any suit brought to enforce such
claim but, if XXX elects to assume the defense, such defense shall be conducted
by legal counsel chosen by XXX and satisfactory to the persons indemnified who
are defendants in the suit. In the event that XXX elects to assume the defense
of any such suit and retain such legal counsel, the persons indemnified who are
defendants in the suit shall bear the fees and expenses of any additional legal
counsel retained by them. If XXX does not elect to assume the defense of any
such suit, XXX will reimburse the persons indemnified who are defendants in such
suit for the reasonable fees and expenses of any legal counsel retained by them
in such litigation.
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13. Duration and Termination of this Agreement. With respect to each
Portfolio 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 June 16, 1998 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 interested persons of the
Distributor or of the Portfolio, voting in person at a meeting called for the
purpose of voting on such approval, and (b) by the vote of either the Trustees
or a majority of the outstanding shares of the Portfolio. If the continuance of
this Agreement is not approved as to a Portfolio, the Distributor may continue
to render to that Portfolio the services described herein in the manner and to
the extent permitted by the 1940 Act and the rules and regulations thereunder,
and this Agreement shall continue with respect to those Portfolios that have
approved its continuance. This Agreement may be terminated by and between an
individual Portfolio and the Distributor at any time, without the payment of any
penalty (a) on 60 days' written notice, by the Trustees or by a vote of a
majority of the outstanding Retirement Shares of such Portfolio, or by the
Distributor, or (b) immediately, on written notice by the Trustees, in the event
of 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 13, the definitions
contained in Section 2(a) of the 1940 Act (particularly the definitions of
"interested person", "assignment", and "majority of the outstanding shares")
shall be applied.
14. Amendment of this Agreement. No provision of this Agreement may be
changed, waived, discharged, or terminated orally, but only by an instrument in
writing signed by each party against which enforcement of the change, waiver,
discharge, or termination is sought. If XXX should at any time deem it necessary
or advisable in the best interests of a Portfolio that any amendment of this
Agreement be made in order to comply with the recommendations or requirements of
the SEC or any other governmental authority or to obtain any advantage under
state or Federal or tax laws and notifies the Distributor of the form of such
amendment, and the reasons therefore, and if the Distributor should decline to
assent to such amendment, XXX may terminate this Agreement as to that Portfolio
forthwith. If the Distributor should at any time request that a change be made
in XXX' Trust Instrument or By-Laws or in its methods of doing business, or in
the registration statement, the Prospectus or the Statement of Additional
Information of any Portfolio, in order to comply with any requirements of
Federal or state law or regulations of the SEC, or of a national securities
association of which the Distributor is or may be a member, relating to the sale
of Retirement Shares, and XXX should not make such necessary changes within a
reasonable time, the Distributor may terminate this Agreement as to that
Portfolio forthwith.
15. Limitation of Personal Liability. The parties to this Agreement
acknowledge and agree that all liabilities of XXX arising, directly or
indirectly, under this Agreement, of any and every nature whatsoever, shall be
satisfied solely out of the assets of XXX and that no Trustee, officer, employee
or agent, or holder of shares of beneficial interest of XXX, whether past,
present or future, shall be personally liable for any of such liabilities.
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16. Notification by XXX. XXX agrees to advise the Distributor immediately:
(a) of any request by the SEC for amendments to XXX' Registration
Statement insofar as it relates to the Retirement Shares of any of the
Portfolios, the Prospectus or the Statement of Additional Information or for
additional information;
(b) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of XXX' Registration Statement insofar as it
relates to the Retirement Shares of any of the Portfolios, the Prospectus or the
Statement of Additional Information or the initiation of any proceeding for that
purpose;
(c) of the occurrence of any material event which makes untrue any
statement made in XXX' Registration Statement insofar as it relates to the
Retirement Shares of any of the Portfolios, the Prospectus or the Statement of
Additional Information or which requires the making of a change in order to make
the statements therein not misleading; and
(d) of all actions of the SEC with respect to any amendments to XXX'
Registration Statement insofar as they are related to the Retirement Shares of
any of the Portfolios, the Prospectus or the Statement of Additional Information
which may from time to time be filed with the SEC under the 1933 Act.
17. Miscellaneous. The captions in this Agreement are included for
convenience of reference only, and in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
18. Notice. Any notice required or permitted to be given by a party to this
Agreement or to any other party hereunder shall be deemed sufficient if
delivered in person or sent by registered or certified mail, postage prepaid,
addressed by the party giving notice to each such other party at the address
provided below or to the last address furnished by each such other party to the
party giving notice.
If to XXX: 000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Secretary
If to the Distributor: 000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Secretary
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IN WITNESS WHEREOF, the parties have executed this Agreement
ATTEST: JANUS DISTRIBUTORS, INC.
________________________ By: /s/Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: President
ATTEST: JANUS ASPEN SERIES
________________________ By: /s/Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President
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