Exhibit 5(b)
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED DISTRIBUTION AGREEMENT (the "Agreement") is made
as of the 2nd day of August, 2004, by and between Janus Adviser, a statutory
trust organized and existing under the laws of the State of Delaware ("the
Trust"), on behalf of the Investor Shares, Class A Shares, Class I Shares and
Class C Shares (each, a "Class") of each of its portfolios, 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 August 5, 2003.
This Agreement applies to the Investor Shares, Class A Shares, Class I Shares,
Class C Shares, and to any additional share classes hereafter created (together,
the "Shares") of each Fund of the Trust.
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 a Distribution
Agreement, under which the Distributor serves as Distributor to Investor Shares,
Class A Shares, Class C Shares and Class I Shares of the Funds, and the parties
now wish to amend such agreement; and
WHEREAS, the Trust has adopted on behalf of each of the Investor Shares,
Class A Shares, Class I Shares and Class C 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 of each Fund.
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
2
Servicing Agreement applicable to that class, forms of which are
attached hereto as Exhibits A, B, and C), 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
3
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 Class A Shares in the amount set forth, if any, in the then current
prospectus and statement of additional information for such Class. Such sales
charge (subject to any reductions or eliminations of sales charges as set forth
in the then current prospectus and statement of additional information for such
Class) shall be an amount mutually agreed upon by the Distributor and the Trust
and equal to the difference, if any, between the net asset value and the public
offering price of the Class A Shares. 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
statement 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 such 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, as described in the then effective
prospectus and statement of additional information for such Class. Certain
Classes of 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 the Classes. 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
4
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
5
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 the 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 of any Fund 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
6
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) with respect to a particular Class of Shares, 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 related to such Class of 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
7
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;
8
(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
9
If to the Distributor: 000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Secretary
IN WITNESS WHEREOF, the parties have executed this Agreement.
ATTEST: JANUS ADVISER
/s/Xxxxxx Xxxxxx Xxxxx By: /s/Xxxxxx X. Xxxxxx
---------------------- -------------------------------------
Xxxxxx X. Xxxxxx
President and Chief Executive officer
ATTEST: JANUS DISTRIBUTORS LLC
/s/Xxxxxx Xxxxxx Xxxxx By: /s/Xxxxx X. Xxxxx
---------------------- -------------------------------------
Xxxxx X. Xxxxx
Vice President of Finance and
Chief Financial Officer
10
EXHIBIT A
FORMS OF DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT FOR CLASS I SHARES
-1-
DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
CLASS I SHARES OF JANUS ADVISER
(for Plans)
This Agreement is made as of _________________, by and between Janus
Distributors LLC (the "Distributor"), a Delaware limited liability company, and
_________________________________________ (the "Service Provider"), a
____________________ corporation.
RECITALS
A. The Distributor serves as the distributor to Janus Adviser (the
"Trust"), an open-end management investment company registered under the
Investment Company Act of 1940 (the "1940 Act").
B. Service Provider desires to provide certain distribution and
shareholder services to certain participants ("Plan Participants") in pension or
retirement plans ("Plans") in connection with their investment in the Class I
Shares ("Shares") of the series of the Trust listed on Exhibit A hereto (each a
"Fund") and Distributor desires Service Provider to provide such services,
subject to the conditions of this Agreement.
C. Pursuant to Rule 12b-1 under the 1940 Act, the Shares of each Fund have
adopted a Distribution and Shareholder Servicing Plan (the "12b-1 Plan") which,
among other things, authorizes the Distributor to enter into this Agreement with
organizations such as Service Provider and to compensate such organizations out
of each Fund's average daily net assets attributable to the Shares.
D. The parties desire that Shares of the Funds be available as investment
options for Plan Participants.
AGREEMENT
1. Services of Service Provider
(a) The Service Provider shall provide any combination of the
following support services, as agreed upon by the parties from time to time, to
Plan Participants who invest in the Shares of the Funds: delivering
prospectuses, statements of additional information and shareholder reports to
prospective and existing Plan Participants; delivering shareholder reports and
proxy materials to Plan Participants; providing educational materials regarding
the Shares; providing facilities to answer questions from prospective and
existing Plan Participants about the Funds; receiving and answering
correspondence; complying with federal and state securities laws pertaining to
the sale of Shares; and assisting Plan Participants in completing application
forms and selecting account options.
