EXHIBIT 5(e)
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED DISTRIBUTION AGREEMENT (the "Agreement") is made
as of the 14th day of July, 2004, by and between Janus Adviser Series, a
business trust organized and existing under the laws of the State of Delaware
("the Trust"), on behalf of the Class A Shares, Class C Shares, Class I Shares
and Class R Shares (each, a "Class") of each of its portfolios (except that
Janus Adviser Money Market Fund is not authorized to issue Class R Shares),
whether now existing or hereafter created (each a "Fund" or collectively the
"Funds"), and Janus Distributors LLC, a limited liability company organized and
existing under the laws of the State of Delaware ("Distributor" or "Janus
Distributors"). This Agreement amends and restates the Distribution Agreement
dated April 3, 2002 that was amended and restated on June 18, 2002. This
Agreement applies to the Class A Shares, Class C Shares, Class I Shares and
Class R Shares (together, the "Shares") of each Fund of the Trust (except that
Janus Adviser Money Market Fund is not authorized to issue Class R Shares).
WITNESSETH:
WHEREAS, the Trust is engaged in business as an open-end management
investment company registered under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Distributor is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act") and the laws of
each state or jurisdiction in which the Distributor engages in business to the
extent such law requires, and is a member in good standing of the National
Association of Securities Dealers, Inc. (the "NASD") (such registrations and
membership are referred to collectively as the "Registrations"); and
WHEREAS, the Trust and the Distributor are parties to an Amended and
Restated Distribution Agreement, under which the Distributor serves as
Distributor to Class C Shares and Class I Shares of the Funds, and the parties
now wish to amend such agreement to also make the Distributor the distributor of
the Class A Shares and Class R Shares as set forth below; and
WHEREAS, the Trust has adopted on behalf of each of the Class A Shares,
Class C Shares, Class I Shares and Class R Shares of each Fund a separate
Distribution and Shareholder Servicing Plan pursuant to Rule 12b-1 under the
1940 Act; and
WHEREAS, the Trust desires the Distributor to act as the underwriter for
the public offering of the Shares of each Fund;
NOW, THEREFORE, in consideration of the premises and the mutual promises
hereinafter set forth, the parties hereto agree as follows:
1. Appointment. The Trust appoints Janus Distributors to act as
distributor of the Shares.
2. Delivery of Fund Documents. The Trust has furnished the Distributor
with properly certified or authenticated copies of each of the following in
effect on the date hereof and shall furnish the Distributor from time to time
properly certified or authenticated copies of all amendments or supplements
thereto:
(a) Trust Instrument;
(b) Bylaws; and
(c) Resolutions of the Board of Trustees (hereinafter referred to as the
"Trustees") selecting the Distributor as distributor and approving
this form of agreement and authorizing its execution.
The Trust shall furnish the Distributor promptly with copies of any
registration statements filed by it with the Securities and Exchange Commission
(the "SEC") under the Securities Act of 1933, as amended, (the "1933 Act") or
the 1940 Act, together with any financial statements and exhibits included
therein, and all amendments or supplements thereto hereafter filed.
The Trust shall also furnish the Distributor with such other certificates
or documents as the Distributor may from time to time, in its discretion,
reasonably deem necessary or appropriate in order to properly perform its duties
under this Agreement.
3. Solicitation of Orders for Purchase of Shares.
(a) Subject to the provisions of Paragraphs 4 and 7 hereof, and to such
minimum purchase requirements as may from time to time be indicated in the
prospectus or statement of additional information of the Shares of each Fund,
the Distributor is authorized to solicit, as agent on behalf of the Trust,
unconditional orders for purchases of each Fund's Shares authorized for issuance
and registered under the 1933 Act, provided that:
(1) The Distributor shall act solely as a disclosed agent on behalf of
and for the account of the Trust;
(2) The Distributor shall confirm or arrange with the transfer agent for
the shares to confirm all purchases of the Shares. Such confirmation
shall conform to the requirements of Rule 10b-10 under the 1934 Act
and shall clearly state that the Distributor is acting as agent in
the transaction;
(3) The Distributor shall have no liability for payment for purchases of
Shares it sells as agent;
(4) Each order to purchase Shares of a Fund received by the Distributor
shall be subject to acceptance by an officer of the Trust and entry
of the order on such
Fund's records or shareholder accounts and is not binding until so
accepted and entered; and
(5) With respect to the Shares of each Fund, the Distributor may appoint
sub-agents or distribute through dealers (pursuant to the
Distribution and Shareholder Servicing Agreement applicable to that
class, 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.
The purchase price of a Fund's Shares to the public shall be the public
offering price described in Paragraph 6 hereof.
(b) In consideration of the rights granted to the Distributor under this
Agreement, the Distributor will use its best efforts (but only in states and
jurisdictions in which the Distributor may lawfully do so) to solicit from
investors unconditional orders to purchase Shares of each Fund. The Trust shall
make available to the Distributor without cost to the Distributor the currently
effective prospectus and statement of additional information for the Shares of
each Fund and all information, financial statements and other papers that the
Distributor requires for use in connection with the distribution of Shares. The
Trust shall provide such materials in the form of camera ready copies, computer
diskettes, or other form reasonably requested by Distributor, to enable
Distributor to provide one copy or diskette to each shareholder of record (it
being understood that the shareholders of record shall be responsible for
providing copies of such materials to the beneficial owners in accordance with
applicable law).
4. Solicitation of Orders to Purchase Shares by Fund. The rights
granted to the Distributor shall be non-exclusive in that the Trust reserves the
right to otherwise solicit purchases from, and sell Shares to, investors,
including without limitation the right to issue Shares in connection with the
merger or consolidation of any other investment company, trust or personal
holding company with a Fund, or a Fund's acquisition, by the purchase or
otherwise, of all or substantially all of the assets of an investment company,
trust or personal holding company, or substantially all of the outstanding
shares or interests of any such entity.
5. Sales Commission, Compensation and Expenses.
(a) The Trust shall pay all charges of its transfer, shareholder
recordkeeping, dividend disbursing and redemption agents, if any; all expenses
of preparation, printing and mailing of confirmations; all expenses of
preparation and printing of annual or more frequent revisions of each Fund's
prospectus and statement of additional information and of supplying copies
thereof to shareholders; all expenses of registering and maintaining the
Registrations of the Trust under the 1940 Act and the sale of the Trust's Shares
under the 1933 Act; all expenses of qualifying and maintaining qualifications of
each Fund and of the Shares for sale under securities laws of various states or
other jurisdictions and of registration and qualification of each Fund under all
laws applicable to the Trust or its business activities.
(b) The Distributor may receive from the Trust any amounts
authorized for payment to the Distributor out of the applicable Distribution and
Shareholder Servicing Plans for the Shares. The Distributor may use such
payments, in its discretion, to compensate dealers, third party service
providers, or other entities who provide distribution-related services to the
extent permitted by the Distribution and Shareholder Servicing Plans. The
Distributor may retain some or all of such payments pursuant to the Distribution
and Shareholder Servicing Plans in certain circumstances, including when there
is no broker of record or when certain qualification standards have not been met
by the broker of record.
(c) The Distributor shall be entitled to impose a charge on the
sale of the Class A Shares 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 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 Trust Instrument as now in effect or as it may be amended from time to
time, and as reflected in the then current prospectus and statements of
additional information covering the Shares.
7. Suspension of Sales. If and whenever the determination of a Fund's
net asset value is suspended and until such suspension is terminated, no further
orders for Shares shall be accepted by the Trust except such unconditional
orders placed with the Trust and accepted by it before the suspension. In
addition, the Trust reserves the right to suspend sales of Shares of a Fund if,
in the judgment of the Trustees, it is in the best interest of the Fund to do
so, such suspension to continue for such period as may be determined by the
Trustees; and in that event, (i) at the direction of the Trust, the Distributor
shall suspend its solicitation of orders to purchase Shares of such Fund until
otherwise instructed by the Trust and (ii) no orders to purchase Shares
of such Fund shall be accepted by the Trust while such suspension remains in
effect unless otherwise directed by its Trustees.
8. Authorized Representations. The Distributor is not authorized by the
Trust to give on behalf of any Fund any information or to make any
representations in connection with the sale of Shares other than the information
and representations contained in such Fund's registration statement filed with
the SEC under the 1933 Act and/or the 1940 Act, covering Shares, as such
registration statement or such Fund's prospectus or statement of additional
information may be amended or supplemented from time to time, or contained in
shareholder reports or other material that may be prepared by or on behalf of
such Fund or approved by such Fund for the Distributor's use.
9. Registration of Additional Shares. The Trust hereby agrees to
register an indefinite number of Shares pursuant to Rule 24f-2 under the 1940
Act. The Trust will, in cooperation with the Distributor, take such action as
may be necessary from time to time to qualify the Shares of each Fund (so
registered or otherwise qualified for sale under the 1933 Act), in any state or
jurisdiction mutually agreeable to the Distributor and the Trust, and to
maintain such qualification; provided, however, that nothing herein shall be
deemed to prevent the Trust from qualifying the Shares without approval of the
Distributor in any state it deems appropriate.
10. Conformity With Law. The Distributor agrees that in soliciting
orders to purchase Shares it shall duly conform in all respects with applicable
federal and state laws and with the rules and regulations of the NASD. The
Distributor will use its best efforts to maintain its Registrations in good
standing during the term of this Agreement and will promptly notify the Trust in
the event of the suspension or termination of any of the Registrations.
11. Anti-Money Laundering. The Distributor agrees that it will establish
and implement an anti-money laundering program that duly conforms in all
respects with current applicable federal anti-money laundering laws and
regulations.
12. Independent Contractor. The Distributor shall be an independent
contractor and neither the Distributor, nor any of its officers, directors,
employees, or representatives is or shall be an employee of the Trust in the
performance of the Distributor's duties hereunder. The Distributor shall be
responsible for its own conduct and the employment, control, and conduct of its
agents and employees and for injury to such agents or employees or to others
through its agents and employees and agrees to pay or to insure that persons
other than the Trust will pay all employee taxes due with respect to the
activities of its agents and employees.
13. Indemnification. The Distributor agrees to indemnify and hold
harmless the Trust and each of the Trustees and its officers, employees and
representatives and each person, if any, who controls the Trust within the
meaning of Section 15 of the 1933 Act against any and all losses, liabilities,
damages, claims and expenses (including the reasonable costs of investigating or
defending any alleged loss, liability, damage, claim or expense and reasonable
legal counsel fees incurred in connection therewith) to which the Trust or such
Trustees, officers, employees, representatives, or controlling person or persons
may become subject under the 1933 Act, under
any other statute, at common law, or otherwise, arising out of the acquisition
of any shares of any Fund by any person which (i) may be based upon any wrongful
act by the Distributor or any of the Distributor's directors, officers,
employees or representatives, or (ii) may be based upon any untrue statement or
alleged untrue statement of a material fact contained in a registration
statement, prospectus, statement of additional information, shareholder report
or other information covering Shares of such Fund filed or made public by the
Trust or any amendment thereof or supplement thereto or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if such statement or
omission was made in reliance upon information furnished to such Fund by the
Distributor in writing. In no case (i) is the Distributor's indemnity in favor
of the Trust, or any person indemnified, to be deemed to protect the Trust or
such indemnified person against any liability to which the Trust or such person
would otherwise be subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of its or such person's duties or by reason of its
or such person's reckless disregard of its or such person's obligations and
duties under this Agreement, or (ii) is the Distributor to be liable under its
indemnity agreement contained in this paragraph with respect to any claim made
against the Trust or any person indemnified unless the Trust or such person, as
the case may be, shall have notified the Distributor in writing of the claim
within a reasonable time after the summons, or other first written notification,
giving information of the nature of the claim served upon the Trust or upon such
person (or after the Trust or such person shall have received notice of such
service on any designated agent). However, failure to notify the Distributor of
any such claim shall not relieve the Distributor from any liability that the
Distributor may have to the Trust or any person against whom such action is
brought otherwise than on account of the Distributor's indemnity agreement
contained in this Paragraph.
