EXHIBIT 6
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (the "Agreement"), made as of the 1st day of
July, 1997, by and between Janus Investment Fund, a business trust organized and
existing under the laws of the Commonwealth of Massachusetts, (hereinafter
called "JIF"), and Janus Distributors, Inc., a corporation organized and
existing under the laws of the State of Colorado (hereinafter called the
"Distributor" or "JDI"). This Agreement applies separately to each portfolio of
JIF whether now existing or hereafter created.
WITNESSETH:
WHEREAS, JIF is engaged in business as an open-end management investment
company registered under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Distributor is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act") and the laws of
each state or jurisdiction in which the Distributor engages in business to the
extent such law requires, and is a member of the National Association of
Securities Dealers, Inc. (the "NASD") (such registrations and membership are
referred to collectively as the "Registrations"); and
WHEREAS, JIF desires the Distributor to act as the underwriter for the
public offering of the shares of beneficial interest (hereinafter called
"Shares") of each of JIF's portfolios whether now existing or hereafter created
(hereinafter each called a "Fund" and collectively the "Funds").
NOW, THEREFORE, in consideration of the premises and the mutual promises
hereinafter set forth, the parties hereto agree as follows:
1. Appointment. JIF appoints JDI to act as distributor of its Shares.
2. Delivery of Fund Documents. JIF has furnished the Distributor with
properly certified or authenticated copies of each of the following in effect on
the date hereof and shall furnish the Distributor from time to time properly
certified or authenticated copies of all amendments or supplements thereto:
(a) Agreement and Declaration of Trust;
(b) By-Laws; and
(c) Resolutions of the Board of Trustees (hereinafter referred to as the
"Trustees") selecting the Distributor as distributor and approving
this form of agreement and authorizing its execution.
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JIF shall furnish the Distributor promptly with copies of any registration
statements filed by it with the Securities and Exchange Commission (the "SEC")
under the Securities Act of 1933, as amended, (the "1933 Act") or the 1940 Act,
together with any financial statements and exhibits included therein, and all
amendments or supplements thereto hereafter filed.
JIF shall also furnish the Distributor with such other certificates or
documents as the Distributor may from time to time, in its discretion,
reasonably deem necessary or appropriate in order to properly perform its duties
under this Agreement.
3. Solicitation of Orders for Purchase of Shares.
(a) Subject to the provisions of Paragraphs 4 and 7 hereof, and to such
minimum purchase requirements as may from time to time be indicated in each
Fund's Prospectus or Statement of Additional Information, the Distributor is
authorized to solicit, as agent on behalf of JIF, unconditional orders for
purchases of each Fund's Shares authorized for issuance and registered under the
1933 Act, provided that:
(1) The Distributor shall act solely as a disclosed agent on behalf of and
for the account of JIF;
(2) The Distributor shall confirm or arrange with the transfer agent for
the Shares to confirm all purchases of the Shares. Such confirmation
shall conform to the requirements of Rule 10b-10 under the 1934 Act
and shall clearly state that the Distributor is acting as agent in the
transaction.
(3) The Distributor shall have no liability for payment for purchases of
Shares it sells as agent; and
(4) Each order to purchase Shares of a Fund received by the Distributor
shall be subject to acceptance by an officer of JIF and entry of the
order on such Fund's records or shareholder accounts and is not
binding until so accepted and entered.
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. JIF shall make
available to the Distributor without cost to the Distributor such number of
copies of each Fund's currently effective Prospectus and Statement of Additional
Information and copies of all information, financial statements and other papers
that the Distributor may reasonably request for use in connection with the
distribution of Shares.
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4. Solicitation of Orders to Purchase Shares by Fund. The rights granted
to the Distributor shall be non-exclusive in that JIF reserves the right to
otherwise solicit purchases from, and sell Shares to, investors, including
without limitation the right to issue Shares in connection with the merger or
consolidation of any other investment company, trust or personal holding company
with a Fund, or a Fund's acquisition, by the purchase or otherwise, of all or
substantially all of the assets of an investment company, trust or personal
holding company, or substantially all of the outstanding shares or interests of
any such entity.
5. Payment of Expenses. The Distributor will not be entitled to any
compensation with respect to its services. JIF 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 JIF under the 1940 Act and the sale of JIF'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 JIF or its business activities.