-2-
(b) The 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 Plan Participants.
(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 Plan
Participant or Participants.
(d) Service Provider shall not make the Shares available to Plan
Participants 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, statement of additional information,
shareholder reports, proxy materials and similar materials for the Shares to
Plan Participants in accordance with and within the time frames required by
applicable law.
(e) 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. Indemnification. The Service Provider shall indemnify Distributor, 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.
3. 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 prospectus and statement of additional information
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.
(b) If Service Provider elects to include any materials provided by
Distributor, specifically prospectuses, statements of additional information,
shareholder reports or proxy materials, on its web site 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.
-3-
4. 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, if
specifically required by a particular state, information on sales, redemptions
and exchanges of Shares of each Fund by state or jurisdiction of residence of
Plan Participants 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.
5. 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.
6. Proprietary Rights. Janus Capital Management LLC ("Janus Capital") is
the sole owner of the name and xxxx "Xxxxx." Neither the Service Provider, nor
its affiliates, employees, or agents shall, without prior written consent of
Janus Capital, use the name or xxxx "Xxxxx" or make representations regarding
the Trust, Distributor, Janus Capital, or their affiliates, or any products or
services sponsored, managed, advised, or administered by the Trust, Distributor,
Janus Capital or their affiliates, except those contained in the then current
prospectus and the then current printed sales literature for the Shares of the
Funds. All references contained in this Agreement to "the name or xxxx `Xxxxx'"
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. 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 Capital in writing. All goodwill
associated with the name and xxxx "Xxxxx" shall inure to the benefit of Janus
Capital. Upon termination of this Agreement for any reason, the Service Provider
shall immediately cease any and all use of any Xxxxx xxxx(s).
7. Fees. In consideration of Service Provider's performance of the
services described in this Agreement, Distributor shall pay to the Service
Provider a monthly fee ("Distribution Fee") calculated as follows: the average
aggregate amount invested in each month in the Shares of each Fund by Plans
whose Plan Participants receive services hereunder by the
-4-
Service Provider is multiplied by a pro-rata fee factor. The pro-rata fee factor
is calculated by: (a) dividing the per annum factor set forth on Exhibit A 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 Plans whose Plan Participants receive
services hereunder by the Service Provider (share net asset value multiplied by
total number of shares held) on each calendar day during the month and dividing
by the total number of calendar days during such month.
Distributor will calculate the fee at the end of each month and will make
such reimbursement to the Service Provider. The reimbursement check will be
accompanied by a statement showing the calculation of the monthly 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.
If the Service Provider utilizes a third party who has an agreement with
Distributor to provide some or all of the services set forth in this Agreement
and Service Provider wishes Distributor to directly pay such third party for
such services, the total reimbursement due to the Service Provider or the third
party from 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. In no event shall Distributor make partial payments of fees to both
the Service Provider and any such third party.
8. 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.
9. 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 by the Plans to enter into
this Agreement;
(c) The Service Provider is registered as a broker and dealer
pursuant to the Securities Exchange Act of 1934 (the "Exchange Act") and any
applicable state securities laws or is not required to be 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
-5-
Security Act of 1974, as amended ("ERISA"), the Internal Revenue Code of 1986,
as amended ("IRC"), federal or state securities laws, or any other applicable
law;
(e) The fee arrangement under this Agreement will be disclosed to a
Plan fiduciary unrelated to the Service Provider, prior to the Service
Provider's receipt of fees hereunder; and
(f) [SELECT ALTERNATIVE A OR B] A. [Neither the Service Provider,
nor any affiliate, will be a "fiduciary" of the Plans, as such term is defined
in Section 3(21) of ERISA and Section 4975 of the IRC. Neither the Service
Provider, nor any affiliate, makes any investment recommendations to any of the
Plans or Plan Participants.] B. [The Service Provider will reduce the fees it
charges to the Plans 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 IRC.
10. Market Timing. Service Provider acknowledges that Distributor 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.
11. 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 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. 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, either 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.
-6-
12. 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.
(e) All notices and other communications to either Service Provider
or Distributor will be duly given if mailed or faxed to the address set forth
below, or to such other address as either party may provide in writing to the
other party.