The Distributor shall be entitled to participate, at its own expense, in
the defense, or, if Distributor so elects, to assume the defense of any suit
brought to enforce any such claim but, if the Distributor elects to assume the
defense, such defense shall be conducted by legal counsel chosen by the
Distributor and satisfactory to the persons indemnified who are defendants in
the suit. In the event that the Distributor elects to assume the defense of any
such suit and retain such legal counsel, persons indemnified who are defendants
in the suit shall bear the fees and expenses of any additional legal counsel
retained by them. If the Distributor does not elect to assume the defense of any
such suit, the Distributor will reimburse persons indemnified who are defendants
in such suit for the reasonable fees of any legal counsel retained by them in
such litigation.
The Trust agrees to indemnify and hold harmless the Distributor and each
of its directors, officers, employees, and representatives and each person, if
any, who controls the Distributor within the meaning of Section 15 of the 1933
Act against any and all losses, liabilities, damages, claims or expenses
(including the reasonable costs of investigating or defending any alleged loss,
liability, damage, claim or expenses and reasonable legal counsel fees incurred
in connection therewith) to which the Distributor or such of its directors,
officers, employees, representatives or controlling person or persons may become
subject under the 1933 Act, under any other statute, at common law, or otherwise
arising out of the acquisition of any shares by any person which (i) may be
based upon any wrongful act by the Trust or any of the Trustees, or the Trust's
officers,
employees or representatives other than the Distributor, or (ii) may be based
upon any untrue statement or alleged untrue statement of a material fact
contained in a registration statement, prospectus, statement of additional
information, shareholder report or other information covering Shares filed or
made public by the Trust or any amendment thereof or supplement thereto, or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading unless
such statement or omission was made in reliance upon information furnished by
the Distributor to the Trust. In no case (i) is the Trust's indemnity in favor
of the Distributor or any person indemnified to be deemed to protect the
Distributor or such indemnified person against any liability to which the
Distributor or such indemnified person would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance of its or
such person's duties or by reason of its or such person's reckless disregard of
its or such person's obligations and duties under this Agreement, or (ii) is the
Trust to be liable under its indemnity agreement contained in this Paragraph
with respect to any claim made against the Distributor or any person indemnified
unless the Distributor, or such person, as the case may be, shall have notified
the Trust in writing of the claim within a reasonable time after the summons, or
other first written notification, giving information of the nature of the claim
served upon the Distributor or upon such person (or after the Distributor or
such person shall have received notice of such service on any designated agent).
However, failure to notify the Trust of any such claim shall not relieve the
Trust from any liability which the Trust may have to the Distributor or any
person against whom such action is brought otherwise than on account of the
Trust's indemnity agreement contained in this Paragraph.
The Trust shall be entitled to participate, at its own expense, in the
defense or, if the Trust so elects, to assume the defense of any suit brought to
enforce such claim but, if the Trust elects to assume the defense, such defense
shall be conducted by legal counsel chosen by the Trust and satisfactory to the
persons indemnified who are defendants in the suit. In the event that the Trust
elects to assume the defense of any such suit and retain such legal counsel, the
persons indemnified who are defendants in the suit shall bear the fees and
expenses of any additional legal counsel retained by them. If the Trust does not
elect to assume the defense of any such suit, the Trust will reimburse the
persons indemnified who are defendants in such suit for the reasonable fees and
expenses of any legal counsel retained by them in such litigation.
14. Duration and Termination of this Agreement. This Agreement shall
become effective as of the date first written above and unless terminated as
provided herein, shall remain in effect through July 1, 2005, and from year to
year thereafter with respect to each Class of Shares of each Fund, but only so
long as such continuance is specifically approved at least annually (a) by a
vote of a majority of the Trustees who are not parties to this Agreement or
interested persons of any such party, voting in person at a meeting called for
the purpose of voting on such approval, and (b) by the vote of either a majority
of the Trustees or a majority of the outstanding voting securities of the
respective Class of Shares. If the continuance of this Agreement is not approved
as to a Class of Shares of a Fund or a Fund as a whole, the Distributor may
continue to render to that Class of Shares or Fund the services described herein
in the manner and to the extent permitted by the 1940 Act and the rules and
regulations thereunder, and this Agreement shall continue with respect to a
Class of Shares of the Funds, or those Funds as a
whole that have approved its continuance. This Agreement may be terminated with
respect to a Class of Shares of a Fund or a Fund as a whole, without the payment
of any penalty, on 60 days' written notice, (a) by a vote of a majority of the
Trustees or by a vote of a majority of the outstanding voting securities of such
Class of Shares of the Fund or of the Fund, and (b) in the case of the Class A
Shares, Class C Shares, Class I Shares or Class R Shares of a Fund, by a vote of
a majority of the Trustees who are not interested persons of the Trust and have
no direct or indirect financial interest in the operation of the Distribution
and Shareholder Servicing Plan for such Shares or in any agreements related to
such Distribution and Shareholder Servicing Plan, or (c) by the Distributor.
Without prejudice to any other remedies of the Trust, the Trust may terminate
this Agreement at any time immediately on written notice in the event of the
Distributor's failure to fulfill any of its obligations hereunder, including the
termination or suspension of any of the Registrations. This Agreement will
automatically terminate in the event of its assignment.
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 the Trust's Trust Instrument or Bylaws or in its
methods of doing business, or in the registration statement, the prospectus or
the statement of additional information of any Fund, in order to comply with any
requirements of Federal or state law or regulations of the SEC, or of a national
securities association of which the Distributor is or may be a member, relating
to the sale of Shares, and the Trust should not make such necessary changes
within a reasonable time, the Distributor may terminate this Agreement as to
that Fund or class forthwith.
16. Limitation of Personal Liability. The parties to this Agreement
acknowledge and agree that all liabilities of the Trust arising, directly or
indirectly, under this Agreement, of any and every nature whatsoever, shall be
satisfied solely out of the assets of the Trust and that no Trustee, officer,
employee or agent, or holder of shares of beneficial interest of the Trust,
whether past, present or future, shall be personally liable for any of such
liabilities.
17. Notification by the Trust. The Trust agrees to advise the
Distributor immediately:
(a) of any request by the SEC for amendments to the Trust's
Registration Statement insofar as it relates to the Shares of any of the Funds,
the prospectus or the statement of additional information or for additional
information;
(b) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of the Trust's Registration Statement insofar as it
relates to the Shares of any of the Funds, the prospectus or the statement of
additional information or the initiation of any proceeding for that purpose;
(c) of the occurrence of any material event which makes untrue any
statement made in the Trust's Registration Statement insofar as it relates to
the Shares of any of the Funds, the prospectus or the statement of additional
information or which requires the making of a change in order to make the
statements therein not misleading; and
(d) of all actions of the SEC with respect to any amendments to
the Trust's Registration Statement, which may from time to time be filed with
the SEC under the 1933 Act, insofar as they are related to the Shares of any of
the Funds, the prospectus or the statement of additional information.
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 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 supercedes 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
[THE REMAINDER OF THE PAGE LEFT INTENTIONALLY BLANK.]
IN WITNESS WHEREOF, the parties have executed this Agreement.
ATTEST: JANUS ADVISER SERIES
/s/ Xxxxxxxxx Xxxxxxxxxx-Xxxxxx By: /s/Xxxxxx X. Xxxxxx
------------------------------- ----------------------------------
Xxxxxx X. Xxxxxx
President and Chief Executive Officer
ATTEST: JANUS DISTRIBUTORS LLC
/s/ Xxxxxxxxx Xxxxxxxxxx-Xxxxxx By: /s/Xxxxx X. Xxxxx
------------------------------- ----------------------------------
Xxxxx X. Xxxxx
Vice President of Finance and Chief
Financial Officer
EXHIBIT A
DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
JANUS ADVISER SERIES
JANUS ADVISER
CLASSES A, C, I AND INVESTOR SHARES
This Agreement is made as of _________, by and between Janus
Distributors LLC (the "Distributor"), Janus Services LLC ("Janus Services"),
each a Delaware limited liability company, and ___________(the "Service
Provider"), a ____________________ corporation.
RECITALS
A. The Distributor serves as the distributor to the open-end management
investment companies listed on Exhibit A hereto (the "Trusts"), each of which is
or will be registered under the Investment Company Act of 1940 (the "1940 Act").
X. Xxxxx Services is the registered transfer agent of the Trusts.
C. The share classes listed on Exhibit A hereto ("Shares") of the
series of the Trusts (each a "Fund") are or will be registered with the
Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as
amended (the "Securities Act") and offered to the public through prospectuses
(each, a "Prospectus") and statements of additional information (each, an
"SAI").
D. The Distributor desires Service Provider and Service Provider agrees
to provide distribution assistance pertaining to the Funds and/or recordkeeping
and other administrative services to its customers who purchase Shares.
X. Xxxxx Services desires to appoint Service Provider and Service
Provider desires to serve, as Janus Services' agent for the limited purposes of
accepting orders for the purchase and redemption of Shares of the Funds by the
Service Provider and providing shareholder servicing pertaining to the Funds on
behalf of Service Provider's customers investing in Shares.
F. Pursuant to Rule 12b-1 under the 1940 Act, the Trusts on behalf of
each Fund has adopted a Distribution and Shareholder Servicing Plan (the "12b-1
Plan") for each class of those Shares which, among other things, authorizes the
Distributor to compensate financial intermediaries such as the Service Provider
out of each Fund's average daily net assets attributable to such Shares.
G. [Certain of the Funds pay Janus Services an administration fee for
providing or procuring recordkeeping, sub accounting and other administrative
services to investors in Shares of certain classes, and Janus Services may
compensate intermediaries such as the Service Provider for providing these
services to its customers who purchase such Shares.] [FOR USE ONLY WITH I SHARE
FORMS]
X. Xxxxx Services and the Service Provider are members in good standing
of the National Securities Clearing Corporation (the "NSCC") and have access to
the NSCC's Defined Contribution Clearance and Settlement system ("DCC&S") and/or
Fund/SERV system ("Fund/SERV") (collectively, the "NSCC Systems").
I. The Service Provider has executed the NSCC Fund/SERV Agreement and
related Addendum (or similar mutually acceptable agreement) (together, the "NSCC
Agreement") with Janus Services or its affiliate, and Service Provider intends
to place trades for Shares via the NSCC Systems.
AGREEMENT
1. Services of Service Provider.
(a) Services that Service Provider may provide include the
following:
(i) assisting the Distributor in marketing Shares of
the Funds to Service Provider's prospective and existing customers
("Customers").
(ii) providing facilities to answer questions from
Customers about the Funds; receiving and answering correspondence;
assisting Customers in changing dividend and other account options; and
any other activities as the Distributor may reasonably request to the
extent permitted under applicable laws or regulations or the National
Association of Securities Dealers, Inc. ("NASD") Rules of Conduct,
including but not limited to the services set forth on Exhibit B of
this Agreement.
(b) Service Provider will provide such office space and
equipment, telephone facilities, and personnel as may be reasonably necessary or
beneficial in order to provide such services to Customers.