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. The public offering price for each accepted subscription for a
Fund's Shares will be the net asset value per share next determined by JIF after
it accepts such subscription. The net asset value per share of the Shares shall
be determined in the manner provided in JIF's Declaration of Trust as now in
effect or as it may be amended, and as reflected in the then current Prospectus
and Statement of Additional Information covering the Shares.
7. Suspension of Sales. If and whenever the determination of a Fund's net
asset value is suspended and until such suspension is terminated, no further
orders for Shares shall be accepted by JIF except such unconditional orders
placed with JIF and accepted by it before the suspension. In addition, JIF
reserves the right to suspend sales of Shares of a Fund if, in the judgement of
the Trustees, it is in the best interest of the Fund to do so, such suspension
to continue for such period as may be determined by the Trustees; and in that
event, (i) at the direction of JIF, the Distributor shall suspend its
solicitation of orders to purchase Shares of such Fund until otherwise
instructed by JIF, and (ii) no orders to purchase Shares of such Fund shall be
accepted by JIF while such suspension remains in effect unless otherwise
directed by its Trustees.
8. Authorized Representations. The Distributor is not authorized by JIF
to give on behalf of any Fund any information or to make any representations in
connection with the sale of Shares other than the information and
representations contained in such Fund's registration statement filed with the
SEC under the 1933 Act and/or the 1940 Act, covering Shares, as such
registration statement or such Fund's Prospectus or Statement of Additional
Information may be amended or
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supplemented from time to time, or contained in shareholder reports or other
material that may be prepared by or on behalf of such Fund or approved by such
Fund for the Distributor's use.
9. Registration of Additional Shares. JIF hereby agrees to register
either (i) an indefinite number of Shares pursuant to Rule 24f-2 under the 1940
Act, or (ii) a definite number of Shares as JIF shall deem advisable pursuant
to Rule 24e-2 under the 1940 Act. JIF will, in cooperation with the Distributor,
take such action as may be necessary from time to time to qualify the Shares of
each Fund (so registered or otherwise qualified for sale under the 1933 Act),
in any state or jurisdiction mutually agreeable to the Distributor and JIF, and
to maintain such qualification; provided, however, that nothing herein shall be
deemed to prevent JIF from registering the Shares without approval of the
Distributor in any state it deems appropriate.
10. Conformity With Law. The Distributor agrees that in soliciting orders
to purchase Shares it shall duly conform in all respects with applicable federal
and state laws and with the rules and regulations of 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 JIF in the event of the
suspension or termination of any of the Registrations.
11. Independent Contractor. The Distributor shall be an independent
contractor and neither the Distributor, nor any of its officers, directors,
employees, or representatives is or shall be an employee of JIF in the
performance of the Distributor's duties hereunder. The Distributor shall be
responsible for its own conduct and the employment, control, and conduct of its
agents and employees and for injury to such agents or employees or to others
through its agents and employees and agrees to pay or to insure that persons
other than JIF will pay all employee taxes due with respect to the activities of
its agents and employees.
12. Indemnification. The Distributor agrees to indemnify and hold harmless
JIF and each of the Trustees and its officers, employees and representatives and
each person, if any, who controls JIF within the meaning of Section 15 of the
1933 Act against any and all losses, liabilities, damages, claims and expenses
(including the reasonable costs of investigating or defending any alleged loss,
liability, damage, claim or expense and reasonable legal counsel fees incurred
in connection therewith) to which JIF or such Trustees, officers, employees,
representatives, or controlling person or persons may become subject under the
1933 Act, under any other statute, at common law, or otherwise, arising out of
the acquisition of any Shares of any Fund by any person which (i) may be based
upon any wrongful act by the Distributor or any of the Distributor's directors,
officers, employees or representatives, or (ii) may be based upon any untrue
statement or alleged untrue statement of a material fact contained in a
registration statement, Prospectus, Statement of Additional Information,
shareholder report or other information covering Shares of such Fund filed or
made public by JIF or any amendment thereof or supplement thereto or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, if
such statement or omission was made in reliance upon information furnished to
such Fund by the Distributor in writing. In no case (i) is the Distributor's
indemnity in favor of JIF, or any person indemnified, to be deemed to protect
JIF or such
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indemnified person against any liability to which JIF or such person would
otherwise be subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of its or such person's duties or by reason of its
or such person's reckless disregard of its or such person's obligations and
duties under this Agreement, or (ii) is the Distributor to be liable under its
indemnity agreement contained in this paragraph with respect to any claim made
against JIF or any person indemnified unless JIF or such person, as the case may
be, shall have notified the Distributor in writing of the claim within a
reasonable time after the summons, or other first written notification, giving
information of the nature of the claim served upon JIF or upon such person (or
after JIF or such person shall have received notice of such service on any
designated agent). However, failure to notify the Distributor of any such claim
shall not relieve the Distributor from any liability that the Distributor may
have to JIF or any person against whom such action is brought otherwise than on
account of the Distributor's indemnity agreement contained in this Paragraph.