If to Distributor:
Janus Distributors LLC
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel
If to the Service Provider:
_______________________________
_______________________________
_______________________________
_______________________________
-7-
JANUS DISTRIBUTORS LLC
________________________________
(Name of Service Provider)
By: ___________________________ By: ____________________________
Name: Xxxxxx X. Xxxx Name: __________________________
Title: Vice President Title: _________________________
-8-
EXHIBIT A TO DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
Name of Fund Fee Factor*
------------ -----------
All Funds of Janus Adviser** .25%
(Class I Shares)
The Service Provider has no obligation to make available any or all of the Funds
of Janus Adviser.
------------------
* Shall not exceed 0.25%
** Certain Funds of Janus Adviser may become closed to new investors after the
date of this Agreement. If a certain Janus Adviser 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 Fund's then current
prospectus.
-9-
DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
CLASS I SHARES OF JANUS ADVISER
(for Bank Trust Departments)
This Agreement is made as of _________________, by and between Janus
Distributors LLC (the "Distributor"), a Delaware limited liability company, and
_______________________________________ (the "Service Provider"), a
____________________ corporation.
RECITALS
A. The Distributor serves as the distributor to Janus Adviser (the
"Trust"), an open-end management investment company registered under the
Investment Company Act of 1940 (the "1940 Act").
B. Service Provider desires to provide certain distribution and
shareholder services to its clients ("Shareholders") in connection with their
investment in the Class I Shares ("Shares") of the series of the Trust listed on
Exhibit A hereto (each a "Fund") and Distributor desires Service Provider to
provide such services, subject to the conditions of this Agreement.
C. Pursuant to Rule 12b-1 under the 1940 Act, the Shares of each Fund have
adopted a Distribution and Shareholder Servicing Plan (the "12b-1 Plan") which,
among other things, authorizes the Distributor to enter into this Agreement with
organizations such as Service Provider and to compensate such organizations out
of each Fund's average daily net assets attributable to the Shares.
D. The parties desire that Shares of the Funds be available as investment
options for Shareholders.
AGREEMENT
1. Services of Service Provider
(a) The Service Provider shall provide any combination of the
following support services, as agreed upon by the parties from time to time, to
Shareholders who invest in the Shares of the Funds: delivering prospectuses and
statements of additional information to prospective and existing Shareholders;
delivering shareholder reports and proxy materials to Shareholders; providing
educational materials regarding the Shares; providing facilities to answer
questions from prospective and existing Shareholders about the Funds; receiving
and answering correspondence; complying with federal and state securities laws
pertaining to the sale of Shares; and assisting Shareholders in completing
application forms and selecting account options.
-10-
(b) The 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 Shareholders.
(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
Shareholders.
(d) Service Provider shall not make the Shares available to
Shareholders 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, statement of additional information,
shareholder reports, proxy materials and similar materials for the Shares to
Shareholders in accordance with and within the time frames required by
applicable law. All transactions in Fund Shares shall be subject to the terms of
each Fund's prospectus, including minimum account size requirements. During the
term of this Agreement, Service Provider shall not assess against or collect
from Shareholders any transaction fee in connection with the purchase or
redemption of any Fund Shares that are considered in calculating the fees due
pursuant to Section 7.
(e) 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. Indemnification. The Service Provider shall indemnify Distributor, 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.
3. 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 prospectus and statement of additional information
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.
(b) If Service Provider elects to include any materials provided by
Distributor, specifically prospectuses, statements of additional information,
shareholder reports or proxy materials, on its web site 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.
-11-
4. 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 Shareholders 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.
5. 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.
6. Proprietary Rights. Janus Capital Management LLC ("Janus Capital") is
the sole owner of the name and xxxx "Xxxxx." Neither the Service Provider, nor
its affiliates, employees, or agents shall, without prior written consent of
Janus Capital, use the name or xxxx "Xxxxx" or make representations regarding
the Trust, Distributor, Janus Capital, or their affiliates, or any products or
services sponsored, managed, advised, or administered by the Trust, Distributor,
Janus Capital or their affiliates, except those contained in the then current
prospectus and the then current printed sales literature for the Shares of the
Funds. All references contained in this Agreement to "the name or xxxx `Xxxxx'"
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. 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 Capital in writing. All goodwill
associated with the name and xxxx "Xxxxx" shall inure to the benefit of Janus
Capital. Upon termination of this Agreement for any reason, the Service Provider
shall immediately cease any and all use of any Xxxxx xxxx(s).