(c) All orders for Shares are subject to acceptance or
rejection by the Trusts in their sole discretion and the Trusts may, in their
discretion and without notice, suspend or withdraw the sale of Shares of any
Fund, including the sale of such Shares to the Service Provider for the account
of any Customers.
(d) Service Provider shall not make the Shares available to
Customers except in compliance with federal and state securities law and subject
to the terms of the Prospectus for the Shares. Service Provider shall be
responsible for delivering the Prospectus, SAI, shareholder reports, proxy
materials and similar materials for the Shares to Customers in accordance with
and within the time frames required by applicable law.
(e) Orders for the purchase of Fund Shares shall be executed
at the then-current public offering price per Shares (i.e., the net asset value
("NAV") per Share plus any applicable sales charge) and all orders for the
redemption of any Fund Shares shall be executed at the NAV per Share less any
applicable contingent deferred sales charge or redemption fee.
2
(f) The Service Provider will furnish to the Distributor, the
Trusts or their designees such information as the Distributor may reasonably
request, and will otherwise cooperate with the Distributor in the preparation of
reports to the Trusts' Boards of Trustees concerning this Agreement, as well as
any other reports or filings that may be required by law.
2. Order Processing.
(a) Service Provider 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. Service Provider will not act in a
principal capacity or as a principal underwriter to the Funds as defined in the
1940 Act.
(b) Orders will generally be processed pursuant to the NSCC
Agreement. Janus Services will accept trades not submitted via the NSCC Systems
on an exception-only basis in accordance with the following terms:
On any business day ("Day One"), the Service Provider may
accept orders from Customers for the purchase and redemption of Shares
of the Funds. The Service Provider will send such orders to Janus
Services prior to 9:00 a.m. Eastern Time of the next business day ("Day
Two") pursuant to the Trading Requirements listed on Exhibit C. The
Funds will execute orders at the net asset values as determined as of
the close of trading on Day One, and dividends, if applicable, shall
begin to accrue on Day Two, provided that:
(i) Service Provider received such orders prior to
the time the NAVs of the Shares of the Funds were calculated on Day
One, and
(ii) Such orders and payment for such orders were
received by Janus Services prior to the times set forth in Exhibit C.
If either of the above conditions is not met, the orders will
be executed at the public offering price next in effect after such
orders are received, and dividends, if applicable, will begin to accrue
the day after settlement.
(c) Payment for net purchases and redemptions will be wired
pursuant to the NSCC Agreement, or pursuant to the Settlement Requirements
outlined in Exhibit C for trades not submitted via the NSCC Systems. In the
event of extraordinary market conditions affecting any such redemption, however,
Janus Services may delay such redemption for up to five business days, or longer
to the extent permitted under Section 22(e) of the 1940 Act.
(d) Janus Services will provide to the Service Provider
closing NAVs, dividends, and capital gains information at the close of trading
each business day. Dividends and capital gains distributions shall be reinvested
in accordance with the terms of the Prospectus.
3
(e) Notwithstanding any agreement between the parties to the
contrary, Janus Services will accept Customer-level accounts provided that all
trades are processed through the NSCC Systems. Service Provider's failure to use
the NSCC Systems for all processing for and maintenance of Customer-level
accounts may result in Janus Services permitting only one omnibus account in the
Service Provider's name. Service Provider shall open each new account by
submitting an application to Janus Services prior to placing any order for or
funding any such account. The form of such application shall be provided to
Service Provider by Janus Services.
(f) Service Provider will collect all applicable contingent
deferred sales charges in accordance with the terms of the then-current
Prospectus and will forward all such contingent deferred sales charges to Janus
Distributors on a monthly basis or Service Provider will establish all accounts
in such a manner so as to enable Janus Distributors to waive contingent deferred
sales charges to such accounts in accordance with the terms of the then-current
Prospectus, including without limitation, dividends and cash distributions. [IN
ADDITION, SERVICE PROVIDER AND DISTRIBUTOR MUTUALLY AGREE TO WAIVE ALL
CONTINGENT DEFERRED SALES CHARGES FOR PARTICIPANT-DIRECTED RETIREMENT PLANS.]
[INCLUDE FOR PLAN KS ONLY]
(g) 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 Trusts' stated policies may be subsequently revoked or
cancelled by Janus Services and that Janus Services shall not be responsible for
any losses incurred by Service Provider or any Customer as a result of such
cancellation. Janus Services or its agent shall notify Service Provider of any
such cancellation prior to 12:00 p.m. Eastern Time on Day Two.
(h) Service Provider acknowledges that Janus Services has the
right to refuse any purchase order for any reason, particularly if the Trusts
determine that a Fund would be unable to invest the money effectively in
accordance with its investment policies or would otherwise be adversely affected
due to the size of the transaction, frequency of trading by the account or other
factors.
(i) Service Provider acknowledges its obligation to record and
track each Customer's investments in Shares, and to at all times ensure that
each Customer is charged the correct sales load or contingent deferred sales
load as calculated in accordance with the sales load schedule applicable to each
class of Shares, taking into account any breakpoints, rights of accumulation,
letter of intent or other modification in such schedule as described in a Fund's
then current Prospectus or otherwise agreed with such Customer with respect to
any Shares (individually or collectively, "Discounts"). Without limiting the
foregoing, Service Provider acknowledges its obligation to (i) review and
understand the Discounts; (ii) obtain all necessary information from its
Customers necessary 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;
4
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.
(j) Service Provider acknowledges its obligation to each of
its Customers to make an appropriate determination or recommendation as to the
suitability of a particular share class for a particular Customer, and shall
comply with such suitability obligations in connection with any purchase of
Shares by its Customers.
(k) 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
Distributor's part; and (ii) will immediately pay such loss to the Fund upon
notification.
(l) With respect to net asset value information, Janus
Services shall make the determination as to whether an error in the net asset
value 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 Trusts, such as Acts of God, fires, electrical or phone outages,
be considered pricing errors and neither Janus Services nor the Trusts 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
shareholders in the Funds.
3. Late Trading. Service Provider certifies that it is 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, 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 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
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.
4. Compensation.
(a) In return for providing the services set forth in this
Agreement, Service Provider shall be entitled to such re-allowance of the
initial sales charge as outlined in Exhibit A,
5
Section 1. 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.
(b) In addition to the re-allowance described above in
paragraph 4(a), Service Provider shall be entitled to receive an on-going 12b-1
fee and administration fee, each in an amount calculated and paid as set forth
in Exhibit A, Sections 2 and 3. With respect to Class C Shares of Janus Adviser
Series, such 12b-1 fee will begin to accrue in the 13th month after such Share
purchase. The Distributor's obligation to pay such 12b-1 fee is limited solely
to the proceeds of the 12b-1 fees received from the Trusts.
(c) In addition to the re-allowance described in paragraph
4(a), Service Provider shall be entitled to receive a one-time fee, in an amount
as set forth in Exhibit A, Section 4, 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.
(d) For all orders processed via the NSCC Systems, Distributor
will daily calculate and pay the fees payable pursuant to Exhibit A, Section 1
of this Agreement, and will make such payment to the Service Provider. For
orders processed manually, Distributor will calculate and pay such fees two
times per month.
(e) Distributor will calculate the fees payable pursuant to
Exhibit A, Section 2 of this Agreement at the end of each month and will make
such payment to the Service Provider.
(f) Janus Services will calculate the fees payable pursuant to
Exhibit A, Section 3 of this Agreement, at the end of each month and will make
such payment to the Service Provider.
(g) Distributor will calculate the fees payable pursuant to
Exhibit A, Section 4 of this Agreement, two times per month and will make such
payments to the Service Provider.
(h) Each payment will be accompanied by a statement showing
the calculation of the amounts payable by Distributor and such other supporting
data as may be reasonably requested by the Service Provider. Payments to Service
Provider for periods 180 days or more prior to the current month shall be at
Distributor's discretion. The fees due under this Agreement shall not apply to
Fund Shares held by any Customer prior to the date of this Agreement.
(i) If Service Provider utilizes a third party who has an
agreement with Janus Services and/or Distributor to provide some or all of the
services set forth in this Agreement and Service Provider wishes Janus Services
and/or Distributor to directly pay such third party for such services, the total
payment due to the Service Provider or the third party from Janus Services
and/or Distributor for such services provided by such third party on behalf of
the Service Provider shall not exceed the fees set forth pursuant to this
Agreement. Service Provider acknowledges that when placing trades through third
parties with which Janus Services and/or
6
Distributor has agreements to provide some or all of the services set forth in
this Agreement, Janus Services and/or Distributor will process reimbursements
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 of reimbursement amounts, Janus Services and/or Distributor shall pay
such third parties directly and shall not be responsible for payment of disputed
balances to Service Provider. In no event shall Janus Services and/or
Distributor make partial payments of fees to both the Service Provider and any
such third party.
(j) The provisions of any Rule 12b-1 Plan and distribution
agreement between the Funds and the Distributor shall control over this
Agreement in the event of any inconsistency. Any Rule 12b-1 Plan in effect on
the date of this Agreement is described in the relevant Fund's Prospectus and/or
SAI. Service Provider hereby acknowledges that all payments under any Rule 12b-1
Plan are subject to limitations contained in such Rule 12b-1 Plan and
distribution agreement and may be varied or discontinued at any time.
(k) 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 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 forthwith refund to
Distributor the full compensation, if any, paid to Service Provider on the
original sale. Service Provider agrees to notify 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.
5. Indemnification. The Service Provider shall indemnify Distributor,
Janus Services, the Trusts and their affiliates, directors, trustees, employees
and shareholders for any loss (including without limitation, litigation costs
and expenses and attorneys' and experts' fees) directly resulting from Service
Provider's negligent or willful act, omission or error, or Service Provider's
breach of this Agreement. Such indemnification shall survive termination of the
Agreement.
6. Approval of Informational Materials.
(a) No person is authorized to make any representations
concerning the Trusts, the Funds, the Shares, or Distributor except those
representations contained in the then-current Prospectuses and SAIs for the
Shares and in such printed information as Distributor or the Trusts may
subsequently prepare. Service Provider shall send all filings with state and
federal agencies and marketing materials in which the Trusts or the Funds are
named to Distributor for review at least fifteen business days prior to its
filing or general release. No such materials shall be used if Distributor
reasonably objects to such use.
(b) If Service Provider elects to include any materials
provided by Distributor, specifically Prospectuses, SAIs, shareholder reports or
proxy materials, on its website or in any other computer or electronic format,
Service Provider assumes sole responsibility for maintaining such materials in
the form provided by Distributor and for promptly replacing such materials with
all updates provided by Distributor.
7
7. Maintenance of Records.
(a) Service Provider shall maintain and preserve all records
as required by law to be maintained and preserved in connection with providing
the services herein. Upon the reasonable request of Distributor or the Trusts,
Service Provider shall provide Distributor, the Trusts or the representative of
either, copies of all such records.
(b) Service Provider shall maintain and transmit to
Distributor information on sales, redemptions and exchanges of Shares of each
Fund by state or jurisdiction of residence of individual Customers and any other
information requested by Distributor to enable Distributor or its affiliates to
properly register or report the sale of the Shares under the securities,
licensing or qualification laws of the various states and jurisdictions. Such
information shall be provided in a form mutually agreeable to Distributor and
Service Provider.
8. Operations of the Funds. Nothing in this Agreement shall in any way
limit the authority of the Trusts or Distributor to take such lawful action as
either may deem appropriate or advisable in connection with all matters relating
to the operation of the Funds and the sale of the Shares. The parties
acknowledge that nothing in this Agreement shall in any way preclude or prevent
the Trusts' Boards of Trustees from taking any actions deemed necessary by such
Trustees in furtherance of their fiduciary duties to the Trusts 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.