The Distributor shall be entitled to participate, at its own expense, in
the defense, or, if Distributor so elects, to assume the defense of any suit
brought to enforce any such claim but, if the Distributor elects to assume the
defense, such defense shall be conducted by legal counsel chosen by the
Distributor and satisfactory to the persons indemnified who are defendants in
the suit. In the event that the Distributor elects to assume the defense of any
such suit and retain such legal counsel, persons indemnified who are defendants
in the suit shall bear the fees and expenses of any additional legal counsel
retained by them. If the Distributor does not elect to assume the defense of any
such suit, the Distributor will reimburse persons indemnified who are defendants
in such suit for the reasonable fees of any legal counsel retained by them in
such litigation.
JIF agrees to indemnify and hold harmless the Distributor and each of
its directors, officers, employees, and representatives and each person, if any,
who controls the Distributor within the meaning of Section 15 of the 1933 Act
against any and all losses, liabilities, damages, claims or expenses (including
the reasonable costs of investigating or defending any alleged loss, liability,
damage, claim or expenses and reasonable legal counsel fees incurred in
connection therewith) to which the Distributor or such of its directors,
officers, employees, representatives or controlling person or persons may become
subject under the 1933 Act, under any other statute, at common law, or otherwise
arising out of the acquisition of any Shares by any person which (i) may be
based upon any wrongful act by JIF or any of the Trustees, or JIF's officers,
employees or representatives other than the Distributor, or (ii) may be based
upon any untrue statement or alleged untrue statement of a material fact
contained in a registration statement, Prospectus, Statement of Additional
Information, shareholder report or other information covering Shares filed or
made public by JIF or any amendment thereof or supplement thereto, or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading unless
such statement or omission was made in reliance upon information furnished by
the Distributor to JIF. In no case (i) is JIF's indemnity in favor of the
Distributor or any person indemnified to be deemed to protect the Distributor or
such indemnified person against any liability to which the Distributor or such
indemnified person would otherwise be subject by reason of willful misfeasance,
bad faith, or gross negligence in the performance of its or such person's duties
or by reason of its or such person's reckless disregard of its or such person's
obligations and duties under
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this Agreement, or (ii) is JIF to be liable under its indemnity agreement
contained in this Paragraph with respect to any claim made against the
Distributor or any person indemnified unless the Distributor, or such person, as
the case may be, shall have notified JIF in writing of the claim within a
reasonable time after the summons, or other first written notification, giving
information of the nature of the claim served upon the Distributor or upon such
person (or after the Distributor or such person shall have received notice of
such service on any designated agent). However, failure to notify JIF of any
such claim shall not relieve JIF from any liability which JIF may have to the
Distributor or any person against whom such action is brought otherwise than on
account of JIF's indemnity agreement contained in this Paragraph.
JIF shall be entitled to participate, at its own expense, in the
defense or, if JIF so elects, to assume the defense of any suit brought to
enforce such claim but, if JIF elects to assume the defense, such defense shall
be conducted by legal counsel chosen by JIF and satisfactory to the persons
indemnified who are defendants in the suit. In the event that JIF elects to
assume the defense of any such suit and retain such legal counsel, the persons
indemnified who are defendants in the suit shall bear the fees and expenses of
any additional legal counsel retained by them. If JIF does not elect to assume
the defense of any such suit, JIF will reimburse the persons indemnified who are
defendants in such suit for the reasonable fees and expenses of any legal
counsel retained by them in such litigation.