7. Fees. In consideration of Service Provider's performance of the
services described in this Agreement, Distributor shall pay to the Service
Provider a monthly fee ("Distribution Fee") calculated as follows: the average
aggregate amount invested in each month in the Shares of each Fund by
Shareholders who receive services hereunder by the Service
-12-
Provider is multiplied by a pro-rata fee factor. The pro-rata fee factor is
calculated by: (a) dividing the per annum factor set forth on Exhibit A 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 Shareholders who receive services hereunder
by the Service Provider (share net asset value multiplied by total number of
shares held) on each calendar day during the month and dividing by the total
number of calendar days during such month.
Distributor will calculate the fee at the end of each month and will make
such reimbursement to the Service Provider. The reimbursement check will be
accompanied by a statement showing the calculation of the monthly 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 fee due under this paragraph shall not apply to Fund shares held by
any Shareholder prior to the date of this Agreement and Shares as to which a
Shareholder may pay a transaction fee to Service Provider.
If the Service Provider utilizes a third party who has an agreement with
Distributor to provide some or all of the services set forth in this Agreement
and Service Provider wishes Distributor to directly pay such third party for
such services, the total reimbursement due to the Service Provider or the third
party from 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. In no event shall Distributor make partial payments of fees to both
the Service Provider and any such third party.
8. 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.
9. 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 by the Shareholders to enter
into this Agreement;
(c) The Service Provider is registered as a broker and dealer
pursuant to the Securities Exchange Act of 1934 (the "Exchange Act") and any
applicable state securities laws or is not required to be registered in order to
enter into and perform the services set forth in this Agreement;
-13-
(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 Shareholder prior to the Service Provider's receipt of fees hereunder;
(f) The Service Provider and any affiliates will reduce the fees
charged to any Shareholder for which Service Provider or any affiliate is a
"fiduciary," as such term is defined in Section 3(21) of ERISA and Section 4975
of the IRC, by an amount equal to the fees paid pursuant to this Agreement.
Service Provider and any affiliates do not make any investment recommendations
to any Shareholder for whom Service Provider or any affiliate is a fiduciary.
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) Service Provider's discretionary investment management account
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;
and
(h) Each transaction shall be for the accounts of Shareholders and
not for Service Provider's own account.
10. Market Timing. Service Provider acknowledges that Distributor 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.
11. 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 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. 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"
-14-
(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, either 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.
12. 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.
(e) All notices and other communications to either Service Provider
or Distributor will be duly given if mailed or faxed to the address set forth
below, or to such other address as either party may provide in writing to the
other party.
If to Distributor:
Janus Distributors LLC
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel
-15-
If to the Service Provider:
_____________________________
_____________________________
_____________________________
_____________________________
JANUS DISTRIBUTORS LLC ________________________________
(Name of Service Provider)
By: ______________________________ By: ____________________________
Name: Xxxxxx X. Xxxx Name: __________________________
Title: Vice President Title: _________________________
-16-
EXHIBIT A TO DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
Name of Fund Fee Factor*
------------ ----------
All Funds of Janus Adviser** 0.25%
(Class I Shares)
------------------
*Shall not exceed 0.25%
**Certain Funds of Janus Adviser may become closed to new investors after the
date of this Agreement. If a certain Janus Adviser 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.
-17-
DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
CLASS I SHARES OF JANUS ADVISER
(for Fee-Based and Brokerage Accounts)
This Agreement is made as of _________________, by and between Janus
Distributors LLC (the "Distributor"), a Delaware limited liability company, and
_______________________________________ (the "Service Provider"), a
____________________ corporation.
RECITALS
A. The Distributor serves as the distributor to Janus Adviser (the
"Trust"), an open-end management investment company registered under the
Investment Company Act of 1940 (the "1940 Act").
B. Service Provider desires to provide certain distribution and
shareholder services to its clients ("Shareholders") in connection with their
investment in the Class I Shares ("Shares") of the series of the Trust listed on
Exhibit A hereto (each a "Fund") and Distributor desires Service Provider to
provide such services, subject to the conditions of this Agreement.