9. Proprietary Rights. Janus Capital International Holding ("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 Trusts, Distributor, Janus Holding, or their affiliates, or any products or
services sponsored, managed, advised, or administered by the Trusts,
Distributor, Janus Holding or their affiliates, except those contained in the
then-current Prospectus and the then-current printed sales literature for the
Shares of the Funds. The Service Provider will make no use of the name or xxxx
"Xxxxx" except as expressly provided in this Agreement or expressly authorized
by Janus Holding in writing. All goodwill associated with the name and xxxx
"Xxxxx" shall inure to the benefit of Janus Holding or its affiliate. Upon
termination of this Agreement for any reason, the Service Provider shall
immediately cease any and all use of any Xxxxx xxxx(s).
10. 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.
8
11. Representations, Warranties and Agreements. The Service
Provider represents, warrants, and covenants that:
(a) The Service Provider will comply in all material respects
with all applicable laws, rules and regulations;
(b) The Service Provider is authorized to enter into this
Agreement;
(c) The Service Provider is registered with the SEC as a
broker and dealer pursuant to the Securities Exchange Act of 1934 (the "Exchange
Act"), is a member in good standing of the NASD and is qualified to conduct
business under the laws of any applicable state in which the Shares may be sold,
or is not required to be so registered in order to enter into and perform the
services set forth in this Agreement;
(d) The performance of the duties and obligations and
provision of services by Service Provider as described in this Agreement and the
receipt of the fee provided in this Agreement will not violate federal or state
banking law, the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), the Internal Revenue Code of 1986, as amended (the "Code"), federal
or state securities laws, or any other applicable law;
(e) The fee arrangement under this Agreement will be disclosed
to each Customer prior to the Service Provider's receipt of fees hereunder;
(f) [SELECT ALTERNATIVE A OR B] A. [Neither Service Provider,
nor any affiliate, will be a "fiduciary" of the Customers as such term is
defined in Section 3(21) of ERISA and Section 4975 of the Code.] B. [Service
Provider will reduce the fees it charges to the Customers by an amount equal to
the fees paid pursuant to this Agreement.] The receipt of the fees described in
this Agreement by the Service Provider will not constitute a non-exempt
"prohibited transaction," as such term is defined in Section 406 of ERISA and
Section 4975 of the Code;
(g) If Service Provider intends to offer Shares to its
Customers as part of a fee-based account program, such program will comply with
any law, rule or regulation applicable to it including, but not limited to, the
safe harbor provisions of Rule 3a-4 under the 1940 Act;
(h) Each transaction shall be for the accounts of Customers
and not for Service Provider's own account;
(i) Any information Service Provider provides to Customers
concerning the Funds will be based on information contained in the Prospectus or
SAI for the Funds, or on promotion materials or sales literature that the
Distributor furnishes to the public;
(j) Service Provider will distribute Fund Prospectuses, SAIs,
proxy materials and other shareholder communications to Customers in accordance
with applicable regulatory requirements, except to the extent the Distributor
expressly undertakes in writing to do so;
9
(k) Service Provider will not effect any transactions
(including, without limitation, any purchases, exchanges and redemptions) in any
Fund Shares, registered in the name of, or beneficially owned by, any Customer,
unless to Service Provider's knowledge, such Customer has granted to Service
Provider full right, power and authority to effect such transactions on such
Customer's behalf;
(l) Service Provider will obtain from each Customer for whom
it acts as agent for the purchase of Fund Shares any taxpayer identification
number certification and such other information as may be required from time to
time under the Code, and the regulations thereunder, and will provide
Distributor or its designee with timely written notice of any failure to obtain
such taxpayer identification number certification or other information in order
to enable implementation of any required withholding; and
(m) Service Provider is in compliance with all applicable
anti-money laundering laws, rules and regulations including, but not limited to,
the U.S.A. PATRIOT Act of 2001, P.L. 107-56.
12. Confidentiality of Customer Information. The names, addresses and
other information concerning Customers are and shall remain the sole property of
Service Provider. Neither the Distributor, Janus Services, their affiliates, nor
their officers, directors, employees or agents, or any control person of the
foregoing persons, shall use such names, addresses or other information for any
purpose except in connection with the performance of the Distributor's and Janus
Services' duties and responsibilities hereunder and except for shareholder
servicing and informational mailings relating to the Funds. Notwithstanding the
foregoing, this Section 11 shall not prohibit the Distributor, Janus Services or
any of their affiliates from using for any purpose the names, addresses or other
information concerning any of Service Provider's Customers if such names,
addresses or other information are obtained in any manner other than from
Service Provider pursuant to this Agreement. The provisions of this Section 11
shall survive termination of this Agreement.
13. Termination.
(a) Unless sooner terminated with respect to any Fund, this
Agreement will continue with respect to a Fund only if the continuance of a form
of this Agreement is specifically approved at least annually by the vote of a
majority of the members of the Board of Trustees of the applicable Trust,
including a majority of the members of The Board of Trustees of such Trust who
are not "interested persons" (as such term is defined in the 0000 Xxx) and who
have no direct or indirect financial interest in the 12b-1 Plan relating to such
Fund or any agreement relating to such 12b-1 Plan, including this Agreement,
cast in person at a meeting called for the purpose of voting on such approval.
(b) This Agreement will automatically terminate with respect
to a Fund in the event of its assignment (as such term is defined in the 0000
Xxx) with respect to such Fund. This Agreement may be terminated with respect to
any Fund by the Distributor or by the Service Provider, without penalty, upon 60
days' prior written notice to the other party, with a copy to Janus Services.
This Agreement may also be terminated with respect to any Fund at any time
10
without penalty by the vote of a majority of the members of the Boards of
Trustees of the Trusts who are not "interested persons" (as such term is defined
in the 0000 Xxx) and who have no direct or indirect financial interest in the
12b-1 Plan relating to such Fund or any agreement relating to such Plan,
including this Agreement, or by a vote of a majority of the Shares of such Fund
on 60 days' written notice.
(c) In addition, any party may terminate this Agreement
immediately if at any time it is determined by any federal or state regulatory
authority that compensation to be paid under this Agreement is in violation of
or inconsistent with any federal or state law.
14. Miscellaneous.
(a) No modification of any provision of this Agreement will be
binding unless in writing and executed by the parties. No waiver of any
provision of this Agreement will be binding unless in writing and executed by
the party granting such waiver.
(b) This Agreement shall be binding upon and shall inure to
the benefit of the parties and their respective successors and assigns;
provided, however that neither this Agreement nor any rights, privileges,
duties, or obligations of the parties may be assigned by either party without
the written consent of the other party or as expressly contemplated by this
Agreement.
(c) This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Colorado, exclusive of conflicts of
laws.
(d) This Agreement may be executed in several counterparts,
each of which shall be an original but all of which together shall constitute
one and the same instrument.
11
(e) All notices and other communications to Service Provider,
Janus Services or Distributor will be duly given if mailed or faxed to the
address set forth below, or to such other address as any party may provide in
writing to the other parties.
If to Distributor: If to Janus Services:
Janus Distributors LLC Janus Services LLC
000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000 Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel Attn: General Counsel
If to the Service Provider:
_________________________
_________________________
_________________________
_________________________
JANUS DISTRIBUTORS LLC
_______________________________________
(Name of Service Provider)
By:_________________________________ By:___________________________________
Name:_______________________________ Name:_________________________________
Title:______________________________ Title:________________________________
JANUS SERVICES LLC
By:_________________________________
Name:_______________________________
Title:______________________________
12
EXHIBIT A
TO DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
Trusts and funds available under this Agreement*
Janus Adviser Series --
Janus Adviser --
Any series of the Trusts open to new investors ("Funds")
SECTION 1
Initial Sales Charge Re-allowance
Share Class Re-allowance(1)
----------- ---------------
Class A Not Waived
SECTION 2
12b-1 Fee Factor per Annum paid by the Distributor
Share Class Fee Factor per Annum
--------------- --------------------
Class A 0.25%
Class C 1.00%**
Class I 0.25%
Investor Shares 0.25% ***
*Certain Funds may become closed to new investors after the date of this
Agreement. If a certain Fund closes, such Fund may no longer be available for
purchase or may be purchased only under certain restrictions as determined by
that Fund and set forth in the Funds' then-current Prospectus. Class A and C
Shares of Janus Adviser Money Market Fund are available only by exchange out of
Class A or C Shares, respectively, of another Fund. Not all share classes are
available for all Funds.
** 0.25% for the Janus Money Market Fund
*** Investor Shares are not available for all Funds
-----------
(1) 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.
13
EXHIBIT A
TO DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
(CONTINUED)
SECTION 3
Administration Fee Factor per Annum paid by Janus Services
Share Class Fee Factor per Annum
--------------- --------------------
Class I 0.25%
Investor Shares 0.10%***
SECTION 4
One-Time Fee
Name of Fund Fee Factor
-------------------------------------------------- ----------
All Funds of Janus Adviser Series (Class C Shares) 1.00%
except Money Market Fund
Janus Adviser Money Market Fund (Class C Shares) 0.00%
The average aggregate amount invested each month in the Shares of each
Fund by Customers is multiplied by a pro-rata fee factor. The pro rata fee
factor is calculated by: (a) dividing the per annum factor set forth above for
the Shares of each Fund by the number of days in the applicable year, and (b)
multiplying the result by the actual number of days in the applicable month. The
average aggregate amount invested over a one-month period shall be computed by
totaling the aggregate investment by Customers who receive services hereunder
from the Service Provider (Share NAV multiplied by total number of Shares held)
on each calendar day during the month and dividing by the total number of
calendar days during such month.
--------------
*** Investor Shares are not available for all Funds
14
EXHIBIT B
TO DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
Service Provider shall, at Service Provider's expense, provide the following
services for Customers:
Receive, aggregate, and process Customer orders;
Issue confirmations for transactions by Customers;
Maintain records for Customers, which records shall reflect Shares
purchased and redeemed, including the date and price for all
transactions, and Share balances;
Disburse or credit to Customers, and maintain records of, all proceeds
of redemptions of Shares and all other distributions not reinvested in
Shares; and
Prepare and transmit to Customers periodic account statements showing
the total number of Shares owned by the Customers as of the statement
closing date, purchases and redemptions of Shares by the Customers
during the period covered by the statement, and the dividends and other
distributions paid to the Customers during the statement period
(whether paid in cash or reinvested in Shares).
Other (specify)________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
15
EXHIBIT C
TO DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
NON-NSCC TRADING AND SETTLEMENT REQUIREMENTS
1. TRADING REQUIREMENTS
A. All trades must be netted (i.e., one purchase or redemption per
Fund, per account). For example: a purchase for $2,000 and a redemption for $500
should be netted into one purchase for $1,500.
B. All trades must be submitted in dollars. No Share trades will be
accepted.
C. No exchanges will be accepted, sell/buys must be requested.
D. Electronic or typed trade requests must be received by Janus
Services prior to 9:00 a.m. EST.
E. All trades will be processed at the public offering price.
2. SETTLEMENT REQUIREMENTS
A. Service Provider will send Janus Services one combined purchase wire
for all purchase orders by 2:00 p.m. EST on Day Two.
X. Xxxxx Services will send one combined wire for all redemption
proceeds by 4:00 p.m. EST on Day Two.
16
DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
JANUS ADVISER SERIES
JANUS ADVISER
CLASSES I AND R SHARES
This Agreement is made as of _______________, by and between Janus
Distributors LLC (the "Distributor"), Janus Services LLC ("Janus Services"),
each a Delaware limited liability company, and_____________ (the "Service
Provider"), a ____________________ corporation.