13. Duration and Termination of this Agreement. With respect to each
Fund and the Distributor, this Agreement shall become effective upon its
execution ("Effective Date") and unless terminated as provided herein, shall
remain in effect through July 1, 1998, and from year to year thereafter, but
only so long as such continuance is specifically approved at least annually (a)
by a vote of a majority of the Trustees who are not interested persons of the
Distributor or of the Fund, voting in person at a meeting called for the purpose
of voting on such approval, and (b) by the vote of either the Trustees or a
majority of the outstanding shares of the Fund. If the continuance of this
Agreement is not approved as to a Fund, the Distributor may continue to render
to that Fund the services described herein in the manner and to the extent
permitted by the 1940 Act and the rules and regulations thereunder, and this
Agreement shall continue with respect to those Funds that have approved its
continuance. This Agreement may be terminated by and between an individual Fund
and the Distributor at any time, without the payment of any penalty (a) on 60
days' written notice, by the Trustees or by a vote of a majority of the
outstanding Shares of such Fund, or by the Distributor, or (b) immediately, on
written notice by the Trustees, in the event of termination or suspension of any
of the Registrations. This Agreement will automatically terminate in the event
of its assignment.
In interpreting the provisions of this Paragraph 13, the definitions
contained in Section 2(a) of the 1940 Act (particularly the definitions of
"interested person", "assignment", and "majority of the outstanding shares")
shall be applied.
14. Amendment of this Agreement. No provision of this Agreement may be
changed, waived, discharged, or terminated orally, but only by an instrument in
writing signed by each party
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against which enforcement of the change, waiver, discharge, or termination is
sought. If JIF should at any time deem it necessary or advisable in the best
interests of a Fund 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,
JIF may terminate this Agreement as to that Fund forthwith. If the Distributor
should at any time request that a change be made in JIF's Agreement and
Declaration of Trust or By-Laws or in its methods of doing business, or in the
registration statement, the Prospectus or the Statement of Additional
Information of any 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
JIF should not make such necessary changes within a reasonable time, the
Distributor may terminate this Agreement as to that Fund forthwith.
15. Limitation of Personal Liability. The parties to this Agreement
acknowledge and agree that all liabilities of JIF arising, directly or
indirectly, under this Agreement, of any and every nature whatsoever, shall be
satisfied solely out of the assets of JIF and that no Trustee, officer or holder
of shares of beneficial interest of JIF shall be personally liable for any of
such liabilities. JIF's Agreement and Declaration of Trust, as amended from time
to time, is on file in the Office of the Secretary of State of The Commonwealth
of Massachusetts, and describes in detail the respective responsibilities and
limitations on liability of the Trustees, officers and holders of shares of
beneficial interest of JIF.
16. Notification by JIF. JIF agrees to advise the Distributor immediately:
(a) of any request by the SEC for amendments to JIF's Registration
Statement insofar as it relates to any of the Funds, the Prospectus or the
Statement of Additional Information or for additional information,
(b) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of JIF's Registration Statement insofar as it
relates to any of the Funds, the Prospectus or the Statement of Additional
Information or the initiation of any proceeding for that purpose,
(c) of the occurrence of any material event which makes untrue
any statement made in JIF's Registration Statement insofar as it relates to any
of the Funds, the Prospectus or the Statement of Additional Information or which
requires the making of a change in order to make the statements therein not
misleading and
(d) of all actions of the SEC with respect to any amendments
to JIF's Registration Statement insofar as it related to any of the Funds, the
Prospectus or the Statement of Additional Information which may from time to
time be filed with the SEC under the 1933 Act.
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17. Miscellaneous. The captions in this Agreement are included for
convenience of reference only, and in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
18. Notice. Any notice required or permitted to be given by a party to
this Agreement or to any other party hereunder shall be deemed sufficient if
delivered in person or sent by registered or certified mail, postage prepaid,
addressed by the party giving notice to each such other party at the address
provided below or to the last address furnished by each such other party to the
party giving notice.
If to JIF: 000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attn: Secretary
If to the Distributor: 000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attn: Secretary
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
ATTEST: JANUS DISTRIBUTORS, INC.
/s/ Xxxxxxx Xxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxx Xxxxx
Xxxxxx Xxxxxx Xxxxx, President
ATTEST: JANUS INVESTMENT FUND
/s/ Xxxxxxx Xxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
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