C. Pursuant to Rule 12b-1 under the 1940 Act, the Shares of each Fund have
adopted a Distribution and Shareholder Servicing Plan (the "12b-1 Plan") which,
among other things, authorizes the Distributor to enter into this Agreement with
organizations such as Service Provider and to compensate such organizations out
of each Fund's average daily net assets attributable to the Shares.
D. The parties desire that Shares of the Funds be available as investment
options for Shareholders.
AGREEMENT
1. Services of Service Provider
(a) The Service Provider shall provide any combination of the
following support services, as agreed upon by the parties from time to time, to
Shareholders who invest in the Shares of the Funds: delivering prospectuses and
statements of additional information to prospective and existing Shareholders;
delivering shareholder reports and proxy materials to Shareholders; providing
educational materials regarding the Shares; providing facilities to answer
questions from prospective and existing Shareholders about the Funds; receiving
and answering correspondence; complying with federal and state securities laws
pertaining to the sale of Shares; and assisting Shareholders in completing
application forms and selecting account options.
-18-
(b) The 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 Shareholders.
(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
Shareholders.
(d) Service Provider shall not make the Shares available to
Shareholders 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, statement of additional information,
shareholder reports, proxy materials and similar materials for the Shares to
Shareholders in accordance with and within the time frames required by
applicable law. All transactions in Fund Shares shall be subject to the terms of
each Fund's prospectus, including minimum account size requirements. During the
term of this Agreement, Service Provider shall not assess against or collect
from Shareholders any transaction fee in connection with the purchase or
redemption of any Fund Shares that are considered in calculating the fees due
pursuant to Section 7.
(e) 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. Indemnification. The Service Provider shall indemnify Distributor, 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.
3. 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 prospectus and statement of additional information
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.
(b) If Service Provider elects to include any materials provided by
Distributor, specifically prospectuses, statements of additional information,
shareholder reports or proxy materials, on its web site or in any other computer
or electronic format, Service Provider
-19-
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.
4. 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 Shareholders 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.
5. 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.
6. Proprietary Rights. Janus Capital Management LLC ("Janus Capital") is
the sole owner of the name and xxxx "Xxxxx." Neither the Service Provider, nor
its affiliates, employees, or agents shall, without prior written consent of
Janus Capital, use the name or xxxx "Xxxxx" or make representations regarding
the Trust, Distributor, Janus Capital, or their affiliates, or any products or
services sponsored, managed, advised, or administered by the Trust, Distributor,
Janus Capital or their affiliates, except those contained in the then current
prospectus and the then current printed sales literature for the Shares of the
Funds. All references contained in this Agreement to "the name or xxxx `Xxxxx'"
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. 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 Capital in writing. All goodwill
associated with the name and xxxx "Xxxxx" shall inure to the benefit of Janus
Capital. Upon termination of this Agreement for any reason, the Service Provider
shall immediately cease any and all use of any Xxxxx xxxx(s).
-20-
7. Fees. In consideration of Service Provider's performance of the
services described in this Agreement, Distributor shall pay to the Service
Provider a monthly fee ("Distribution Fee") calculated as follows: the average
aggregate amount invested in each month in the Shares of each Fund by
Shareholders who receive services hereunder by the Service Provider is
multiplied by a pro-rata fee factor. The pro-rata fee factor is calculated by:
(a) dividing the per annum factor set forth on Exhibit A 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 Shareholders who receive services hereunder by the
Service Provider (share net asset value multiplied by total number of shares
held) on each calendar day during the month and dividing by the total number of
calendar days during such month.
Distributor will calculate the fee at the end of each month and will make
such reimbursement to the Service Provider. The reimbursement check will be
accompanied by a statement showing the calculation of the monthly 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 fee due under this paragraph shall not apply to Fund shares held by
any Shareholder prior to the date of this Agreement and Shares as to which a
Shareholder may pay a transaction fee to Service Provider.
If the Service Provider utilizes a third party who has an agreement with
Distributor to provide some or all of the services set forth in this Agreement
and Service Provider wishes Distributor to directly pay such third party for
such services, the total reimbursement due to the Service Provider or the third
party from 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. In no event shall Distributor make partial payments of fees to both
the Service Provider and any such third party.
8. 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.