RECITALS
A. The Distributor serves as the distributor to the open-end management
investment companies listed on Exhibit A hereto (the "Trusts"), each of which is
or will be registered under the Investment Company Act of 1940 (the "1940 Act").
X. Xxxxx Services is the registered transfer agent of the Trusts.
C. The share classes listed on Exhibit A hereto ("Shares") of the
series of the Trusts (each a "Fund") are or will be registered with the
Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as
amended (the "Securities Act") and offered to the public through prospectuses
(each, a "Prospectus") and statements of additional information (each, an
"SAI").
D. The Distributor desires Service Provider and Service Provider agrees
to provide distribution assistance pertaining to the Funds and/or recordkeeping
and other administrative services to its customers who purchase Shares.
X. Xxxxx Services desires to appoint Service Provider and Service
Provider desires to serve, as Janus Services' agent for the limited purposes of
accepting orders for the purchase and redemption of Shares of the Funds by the
Service Provider and providing shareholder servicing pertaining to the Funds on
behalf of Service Provider's customers investing in Shares.
F. Pursuant to Rule 12b-1 under the 1940 Act, the Trusts on behalf of
each Fund has adopted a Distribution and Shareholder Servicing Plan (the "12b-1
Plan") for each class of those Shares which, among other things, authorizes the
Distributor to compensate financial intermediaries such as the Service Provider
out of each Fund's average daily net assets attributable to such Shares.
G. Certain of the Funds pay Janus Services an administration fee for
providing or procuring recordkeeping, sub accounting and other administrative
services to investors in Shares of certain classes, and Janus Services may
compensate intermediaries such as the Service Provider for providing these
services to its customers who purchase such Shares.
X. Xxxxx Services and the Service Provider are members in good standing
of the National Securities Clearing Corporation (the "NSCC") and have access to
the NSCC's Defined Contribution Clearance and Settlement system ("DCC&S") and/or
Fund/SERV system ("Fund/SERV") (collectively, the "NSCC Systems").
I. The Service Provider has executed the NSCC Fund/SERV Agreement and
related Addendum (or similar mutually acceptable agreement) (together, the "NSCC
Agreement") with Janus Services or its affiliate, and Service Provider intends
to place trades for Shares via the NSCC Systems.
AGREEMENT
1. Services of Service Provider.
(a) Services that Service Provider may provide include the
following:
(i) assisting the Distributor in marketing Shares of
the Funds to Service Provider's prospective and existing customers
("Customers").
(ii) providing facilities to answer questions from
Customers about the Funds; receiving and answering correspondence;
assisting Customers in changing dividend and other account options; and
any other activities as the Distributor may reasonably request to the
extent permitted under applicable laws or regulations or the National
Association of Securities Dealers, Inc. ("NASD") Rules of Conduct,
including but not limited to the services set forth on Exhibit B of
this Agreement.
(b) Service Provider will provide such office space and
equipment, telephone facilities, and personnel as may be reasonably necessary or
beneficial in order to provide such services to Customers.
(c) All orders for Shares are subject to acceptance or
rejection by the Trusts in their sole discretion and the Trusts may, in their
discretion and without notice, suspend or withdraw the sale of Shares of any
Fund, including the sale of such Shares to the Service Provider for the account
of any Customers.
(d) Service Provider shall not make the Shares available to
Customers except in compliance with federal and state securities law and subject
to the terms of the Prospectus for the Shares. Service Provider shall be
responsible for delivering the Prospectus, SAI, shareholder reports, proxy
materials and similar materials for the Shares to Customers in accordance with
and within the time frames required by applicable law.
(e) Orders for the purchase of Fund Shares shall be executed
at the then-current public offering price per Shares (i.e., the net asset value
("NAV") per Share plus any applicable sales charge) and all orders for the
redemption of any Fund Shares shall be executed at the NAV per Share less any
applicable contingent deferred sales charge or redemption fee.
2
(f) The Service Provider will furnish to the Distributor, the
Trusts or their designees such information as the Distributor may reasonably
request, and will otherwise cooperate with the Distributor in the preparation of
reports to the Trusts' Boards of Trustees concerning this Agreement, as well as
any other reports or filings that may be required by law.
2. Order Processing.
(a) Service Provider 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. Service Provider will not act in a
principal capacity or as a principal underwriter to the Funds as defined in the
1940 Act.
(b) Orders will generally be processed pursuant to the NSCC
Agreement. Janus Services will accept trades not submitted via the NSCC Systems
on an exception-only basis in accordance with the following terms:
On any business day ("Day One"), the Service Provider may
accept orders from Customers for the purchase and redemption of Shares
of the Funds. The Service Provider will send such orders to Janus
Services prior to 9:00 a.m. Eastern Time of the next business day ("Day
Two") pursuant to the Trading Requirements listed on Exhibit C. The
Funds will execute orders at the net asset values as determined as of
the close of trading on Day One, and dividends, if applicable, shall
begin to accrue on Day Two, provided that:
(i) Service Provider received such orders prior to
the time the NAVs of the Shares of the Funds were calculated on Day
One, and
(ii) Such orders and payment for such orders were
received by Janus Services prior to the times set forth in Exhibit C.
If either of the above conditions is not met, the orders will
be executed at the public offering price next in effect after such
orders are received, and dividends, if applicable, will begin to accrue
the day after settlement.
(c) Payment for net purchases and redemptions will be wired
pursuant to the NSCC Agreement, or pursuant to the Settlement Requirements
outlined in Exhibit C for trades not submitted via the NSCC Systems. In the
event of extraordinary market conditions affecting any such redemption, however,
Janus Services may delay such redemption for up to five business days, or longer
to the extent permitted under Section 22(e) of the 1940 Act.
(d) Janus Services will provide to the Service Provider
closing NAVs, dividends, and capital gains information at the close of trading
each business day. Dividends and capital gains distributions shall be reinvested
in accordance with the terms of the Prospectus.
(e) Notwithstanding any agreement between the parties to the
contrary, Janus Services will accept Customer-level accounts provided that all
trades are processed through the
3
NSCC Systems. Service Provider's failure to use the NSCC Systems for all
processing for and maintenance of Customer-level accounts may result in Janus
Services permitting only one omnibus account in the Service Provider's name.
Service Provider shall open each new account by submitting an application to
Janus Services prior to placing any order for or funding any such account. The
form of such application shall be provided to Service Provider by Janus
Services.
(f) All orders accepted by Service Provider shall be subject
to the terms of the then-current Prospectus of each Fund, including without
limitation, policies regarding minimum initial investments, market timing,
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 Trusts' stated policies may be subsequently revoked or
cancelled by Janus Services and that Janus Services shall not be responsible for
any losses incurred by Service Provider or any Customer as a result of such
cancellation. Janus Services or its agent shall notify Service Provider of any
such cancellation prior to 12:00 p.m. Eastern Time on Day Two.
(g) Service Provider acknowledges that Janus Services has the
right to refuse any purchase order for any reason, particularly if the Trusts
determine that a Fund would be unable to invest the money effectively in
accordance with its investment policies or would otherwise be adversely affected
due to the size of the transaction, frequency of trading by the account or other
factors.
(h) Service Provider 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
Distributor's part; and (ii) will immediately pay such loss to the Fund upon
notification.
(i) With respect to net asset value information, Janus
Services shall make the determination as to whether an error in the net asset
value 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 Trusts, such as Acts of God, fires, electrical or phone outages,
be considered pricing errors and neither Janus Services nor the Trusts 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
shareholders in the Funds.
3. Late Trading. Service Provider certifies that it is 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:
4
(a) permit Janus Services, 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 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
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.
4. Compensation.
(a) In return for providing the services set forth in this
Agreement, Service Provider shall be entitled to receive an on-going 12b-1 fee
and administration fee, each in an amount calculated and paid as set forth in
Exhibit A, Sections 1 and 2. The Distributor's obligation to pay such 12b-1 fee
is limited solely to the proceeds of the 12b-1 fees received from the Trusts.
(b) Distributor will calculate the fees payable pursuant to
Exhibit A, Section 1 of this Agreement at the end of each month and will make
such payment to the Service Provider.
(c) Janus Services will calculate the fees payable pursuant to
Exhibit A, Section 2 of this Agreement, at the end of each month and will make
such payment to the Service Provider.
(d) Each payment will be accompanied by a statement showing
the calculation of the amounts payable by Distributor and such other supporting
data as may be reasonably requested by the Service Provider. Payments to Service
Provider for periods 180 days or more prior to the current month shall be at
Distributor's discretion. The fees due under this Agreement shall not apply to
Fund Shares held by any Customer prior to the date of this Agreement.
(e) If Service Provider utilizes a third party who has an
agreement with Janus Services and/or Distributor to provide some or all of the
services set forth in this Agreement and Service Provider wishes Janus Services
and/or Distributor to directly pay such third party for such services, the total
payment due to the Service Provider or the third party from Janus Services
and/or Distributor for such services provided by such third party on behalf of
the Service Provider shall not exceed the fees set forth pursuant to this
Agreement. Service Provider acknowledges that when placing trades through third
parties with which Janus Services and/or Distributor has agreements to provide
some or all of the services set forth in this Agreement, Janus Services and/or
Distributor will process reimbursements 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 of reimbursement amounts, Janus
Services and/or Distributor shall pay such third parties directly and shall not
be responsible for payment of disputed balances
5
to Service Provider. In no event shall Janus Services and/or Distributor make
partial payments of fees to both the Service Provider and any such third party.
(f) The provisions of any Rule 12b-1 Plan and distribution
agreement between the Funds and the Distributor shall control over this
Agreement in the event of any inconsistency. Any Rule 12b-1 Plan in effect on
the date of this Agreement is described in the relevant Fund's Prospectus and/or
SAI. Service Provider hereby acknowledges that all payments under any Rule 12b-1
Plan are subject to limitations contained in such Rule 12b-1 Plan and
distribution agreement and may be varied or discontinued at any time.
(g) 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 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 forthwith refund to
Distributor the full compensation, if any, paid to Service Provider on the
original sale. Service Provider agrees to notify 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.
(h) Service Provider agrees that fees received under this
Agreement do not entitle the Funds to any preferred status as compared to other
mutual funds offered on Service Provider's platform.
5. Indemnification. The Service Provider shall indemnify Distributor,
Janus Services, the Trusts and their affiliates, directors, trustees, employees
and shareholders for any loss (including without limitation, litigation costs
and expenses and attorneys' and experts' fees) directly resulting from Service
Provider's negligent or willful act, omission or error, or Service Provider's
breach of this Agreement. Such indemnification shall survive termination of the
Agreement.
6. Approval of Informational Materials.
(a) No person is authorized to make any representations
concerning the Trusts, the Funds, the Shares, or Distributor except those
representations contained in the then-current Prospectuses and SAIs for the
Shares and in such printed information as Distributor or the Trusts may
subsequently prepare. Service Provider shall send all filings with state and
federal agencies and marketing materials in which the Trusts or the Funds are
named to Distributor for review at least fifteen business days prior to its
filing or general release. No such materials shall be used if Distributor
reasonably objects to such use.
(b) If Service Provider elects to include any materials
provided by Distributor, specifically Prospectuses, SAIs, shareholder reports or
proxy materials, on its website or in any other computer or electronic format,
Service Provider assumes sole responsibility for maintaining such materials in
the form provided by Distributor and for promptly replacing such materials with
all updates provided by Distributor.