9. 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 by the Shareholders to enter
into this Agreement;
-21-
(c) The Service Provider is registered as a broker and dealer
pursuant to the Securities Exchange Act of 1934 (the "Exchange Act") and any
applicable state securities laws or is not required to be 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 Shareholder 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 Shareholders 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 Shareholders 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) Service Provider's fee-based account 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; and
(h) Each transaction shall be for the accounts of Shareholders and
not for Service Provider's own account.
10. Market Timing. Service Provider acknowledges that Distributor 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.
11. 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 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.
-22-
(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. 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, either 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.
12. 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.
(e) All notices and other communications to either Service Provider
or Distributor will be duly given if mailed or faxed to the address set forth
below, or to such other address as either party may provide in writing to the
other party.
-23-
If to Distributor:
Janus Distributors LLC
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel
If to the Service Provider:
______________________________
______________________________
______________________________
______________________________
JANUS DISTRIBUTORS LLC _______________________________
(Name of Service Provider)
By: ___________________________________ By: ___________________________
Name: Xxxxxx X. Xxxx Name: _________________________
Title: Vice President Title: ________________________
-24-
EXHIBIT A TO DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
Name of Fund Fee Factor*
------------ ----------
All Funds of Janus Adviser** 0.25%
(Class I Shares)
------------------
*Shall not exceed 0.25%
**Certain Funds of Janus Adviser may become closed to new investors after the
date of this Agreement. If a certain Janus Adviser 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.
-25-
EXHIBIT B
FORM OF DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT FOR CLASS C SHARES
-26-
DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
CLASS C SHARES OF JANUS ADVISER
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 Janus Adviser (the
"Trust"), an open-end management investment company registered under the
Investment Company Act of 1940 (the "1940 Act").
X. Xxxxx Services is the registered transfer agent of the Trust.
C. Class C Shares ("Shares") of the series of the Trust listed on Exhibit
A hereto (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 to appoint Service Provider and Service
Provider desires to serve, as the Distributor's agent for the limited purpose of
providing distribution assistance pertaining to the Funds.
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 Class C Shares.
D. 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 the 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 the 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").
F. The Service Provider has executed the NSCC Fund/SERV Agreement and
related Addendum (or similar mutually acceptable agreement) (together, the "NSCC
Agreement") with
-27-
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) Service Provider agrees to act as the Distributor's and Janus
Services' agent in providing the services 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) 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.
(c) 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.
(d) 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.
(e) 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. All transactions in Fund
Shares shall be subject to the terms of each Fund's Prospectus, including
minimum initial investment requirements.
(f) 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.
-28-
(g) 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) All orders will 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 10:00 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.
(b) 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.
(c) 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.
(d) Notwithstanding any agreement between the parties to the
contrary, Janus Services will accept Customer-level accounts provided that all
trades are processed through the NSCC Systems. 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
-29-
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.
(e) 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 as Matrix Level
1 accounts to enable Janus Distributors to waive contingent deferred sales
charges on distributions to such accounts in accordance with the terms of the
then-current Prospectus.
(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 and excessive
trading. 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.
(g) 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.
3. Compensation.
(a) In return for providing the services set forth in this
Agreement, unless Service Provider waives this right, Service Provider shall be
entitled to a re-allowance of the entire initial sales charge as set forth in
the then-current Prospectus. Service Provider shall be entitled to such
re-allowance upon receipt of purchase funds from Customers.
(b) In addition to the re-allowance set forth above in paragraph
3(a), Service Provider shall be entitled to receive additional compensation
and/or an asset-based sales charge and/or a service fee for each Fund in an
amount equal to a percentage of net assets set forth as follows:
(i) a one-time fee, in an amount as set forth in Exhibit A,
Section 1, based on the aggregate net asset value of Shares of each Fund
purchased during a month by Customers who receive services hereunder from
the Service Provider; and
(ii) beginning in the 13th month after such Share purchase, an
on-going 12b-1 fee, in an amount calculated and paid as set forth in
Exhibit A, Section 2. Service
-30-
Provider agrees to waive the compensation pursuant to this Section
3(b)(ii) until Distributor receives the distribution and shareholder
servicing fees from the Trust. The Distributor's liability for payment of
this compensation is limited solely to the proceeds of the distribution
and shareholder servicing fees receivable from the Trust.
Distributor will calculate the fees payable pursuant to this Agreement at
the end of each calendar quarter and will make such payment to the Service
Provider. The payment will be accompanied by a statement showing the calculation
of the quarterly 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.
If Service Provider utilizes a third party who has an agreement with
Distributor to provide some or all of the services set forth in this Agreement
and Service Provider wishes Distributor to directly pay such third party for
such services, the total payment due to the Service Provider or the third party
from 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.
In no event shall Distributor make partial payments of fees to both the Service
Provider and any such third party.
4. 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.
5. 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.
(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. Maintenance of Records.
-31-
(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.
7. 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.
8. Proprietary Rights. Janus Capital Management LLC ("Janus Capital") 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 Capital, use the name or
xxxx "Xxxxx" or make representations regarding the Trust, Distributor, Janus
Capital, or their affiliates, or any products or services sponsored, managed,
advised, or administered by the Trust, Distributor, Janus Capital 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 Capital in writing.
All goodwill associated with the name and xxxx "Xxxxx" shall inure to the
benefit of Janus Capital. Upon termination of this Agreement for any reason, the
Service Provider shall immediately cease any and all use of any Xxxxx xxxx(s).
9. Non-Exclusivity. Each of the parties acknowledges and agrees that this
Agreement and the arrangement described herein are intended to be non-exclusive
and that each of the parties is free to enter into similar agreements and
arrangements with other entities.
-32-
10. 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;
-33-
(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.
11. Confidentiality of Customer Information. The names, addresses and
other information concerning Customers are and shall remain the sole property of
Service Provider. Neither the Distributor, Janus Services, their affiliates, nor
their officers, directors, employees or agents, or any control person of the
foregoing persons, shall use such names, addresses or other information for any
purpose except in connection with the performance of the Distributor's and Janus
Services' duties and responsibilities hereunder and except for shareholder
servicing 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.
-34-
12. 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 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
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.
13. 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.
-35-
(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 Xxxxxxxx Xxxxxx 000 Xxxxxxxx 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: Xxxxxx X. Xxxx Name: ____________________
Title: Vice President Title: ___________________
JANUS SERVICES LLC
By: __________________________________
Name: Xxxxxx X. Xxxx
Title: Vice President
-36-
EXHIBIT A TO DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
SECTION 1
Name of Fund One-Time Fee Factor
------------ -------------------
All Funds of Janus Adviser (Class C Shares) 1.00%
except Money Market Fund*
SECTION 2
Name of Fund Fee Factor per Annum
------------ --------------------
All Funds of Janus Adviser (Class C Shares)* 1.00%
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.
------------------
*Certain Funds of Janus Adviser may become closed to new investors after the
date of this Agreement. If a certain Janus Adviser 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.
-37-
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) _________________________________________________________
________
________
________
_________________________________________________________________________
________
-38-
EXHIBIT C TO DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
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 10:00 a.m. EST.
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.
-39-
EXHIBIT C
FORM OF MULTI-CLASS DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
-40-
DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
JANUS ADVISER
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 Janus Adviser (the
"Trust"), an open-end management investment company 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 ("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 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 investing in 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 those Shares indicated on Exhibit A 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.
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").
-41-
H. 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) Service Provider agrees to act as Janus Services' agent in
providing the services 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) 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.
(c) 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.
(d) 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.
(e) 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. All transactions in Fund
Shares shall be subject to the terms of each Fund's Prospectus, including
minimum initial investment requirements.
(f) 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 an applicable sales charge, if any) 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.
-42-
(g) 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) 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.
(b) 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.
(c) 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.
(d) Notwithstanding any agreement between the parties to the
contrary, Janus Services will accept Customer-level accounts provided that all
trades are processed through the NSCC Systems. 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
-43-
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.
(e) 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 as Matrix Level
1 to enable Janus Distributors to waive contingent deferred sales charges to
such accounts in accordance with the terms of the then-current Prospectus.
(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, redemption fees
and excessive trading. 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.
(g) 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.
(h) Service Provider acknowledges its obligation to accurately
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 such Shares.
3. Compensation.
(a) CHOOSE A OR B: A. [In return for providing the services set
forth in this Agreement Service Provider shall be entitled to a re-allowance of
the entire initial sales charge, if applicable to a particular Share class, as
set forth in the then-current Prospectus. Service Provider shall be entitled to
such re-allowance upon receipt of purchase funds from Customers.] B. [Service
Provider agrees to waive the entire initial sales charge re-allowance set forth
in a Fund's then-current Prospectus.]