6
7. Maintenance of Records.
(a) Service Provider shall maintain and preserve all records
as required by law to be maintained and preserved in connection with providing
the services herein. Upon the reasonable request of Distributor or the Trusts,
Service Provider shall provide Distributor, the Trusts or the representative of
either, copies of all such records.
(b) Service Provider shall maintain and transmit to
Distributor information on sales, redemptions and exchanges of Shares of each
Fund by state or jurisdiction of residence of individual Customers and any other
information requested by Distributor to enable Distributor or its affiliates to
properly register or report the sale of the Shares under the securities,
licensing or qualification laws of the various states and jurisdictions. Such
information shall be provided in a form mutually agreeable to Distributor and
Service Provider.
8. Operations of the Funds. Nothing in this Agreement shall in any way
limit the authority of the Trusts or Distributor to take such lawful action as
either may deem appropriate or advisable in connection with all matters relating
to the operation of the Funds and the sale of the Shares. The parties
acknowledge that nothing in this Agreement shall in any way preclude or prevent
the Trusts' Boards of Trustees from taking any actions deemed necessary by such
Trustees in furtherance of their fiduciary duties to the Trusts 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.
9. Proprietary Rights. Janus Capital International Holding ("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 Trusts, Distributor, Janus Holding, or their affiliates, or any products or
services sponsored, managed, advised, or administered by the Trusts,
Distributor, Janus Holding or their affiliates, except those contained in the
then-current Prospectus and the then-current printed sales literature for the
Shares of the Funds. The Service Provider will make no use of the name or xxxx
"Xxxxx" except as expressly provided in this Agreement or expressly authorized
by Janus Holding in writing. All goodwill associated with the name and xxxx
"Xxxxx" shall inure to the benefit of Janus Holding or its affiliate. Upon
termination of this Agreement for any reason, the Service Provider shall
immediately cease any and all use of any Xxxxx xxxx(s).
10. 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.
7
11. Representations, Warranties and Agreements. The Service Provider
represents, warrants, and covenants that:
(a) The Service Provider will comply in all material respects
with all applicable laws, rules and regulations;
(b) The Service Provider is authorized to enter into this
Agreement;
(c) The Service Provider is registered with the SEC as a
broker and dealer pursuant to the Securities Exchange Act of 1934 (the "Exchange
Act"), is a member in good standing of the NASD and is qualified to conduct
business under the laws of any applicable state in which the Shares may be sold,
or is not required to be so registered in order to enter into and perform the
services set forth in this Agreement;
(d) The performance of the duties and obligations and
provision of services by Service Provider as described in this Agreement and the
receipt of the fee provided in this Agreement will not violate federal or state
banking law, the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), the Internal Revenue Code of 1986, as amended (the "Code"), federal
or state securities laws, or any other applicable law;
(e) The fee arrangement under this Agreement will be disclosed
to each Customer prior to the Service Provider's receipt of fees hereunder;
(f) [SELECT ALTERNATIVE A OR B] A. [Neither Service Provider,
nor any affiliate, will be a "fiduciary" of the Customers as such term is
defined in Section 3(21) of ERISA and Section 4975 of the Code.] B. [Service
Provider will reduce the fees it charges to the Customers by an amount equal to
the fees paid pursuant to this Agreement.] The receipt of the fees described in
this Agreement by the Service Provider will not constitute a non-exempt
"prohibited transaction," as such term is defined in Section 406 of ERISA and
Section 4975 of the Code;
(g) If Service Provider intends to offer Shares to its
Customers as part of a fee-based account program, such program will comply with
any law, rule or regulation applicable to it including, but not limited to, the
safe harbor provisions of Rule 3a-4 under the 1940 Act;
(h) Each transaction shall be for the accounts of Customers
and not for Service Provider's own account;
(i) Any information Service Provider provides to Customers
concerning the Funds will be based on information contained in the Prospectus or
SAI for the Funds, or on promotion materials or sales literature that the
Distributor furnishes to the public;
(j) Service Provider will distribute Fund Prospectuses, SAIs,
proxy materials and other shareholder communications to Customers in accordance
with applicable regulatory requirements, except to the extent the Distributor
expressly undertakes in writing to do so;
8
(k) Service Provider will not effect any transactions
(including, without limitation, any purchases, exchanges and redemptions) in any
Fund Shares, registered in the name of, or beneficially owned by, any Customer,
unless to Service Provider's knowledge, such Customer has granted to Service
Provider full right, power and authority to effect such transactions on such
Customer's behalf;
(l) Service Provider will obtain from each Customer for whom
it acts as agent for the purchase of Fund Shares any taxpayer identification
number certification and such other information as may be required from time to
time under the Code, and the regulations thereunder, and will provide
Distributor or its designee with timely written notice of any failure to obtain
such taxpayer identification number certification or other information in order
to enable implementation of any required withholding; and
(m) Service Provider is in compliance with all applicable
anti-money laundering laws, rules and regulations including, but not limited to,
the U.S.A. PATRIOT Act of 2001, P.L. 107-56.
12. Confidentiality of Customer Information. The names, addresses and
other information concerning Customers are and shall remain the sole property of
Service Provider. Neither the Distributor, Janus Services, their affiliates, nor
their officers, directors, employees or agents, or any control person of the
foregoing persons, shall use such names, addresses or other information for any
purpose except in connection with the performance of the Distributor's and Janus
Services' duties and responsibilities hereunder and except for shareholder
servicing and informational mailings relating to the Funds. Notwithstanding the
foregoing, this Section 12 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 12
shall survive termination of this Agreement.
13. Termination.
(a) Unless sooner terminated with respect to any Fund, this
Agreement will continue with respect to a Fund only if the continuance of a form
of this Agreement is specifically approved at least annually by the vote of a
majority of the members of the Board of Trustees of the applicable Trust,
including a majority of the members of such Board of Trustees who are not
"interested persons" (as such term is defined in the 0000 Xxx) and who have no
direct or indirect financial interest in the 12b-1 Plan relating to such Fund or
any agreement relating to such 12b-1 Plan, including this Agreement, cast in
person at a meeting called for the purpose of voting on such approval.
(b) This Agreement will automatically terminate with respect
to a Fund in the event of its assignment (as such term is defined in the 0000
Xxx) with respect to such Fund. This Agreement may be terminated with respect to
any Fund by the Distributor or by the Service Provider, without penalty, upon 60
days' prior written notice to the other party, with a copy to Janus Services.
This Agreement may also be terminated with respect to any Fund at any time
9
without penalty by the vote of a majority of the members of the Boards of
Trustees of the Trusts who are not "interested persons" (as such term is defined
in the 0000 Xxx) and who have no direct or indirect financial interest in the
12b-1 Plan relating to such Fund or any agreement relating to such Plan,
including this Agreement, or by a vote of a majority of the Shares of such Fund
on 60 days' written notice.
(c) In addition, any party may terminate this Agreement
immediately if at any time it is determined by any federal or state regulatory
authority that compensation to be paid under this Agreement is in violation of
or inconsistent with any federal or state law.
14. Miscellaneous.
(a) No modification of any provision of this Agreement will be
binding unless in writing and executed by the parties. No waiver of any
provision of this Agreement will be binding unless in writing and executed by
the party granting such waiver.
(b) This Agreement shall be binding upon and shall inure to
the benefit of the parties and their respective successors and assigns;
provided, however that neither this Agreement nor any rights, privileges,
duties, or obligations of the parties may be assigned by either party without
the written consent of the other party or as expressly contemplated by this
Agreement.
(c) This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Colorado, exclusive of conflicts of
laws.
(d) This Agreement may be executed in several counterparts,
each of which shall be an original but all of which together shall constitute
one and the same instrument.
10
(e) All notices and other communications to Service Provider,
Janus Services or Distributor will be duly given if mailed or faxed to the
address set forth below, or to such other address as any party may provide in
writing to the other parties.
If to Distributor: If to Janus Services:
Janus Distributors LLC Janus Services LLC
000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000 Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel Attn: General Counsel
If to the Service Provider:
___________________________
___________________________
___________________________
___________________________
JANUS DISTRIBUTORS LLC ________________________________
(Name of Service Provider)
By:___________________________________ By:_____________________________
Name:_________________________________ Name:___________________________
Title:________________________________ Title:__________________________
JANUS SERVICES LLC
By:___________________________________
Name:_________________________________
Title:________________________________
11
EXHIBIT A
TO DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
Trusts and funds available under this Agreement*
Janus Adviser Series --
Janus Adviser --
Any series of the Trusts open to new investors ("Funds")
SECTION 1
12b-1 Fee Factor per Annum paid by the Distributor
Share Class Fee Factor per Annum
----------- --------------------
Class I 0.25%
Class R*** 0.50%**
SECTION 2
Administration Fee Factor per Annum paid by Janus Services
Share Class Fee Factor per Annum
----------- --------------------
Class I 0.25%
Class R*** 0.25%
The average aggregate amount invested each month in the Shares of each
Fund by Customers is multiplied by a pro-rata fee factor. The pro rata fee
factor is calculated by: (a) dividing the per annum factor set forth above for
the Shares of each Fund by the number of days in the applicable year, and (b)
multiplying the result by the actual number of days in the applicable month. The
average aggregate amount invested over a one-month period shall be computed by
totaling the aggregate investment by Customers who receive services hereunder
from the Service Provider (Share NAV multiplied by total number of Shares held)
on each calendar day during the month and dividing by the total number of
calendar days during such month.
----------------
*Certain Funds may become closed to new investors after the date of this
Agreement. If a certain Fund closes, such Fund may no longer be available for
purchase or may be purchased only under certain restrictions as determined by
that Fund and set forth in the Funds' then-current Prospectus.
** 0.25% for the Janus Money Market Fund
*** Class R Shares are not available for all Funds; Janus Adviser and the Money
Market Funds are available for all other Funds
12
EXHIBIT B
TO DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
Service Provider shall, at Service Provider's expense, provide the following
services for Customers:
Receive, aggregate, and process Customer orders;
Issue confirmations for transactions by Customers;
Maintain records for Customers, which records shall reflect Shares
purchased and redeemed, including the date and price for all
transactions, and Share balances;
Disburse or credit to Customers, and maintain records of, all proceeds
of redemptions of Shares and all other distributions not reinvested in
Shares; and
Prepare and transmit to Customers periodic account statements showing
the total number of Shares owned by the Customers as of the statement
closing date, purchases and redemptions of Shares by the Customers
during the period covered by the statement, and the dividends and other
distributions paid to the Customers during the statement period
(whether paid in cash or reinvested in Shares).
Other (specify)________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
13
EXHIBIT C
TO DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
NON-NSCC TRADING AND SETTLEMENT REQUIREMENTS
1. TRADING REQUIREMENTS
A. All trades must be netted (i.e., one purchase or redemption per
Fund, per account). For example: a purchase for $2,000 and a redemption for $500
should be netted into one purchase for $1,500.
B. All trades must be submitted in dollars. No Share trades will be
accepted.
C. No exchanges will be accepted, sell/buys must be requested.
D. Electronic or typed trade requests must be received by Janus
Services prior to 9:00 a.m. EST.
E. All trades will be processed at the public offering price.
2. SETTLEMENT REQUIREMENTS
A. Service Provider will send Janus Services one combined purchase wire
for all purchase orders by 2:00 p.m. EST on Day Two.
X. Xxxxx Services will send one combined wire for all redemption
proceeds by 4:00 p.m. EST on Day Two.
14
DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
JANUS ADVISER SERIES
CLASS R SHARES
This Agreement is made as of ____________, by and between Janus
Distributors LLC (the "Distributor"), Janus Services LLC ("Janus Services"),
each a Delaware limited liability company, and ____________ (the "Service
Provider"), a ____________________ corporation.