-44-
(b) In addition to the re-allowance set forth above in paragraph
3(a), Service Provider shall be entitled to receive additional compensation
and/or an asset-based sales charge and/or a service fee for each Fund as
described in Exhibit A
in an amount equal to a percentage of net assets set forth as follows:
(i) a one-time fee, in an amount as set forth in Exhibit A,
Section 1, 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 the Service Provider; and
(ii) an on-going 12b-1 fee, in an amount calculated and paid
as set forth in Exhibit A, Section 2. With respect to Class C Shares, such
fee will begin to accrue in the 13th month after such Share purchase. The
Distributor's liability for payment of this compensation is limited solely
to the proceeds of the distribution and shareholder servicing fees
receivable from the Trust.
(c) For all orders processed via the NSCC Systems, Distributor will
daily calculate and pay the fees payable pursuant to Section 3(a) 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.
(d) Distributor will calculate the fees payable pursuant to Section
3(b)(i) of this Agreement two times per month and will make such payment to the
Service Provider.
(e) Distributor will calculate the fees payable pursuant to Section
3(b)(ii) of this Agreement at the end of each month and will make such payment
to the Service Provider.
(f) 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.
(g) If Service Provider utilizes a third party who has an agreement
with Distributor to provide some or all of the services set forth in this
Agreement and Service Provider wishes Distributor to directly pay such third
party for such services, the total payment due to the Service Provider or the
third party from 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. In no event shall Distributor make partial payments of fees to
both the Service Provider and any such third party.
4. 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)
-45-
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.
5. 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.
(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. 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.
7. 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.
-46-
8. Proprietary Rights. Janus International Holding LLC ("Janus Holding")
or its affiliate is the sole owner of the name and xxxx "Xxxxx." All references
contained in this Agreement to "the name or xxxx `Janus'" shall include but not
be limited to the Janus logo, the website xxx.xxxxx.xxx and any and all
electronic links relating to such website. Neither the Service Provider, nor its
affiliates, employees, or agents shall, without prior written consent of Janus
Holding, use the name or xxxx "Xxxxx" or make representations regarding the
Trust, 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 Holding or its affiliate. Upon termination of this
Agreement for any reason, the Service Provider shall immediately cease any and
all use of any Xxxxx xxxx(s).
9. Non-Exclusivity. Each of the parties acknowledges and agrees that this
Agreement and the arrangement described herein are intended to be non-exclusive
and that each of the parties is free to enter into similar agreements and
arrangements with other entities.
10. 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
-47-
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;
(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.
11. Confidentiality of Customer Information. The names, addresses and
other information concerning Customers are and shall remain the sole property of
Service Provider. Neither the Distributor, Janus Services, their affiliates, nor
their officers, directors, employees or agents, or any control person of the
foregoing persons, shall use such names, addresses or other information for any
purpose except in connection with the performance of the Distributor's and Janus
Services' duties and responsibilities hereunder and except for shareholder
servicing and informational mailings relating to the Funds. Notwithstanding the
foregoing, this Section 11
-48-
shall not prohibit the Distributor, Janus Services or any of their affiliates
from using for any purpose the names, addresses or other information concerning
any of Service Provider's Customers if such names, addresses or other
information are obtained in any manner other than from Service Provider pursuant
to this Agreement. The provisions of this Section 11 shall survive termination
of this Agreement.
12. Market Timing. Service Provider acknowledges that Distributor 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.
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 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
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
-49-
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.
(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 Xxxxxxxx Xxxxxx 000 Xxxxxxxx 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: Xxxxxx X. Xxxx Name:
Title: Vice President Title:
JANUS SERVICES LLC
By: ________________________________
Name: Xxxxxx X. Xxxx
-50-
Title: Vice President
-51-
EXHIBIT A TO DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
SECTION 1
Fund and Share class One-Time Fee Factor
-------------------- -------------------
Class A [____%]
Class C -- * 1.00%
SECTION 2
Share class Fee Factor per Annum
----------- --------------------
Class A 0.25%
Class C * 1.00%
Investor Shares 0.35%
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.
-52-
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) _________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
-53-
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.
-54-