RECITALS
A. The Distributor serves as the distributor to the open-end management
investment companies listed on Exhibit A hereto (the "Trust"), which is or will
be registered under the Investment Company Act of 1940 (the "1940 Act").
X. Xxxxx Services is the registered transfer agent of the Trust.
C. The share classes listed on Exhibit A hereto (the "Shares") of the
series of the Trust (each a "Fund") are or will be registered with the
Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as
amended (the "Securities Act") and offered to the public through prospectus (the
"Prospectus") and statement of additional information (the "SAI").
D. The Distributor desires Service Provider and Service Provider agrees
to provide distribution assistance pertaining to the Funds and/or recordkeeping
and other administrative services to its customers who purchase Shares.
X. Xxxxx Services desires to appoint Service Provider and Service
Provider desires to serve, as Janus Services' agent for the limited purposes of
accepting orders for the purchase and redemption of Shares of the Funds by the
Service Provider and providing shareholder servicing pertaining to the Funds on
behalf of Service Provider's customers investing in Shares.
F. Pursuant to Rule 12b-1 under the 1940 Act, the Trust on behalf of
each Fund has adopted a Distribution and Shareholder Servicing Plan (the "12b-1
Plan") for each class of those Shares which, among other things, authorizes the
Distributor to compensate financial intermediaries such as the Service Provider
out of each Fund's average daily net assets attributable to such Shares.
G. Certain of the Funds pay Janus Services an administration fee for
providing or procuring recordkeeping, sub accounting and other administrative
services to investors in Shares of certain classes, and Janus Services may
compensate intermediaries such as the Service Provider for providing these
services to its customers who purchase such Shares.
X. Xxxxx Services and the Service Provider are members in good standing
of the National Securities Clearing Corporation (the "NSCC") and have access to
the NSCC's Defined Contribution Clearance and Settlement system ("DCC&S") and/or
Fund/SERV system ("Fund/SERV") (collectively, the "NSCC Systems").
I. The Service Provider has executed the NSCC Fund/SERV Agreement and
related Addendum (or similar mutually acceptable agreement) (together, the "NSCC
Agreement") with Janus Services or its affiliate, and Service Provider intends
to place trades for Shares via the NSCC Systems.
AGREEMENT
1. Services of Service Provider.
(a) Services that Service Provider may provide include the
following:
(i) assisting the Distributor in marketing Shares of
the Funds to Service Provider's prospective and existing customers
("Customers").
(ii) providing facilities to answer questions from
Customers about the Funds; receiving and answering correspondence;
assisting Customers in changing dividend and other account options; and
any other activities as the Distributor may reasonably request to the
extent permitted under applicable laws or regulations or the National
Association of Securities Dealers, Inc. ("NASD") Rules of Conduct,
including but not limited to the services set forth on Exhibit B of
this Agreement.
(b) Service Provider will provide such office space and
equipment, telephone facilities, and personnel as may be reasonably necessary or
beneficial in order to provide such services to Customers.
(c) All orders for Shares are subject to acceptance or
rejection by the Trust in its sole discretion and the Trust may, in its
discretion and without notice, suspend or withdraw the sale of Shares of any
Fund, including the sale of such Shares to the Service Provider for the account
of any Customers.
(d) Service Provider shall not make the Shares available to
Customers except in compliance with federal and state securities law and subject
to the terms of the Prospectus for the Shares. Service Provider shall be
responsible for delivering the Prospectus, SAI, shareholder reports, proxy
materials and similar materials for the Shares to Customers in accordance with
and within the time frames required by applicable law.
(e) Orders for the purchase of Fund Shares shall be executed
at the then-current public offering price per Shares (i.e., the net asset value
("NAV") per Share plus any applicable sales charge) and all orders for the
redemption of any Fund Shares shall be executed at the NAV per Share less any
applicable contingent deferred sales charge or redemption fee.
2
(f) The Service Provider will furnish to the Distributor, the
Trust or their designees such information as the Distributor may reasonably
request, and will otherwise cooperate with the Distributor in the preparation of
reports to the Trust's Board of Trustees concerning this Agreement, as well as
any other reports or filings that may be required by law.
2. Order Processing.
(a) Service Provider 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. Service Provider will not act in a
principal capacity or as a principal underwriter to the Funds as defined in the
1940 Act.
(b) Orders will generally be processed pursuant to the NSCC
Agreement. Janus Services will accept trades not submitted via the NSCC Systems
on an exception-only basis in accordance with the following terms:
On any business day ("Day One"), the Service Provider may
accept orders from Customers for the purchase and redemption of Shares
of the Funds. The Service Provider will send such orders to Janus
Services prior to 9:00 a.m. Eastern Time of the next business day ("Day
Two") pursuant to the Trading Requirements listed on Exhibit C. The
Funds will execute orders at the net asset values as determined as of
the close of trading on Day One, and dividends, if applicable, shall
begin to accrue on Day Two, provided that:
(i) Service Provider received such orders prior to
the time the NAVs of the Shares of the Funds were calculated on Day
One, and
(ii) Such orders and payment for such orders were
received by Janus Services prior to the times set forth in Exhibit C.
If either of the above conditions is not met, the orders will
be executed at the public offering price next in effect after such
orders are received, and dividends, if applicable, will begin to accrue
the day after settlement.
(c) Payment for net purchases and redemptions will be wired
pursuant to the NSCC Agreement, or pursuant to the Settlement Requirements
outlined in Exhibit C for trades not submitted via the NSCC Systems. In the
event of extraordinary market conditions affecting any such redemption, however,
Janus Services may delay such redemption for up to five business days, or longer
to the extent permitted under Section 22(e) of the 1940 Act.
(d) Janus Services will provide to the Service Provider
closing NAVs, dividends, and capital gains information at the close of trading
each business day. Dividends and capital gains distributions shall be reinvested
in accordance with the terms of the Prospectus.
(e) Notwithstanding any agreement between the parties to the
contrary, Janus Services will accept Customer-level accounts provided that all
trades are processed through the
3
NSCC Systems. Service Provider's failure to use the NSCC Systems for all
processing for and maintenance of Customer-level accounts may result in Janus
Services permitting only one omnibus account in the Service Provider's name.
Service Provider shall open each new account by submitting an application to
Janus Services prior to placing any order for or funding any such account. The
form of such application shall be provided to Service Provider by Janus
Services.
(f) Service Provider will collect all applicable contingent
deferred sales charges in accordance with the terms of the then-current
Prospectus and will forward all such contingent deferred sales charges to Janus
Distributors on a monthly basis or Service Provider will establish all accounts
in such a manner so as to enable Janus Distributors to waive contingent deferred
sales charges to such accounts in accordance with the terms of the then-current
Prospectus, including without limitation, dividends and cash distributions. In
addition, Service Provider and Distributor mutually agree to waive all
contingent deferred sales charges for participant-directed retirement plans.
(g) 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 Janus Services shall not be responsible for
any losses incurred by Service Provider or any Customer as a result of such
cancellation. Janus Services or its agent shall notify Service Provider of any
such cancellation prior to 12:00 p.m. Eastern Time on Day Two.
(h) Service Provider acknowledges that Janus Services has the
right to refuse any purchase order for any reason, particularly if the Trust
determines that a Fund would be unable to invest the money effectively in
accordance with its investment policies or would otherwise be adversely affected
due to the size of the transaction, frequency of trading by the account or other
factors.
(i) 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
Distributor's part; and (ii) will immediately pay such loss to the Fund upon
notification.
(j) With respect to net asset value information, Janus
Services shall make the determination as to whether an error in the net asset
value 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
4
the same standards with respect to share prices for the Service Provider as for
all other shareholders in the Funds.
3. Late Trading. Service Provider certifies that it is 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, 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 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
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.
4. Compensation.
(a) In return for providing the services set forth in this
Agreement, Service Provider shall be entitled to receive an on-going 12b-1 fee
and administration fee, each in an amount calculated and paid as set forth in
Exhibit A, Sections 1 and 2. The Distributor's obligation to pay such 12b-1 fee
is limited solely to the proceeds of the 12b-1 fees received from the Trust.
(b) Distributor will calculate the fees payable pursuant to
Exhibit A, Section 1 of this Agreement at the end of each month and will make
such payment to the Service Provider.
(c) Janus Services will calculate the fees payable pursuant to
Exhibit A, Section 2 of this Agreement, at the end of each month and will make
such payment to the Service Provider.
(d) Each payment will be accompanied by a statement showing
the calculation of the amounts payable by Distributor and such other supporting
data as may be reasonably requested by the Service Provider. Payments to Service
Provider for periods 180 days or more prior to the current month shall be at
Distributor's discretion. The fees due under this Agreement shall not apply to
Fund Shares held by any Customer prior to the date of this Agreement.
(e) If Service Provider utilizes a third party who has an
agreement with Janus Services and/or Distributor to provide some or all of the
services set forth in this Agreement and Service Provider wishes Janus Services
and/or Distributor to directly pay such third party for such services, the total
payment due to the Service Provider or the third party from Janus Services
and/or Distributor for such services provided by such third party on behalf of
the
5
Service Provider shall not exceed the fees set forth pursuant to this Agreement.
Service Provider acknowledges that when placing trades through third parties
with which Janus Services and/or Distributor has agreements to provide some or
all of the services set forth in this Agreement, Janus Services and/or
Distributor will process reimbursements 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 of reimbursement amounts, Janus
Services and/or Distributor shall pay such third parties directly and shall not
be responsible for payment of disputed balances to Service Provider. In no event
shall Janus Services and/or Distributor make partial payments of fees to both
the Service Provider and any such third party.
(f) The provisions of any Rule 12b-1 Plan and distribution
agreement between the Funds and the Distributor shall control over this
Agreement in the event of any inconsistency. Any Rule 12b-1 Plan in effect on
the date of this Agreement is described in the relevant Fund's Prospectus and/or
SAI. Service Provider hereby acknowledges that all payments under any Rule 12b-1
Plan are subject to limitations contained in such Rule 12b-1 Plan and
distribution agreement and may be varied or discontinued at any time.
(g) 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 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 forthwith refund to
Distributor the full compensation, if any, paid to Service Provider on the
original sale. Service Provider agrees to notify 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.
(h) Service Provider agrees that fees received under this
Agreement do not entitle the Funds to any preferred status as compared to other
mutual funds offered on Service Provider's platform.
5. Indemnification. The Service Provider shall indemnify Distributor,
Janus Services, the Trust and their affiliates, directors, trustees, employees
and shareholders for any loss (including without limitation, litigation costs
and expenses and attorneys' and experts' fees) directly resulting from Service
Provider's negligent or willful act, omission or error, or Service Provider's
breach of this Agreement. Such indemnification shall survive termination of the
Agreement.
6. Approval of Informational Materials.
(a) No person is authorized to make any representations
concerning the Trust, the Funds, the Shares, or Distributor except those
representations contained in the then-current Prospectuses and SAIs for the
Shares and in such printed information as Distributor or the Trust may
subsequently prepare. Service Provider shall send all filings with state and
federal agencies and marketing materials in which the Trust or the Funds are
named to Distributor for review at least fifteen business days prior to its
filing or general release. No such materials shall be used if Distributor
reasonably objects to such use.
6
(b) If Service Provider elects to include any materials
provided by Distributor, specifically Prospectuses, SAIs, shareholder reports or
proxy materials, on its website or in any other computer or electronic format,
Service Provider assumes sole responsibility for maintaining such materials in
the form provided by Distributor and for promptly replacing such materials with
all updates provided by Distributor.
7. Maintenance of Records.
(a) Service Provider shall maintain and preserve all records
as required by law to be maintained and preserved in connection with providing
the services herein. Upon the reasonable request of Distributor or the Trust,
Service Provider shall provide Distributor, the Trust or the representative of
either, copies of all such records.
(b) Service Provider shall maintain and transmit to
Distributor information on sales, redemptions and exchanges of Shares of each
Fund by state or jurisdiction of residence of individual Customers and any other
information requested by Distributor to enable Distributor or its affiliates to
properly register or report the sale of the Shares under the securities,
licensing or qualification laws of the various states and jurisdictions. Such
information shall be provided in a form mutually agreeable to Distributor and
Service Provider.
8. Operations of the Funds. Nothing in this Agreement shall in any way
limit the authority of the Trust or Distributor to take such lawful action as
either may deem appropriate or advisable in connection with all matters relating
to the operation of the Funds and the sale of the Shares. The parties
acknowledge that nothing in this Agreement shall in any way preclude or prevent
the Trust's Board of Trustees from taking any actions deemed necessary by such
Trustees in furtherance of their fiduciary duties to the Trust and its
shareholders, which, among other things, may include the refusal to sell Shares
of any Fund to any person, or to suspend or terminate the offering of the Shares
of any Fund, if such action is required by law or by regulatory authorities
having jurisdiction or is, in the sole discretion of the Trustees, acting in
good faith and in light of the Trustees' fiduciary duties under applicable law,
necessary in the best interests of the shareholders of any Fund.
9. Proprietary Rights. Janus Capital International Holding ("Janus
Holding") or its affiliate is the sole owner of the name and xxxx "Xxxxx." All
references contained in this Agreement to "the name or xxxx `Janus'" shall
include but not be limited to the Janus logo, the website xxx.xxxxx.xxx and any
and all electronic links relating to such website. Neither the Service Provider,
nor its affiliates, employees, or agents shall, without prior written consent of
Janus Holding, use the name or xxxx "Xxxxx" or make representations regarding
the Trust, Distributor, Janus Holding, or their affiliates, or any products or
services sponsored, managed, advised, or administered by the Trust, Distributor,
Janus Holding or their affiliates, except those contained in the then-current
Prospectus and the then-current printed sales literature for the Shares of the
Funds. The Service Provider will make no use of the name or xxxx "Xxxxx" except
as expressly provided in this Agreement or expressly authorized by Janus Holding
in writing. All goodwill associated with the name and xxxx "Xxxxx" shall inure
to the benefit of Janus
7
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).
10. 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.
11. Representations, Warranties and Agreements. The Service Provider
represents, warrants, and covenants that:
(a) The Service Provider will comply in all material respects
with all applicable laws, rules and regulations;
(b) The Service Provider is authorized to enter into this
Agreement;
(c) The Service Provider is registered with the SEC as a
broker and dealer pursuant to the Securities Exchange Act of 1934 (the "Exchange
Act"), is a member in good standing of the NASD and is qualified to conduct
business under the laws of any applicable state in which the Shares may be sold,
or is not required to be so registered in order to enter into and perform the
services set forth in this Agreement;
(d) The performance of the duties and obligations and
provision of services by Service Provider as described in this Agreement and the
receipt of the fee provided in this Agreement will not violate federal or state
banking law, the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), the Internal Revenue Code of 1986, as amended (the "Code"), federal
or state securities laws, or any other applicable law;
(e) The fee arrangement under this Agreement will be disclosed
to each Customer prior to the Service Provider's receipt of fees hereunder;
(f) [SELECT ALTERNATIVE A OR B] A. [Neither Service Provider,
nor any affiliate, will be a "fiduciary" of the Customers as such term is
defined in Section 3(21) of ERISA and Section 4975 of the Code.] B. [Service
Provider will reduce the fees it charges to the Customers by an amount equal to
the fees paid pursuant to this Agreement.] The receipt of the fees described in
this Agreement by the Service Provider will not constitute a non-exempt
"prohibited transaction," as such term is defined in Section 406 of ERISA and
Section 4975 of the Code;
(g) If Service Provider intends to offer Shares to its
Customers as part of a fee-based account program, such program will comply with
any law, rule or regulation applicable to it including, but not limited to, the
safe harbor provisions of Rule 3a-4 under the 1940 Act;
(h) Each transaction shall be for the accounts of Customers
and not for Service Provider's own account;
8
(i) Any information Service Provider provides to Customers
concerning the Funds will be based on information contained in the Prospectus or
SAI for the Funds, or on promotion materials or sales literature that the
Distributor furnishes to the public;
(j) Service Provider will distribute Fund Prospectuses, SAIs,
proxy materials and other shareholder communications to Customers in accordance
with applicable regulatory requirements, except to the extent the Distributor
expressly undertakes in writing to do so;
(k) Service Provider will not effect any transactions
(including, without limitation, any purchases, exchanges and redemptions) in any
Fund Shares, registered in the name of, or beneficially owned by, any Customer,
unless to Service Provider's knowledge, such Customer has granted to Service
Provider full right, power and authority to effect such transactions on such
Customer's behalf;
(l) Service Provider will obtain from each Customer for whom
it acts as agent for the purchase of Fund Shares any taxpayer identification
number certification and such other information as may be required from time to
time under the Code, and the regulations thereunder, and will provide
Distributor or its designee with timely written notice of any failure to obtain
such taxpayer identification number certification or other information in order
to enable implementation of any required withholding; and
(m) Service Provider is in compliance with all applicable
anti-money laundering laws, rules and regulations including, but not limited to,
the U.S.A. PATRIOT Act of 2001, P.L. 107-56.
12. Confidentiality of Customer Information. The names, addresses and
other information concerning Customers are and shall remain the sole property of
Service Provider. Neither the Distributor, Janus Services, their affiliates, nor
their officers, directors, employees or agents, or any control person of the
foregoing persons, shall use such names, addresses or other information for any
purpose except in connection with the performance of the Distributor's and Janus
Services' duties and responsibilities hereunder and except for shareholder
servicing and informational mailings relating to the Funds. Notwithstanding the
foregoing, this Section 12 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 12
shall survive termination of this Agreement.
13. Termination.
(a) Unless sooner terminated with respect to any Fund, this
Agreement will continue with respect to a Fund only if the continuance of a form
of this Agreement is specifically approved at least annually by the vote of a
majority of the members of the Board of Trustees, including a majority of the
members of such Board of Trustees 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,
9
including this Agreement, cast in person at a meeting called for the purpose of
voting on such approval.
(b) This Agreement will automatically terminate with respect
to a Fund in the event of its assignment (as such term is defined in the 0000
Xxx) with respect to such Fund. This Agreement may be terminated with respect to
any Fund by the Distributor or by the Service Provider, without penalty, upon 60
days' prior written notice to the other party, with a copy to Janus Services.
This Agreement may also be terminated with respect to any Fund at any time
without penalty by the vote of a majority of the members of the Board of
Trustees of the Trust who are not "interested persons" (as such term is defined
in the 0000 Xxx) and who have no direct or indirect financial interest in the
12b-1 Plan relating to such Fund or any agreement relating to such Plan,
including this Agreement, or by a vote of a majority of the Shares of such Fund
on 60 days' written notice.
(c) In addition, any party may terminate this Agreement
immediately if at any time it is determined by any federal or state regulatory
authority that compensation to be paid under this Agreement is in violation of
or inconsistent with any federal or state law.
14. Miscellaneous.
(a) No modification of any provision of this Agreement will be
binding unless in writing and executed by the parties. No waiver of any
provision of this Agreement will be binding unless in writing and executed by
the party granting such waiver.
(b) This Agreement shall be binding upon and shall inure to
the benefit of the parties and their respective successors and assigns;
provided, however that neither this Agreement nor any rights, privileges,
duties, or obligations of the parties may be assigned by either party without
the written consent of the other party or as expressly contemplated by this
Agreement.
(c) This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Colorado, exclusive of conflicts of
laws.
(d) This Agreement may be executed in several counterparts,
each of which shall be an original but all of which together shall constitute
one and the same instrument.
10
(e) All notices and other communications to Service Provider,
Janus Services or Distributor will be duly given if mailed or faxed to the
address set forth below, or to such other address as any party may provide in
writing to the other parties.
If to Distributor: If to Janus Services:
Janus Distributors LLC Janus Services LLC
000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000 Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel Attn: General Counsel
If to the Service Provider:
___________________________
___________________________
___________________________
___________________________
JANUS DISTRIBUTORS LLC __________________________________
(Name of Service Provider)
By:____________________________________ By:_______________________________
Name:__________________________________ Name:_____________________________
Title:_________________________________ Title:____________________________
JANUS SERVICES LLC
By:____________________________________
Name:__________________________________
Title:_________________________________
11
EXHIBIT A
TO DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
Trusts and funds available under this Agreement
Janus Adviser Series* --
SECTION 1
12b-1 Fee Factor per Annum paid by the Distributor
Share Class Fee Factor per Annum
----------- --------------------
Class R 0.50%
SECTION 2
Administration Fee Factor per Annum paid by Janus Services
Share Class Fee Factor per Annum
----------- --------------------
Class R 0.25%
The average aggregate amount invested each month in the Shares of each
Fund by Customers is multiplied by a pro-rata fee factor. The pro rata fee
factor is calculated by: (a) dividing the per annum factor set forth above for
the Shares of each Fund by the number of days in the applicable year, and (b)
multiplying the result by the actual number of days in the applicable month. The
average aggregate amount invested over a one-month period shall be computed by
totaling the aggregate investment by Customers who receive services hereunder
from the Service Provider (Share NAV multiplied by total number of Shares held)
on each calendar day during the month and dividing by the total number of
calendar days during such month.
----------------------
*Certain Funds may become closed to new investors after the date of this
Agreement. If a certain Fund closes, such Fund may no longer be available for
purchase or may be purchased only under certain restrictions as determined by
that Fund and set forth in the Funds' then-current Prospectus.
12
EXHIBIT B
TO DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
Service Provider shall, at Service Provider's expense, provide the following
services for Customers:
Receive, aggregate, and process Customer orders;
Issue confirmations for transactions by Customers;
Maintain records for Customers, which records shall reflect Shares
purchased and redeemed, including the date and price for all
transactions, and Share balances;
Disburse or credit to Customers, and maintain records of, all proceeds
of redemptions of Shares and all other distributions not reinvested in
Shares; and
Prepare and transmit to Customers periodic account statements showing
the total number of Shares owned by the Customers as of the statement
closing date, purchases and redemptions of Shares by the Customers
during the period covered by the statement, and the dividends and other
distributions paid to the Customers during the statement period
(whether paid in cash or reinvested in Shares).
Other (specify)________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
13
EXHIBIT C
TO DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
NON-NSCC TRADING AND SETTLEMENT REQUIREMENTS
1. TRADING REQUIREMENTS
A. All trades must be netted (i.e., one purchase or redemption per
Fund, per account). For example: a purchase for $2,000 and a redemption for $500
should be netted into one purchase for $1,500.
B. All trades must be submitted in dollars. No Share trades will be
accepted.
C. No exchanges will be accepted, sell/buys must be requested.
D. Electronic or typed trade requests must be received by Janus
Services prior to 9:00 a.m. EST.
E. All trades will be processed at the public offering price.
2. SETTLEMENT REQUIREMENTS
A. Service Provider will send Janus Services one combined purchase wire
for all purchase orders by 2:00 p.m. EST on Day Two.
X. Xxxxx Services will send one combined wire for all redemption
proceeds by 4:00 p.m. EST on Day Two.
14
