EXHIBIT 6(b)
DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
Retirement Shares of Janus Aspen Series
This Agreement is entered into as of the ___ day of _______________, 19__,
between Janus Distributors, Inc. (the "Distributor"), a Colorado corporation,
and __________________ ("Service Organization"), a ______________ corporation .
WHEREAS, the Distributor serves as the distributor to a class of
shares designated the "Retirement Shares" of each series of Janus Aspen
Series (the "Trust"), an open-end management investment company registered
under the Investment Company Act of 1940 (the "1940 Act");
WHEREAS, Service Organization desires to provide certain distribution
and shareholder services to certain participants in participant directed
qualified pension or retirement plans ("Plan Participants") in connection
with their investment in the Retirement Shares of the series of the Trust
listed on Schedule A hereto (each a "Portfolio") and Distributor desires
Service Organization to provide such services, subject to the conditions of
this Agreement;
WHEREAS, pursuant to Rule 12b-1 under the 1940 Act, the Retirement
Shares of each Portfolio have adopted a Distribution and Shareholder
Servicing Plan (the "Plan") which, among other things, authorizes the
Distributor to enter into this Agreement with organizations such as Service
Organization and to compensate such organizations out of each Portfolio's
average daily net assets attributable to the Retirement Shares.
Accordingly, the parties hereto agree as follows:
1. Services of Service Organization
(a) The Service Organization 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 Retirement Shares of the Portfolios:
printing and delivering prospectuses, statements of additional information,
shareholder reports, proxy statements and educational materials related to the
Retirement Shares to prospective and existing plan participants; providing
facilities to answer questions from prospective and existing Plan Participants
about the Portfolios; receiving and
answering correspondence; complying with federal and state securities laws
pertaining to the sale of Retirement Shares; and assisting Plan Participants in
completing application forms and selecting dividend and other accounts options.
(b) The Service Organization 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 Retirement 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 Retirement Shares
of any Portfolio, including the sale of such Retirement Shares to the Service
Organization for the account of any Plan Participant or Participants.
(d) Service Organization shall not offer or sell the Retirement Shares
except in compliance with federal and state securities law and subject to the
terms of the prospectus for the Retirement Shares. Service Organization shall be
responsible for delivering the prospectus, statement of additional information,
shareholder reports, proxy statements, and similar materials for the Retirement
Shares to Plan Participants in accordance with applicable law.
(e) The Service Organization 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. Maintenance of Records
(a) Each party shall maintain and preserve all records as required by
law to be maintained and preserved in connection with providing the services
described herein. Upon the
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reasonable request of Distributor or the Trust, Service Organization shall
provide Distributor, the Trust or the representative of either, copies of all
such records.
(b) Service Organization shall maintain and transmit to Distributor on
a daily basis (or a more infrequent basis as agreed by Distributor) information
on sales, redemptions and exchanges of Retirement Shares of each Portfolio by
state or jurisdiction of residence of Plan Participants and any other
information reasonably requested by Distributor. Such information shall be
provided in a form mutually agreeable to Distributor and Service Organization.
3. Compliance with Laws. At all times, Service Organization shall comply
with all laws, rules and regulations applicable to it by virtue of entering into
this Agreement. At all times, Distributor shall comply with all laws, rules and
regulations applicable to it by virtue of entering into this Agreement.
4. Operations of the Portfolios. In no way shall the provisions of this
Agreement 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 Portfolios and the sale of the
Retirement 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 Retirement Shares of any Portfolio to any person, or to
suspend or terminate the offering of the Retirement Shares of any Portfolio, 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
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duties under applicable law, necessary in the best interests of the shareholders
of any Portfolio.
5. Relationship of Parties. It is understood and agreed that all services
performed hereunder by Service Organization shall be as an independent
contractor and not as an employee or agent of Distributor, the Trust or any of
the Portfolios, and neither of the parties shall hold itself out as an agent of
the other party with the authority to bind such party.
6. Approval of Information Materials. No person is authorized to make any
representations concerning the Trust, the Portfolios, the Retirement Shares, or
the Distributor except those representations contained in the then-current
prospectus and statement of additional information for the Retirement Shares and
in such printed information as the Distributor or the Trust may subsequently
prepare. All materials for distribution to Plan Participants prepared by Service
Organization or any affiliate or agent that describe the Trust, the Portfolios,
the Retirement Shares, or Distributor shall be approved by Distributor or a
designee of Distributor prior to the use of such materials by Service
Organization or any affiliate or agent. Service Organization shall send all such
materials to Distributor for review at least 15 business days prior to filing
with any regulatory authority or general release.
7. Fees and Expenses
In consideration of Service Organization's performance of the services
described in this Agreement, the Distributor agrees to pay the Service
Organization a fee in accordance with, and in the manner set forth in, Schedule
B hereto. Such fee shall be computed by JDI and shall be payable within 15 days
following the end of each month. Except as otherwise provided
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herein, each party shall bear the expenses associated with performing its
obligations under this Agreement.
8. Representations, Warranties and Agreements
(a) Each party represents and warrants that it is free to enter into
this Agreement and that by doing so it will not breach or otherwise impair any
other agreement or understanding with any other person, corporation, or other
entity.
(b) Service Organization represents and warrants that:
(i) it is registered as a broker-dealer under the Securities
Exchange Act of 1934 ("1934 Act") and any applicable state securities laws, and
is a member in good standing of the National Association of Securities Dealers,
Inc. ("NASD"), or that its activities hereunder do not require it to register as
a broker-dealer or be a member of the NASD;
(ii) it has full power and authority under applicable law, and
has taken all action necessary, to enter into and perform this Agreement;
(iii) the arrangements provided for in this Agreement, including
the amount of the fee received by Service Organization, will be timely disclosed
to the Plan Participants to the extent required by applicable law; and
(iv) the performance of the duties and obligations and provision
of services by Service Organization as described in this Agreement and the
receipt of the fee as provided in this Agreement will not violate federal or
state banking law, the Employee Retirement Income Security Act of 1974, as
amended, the Internal Revenue Code of 1986, as amended, federal or state
securities laws, or any other applicable law.
(c) Distributor represents and warrants that:
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(i) it is registered as a broker-dealer under the 1934 Act and
any applicable state securities laws, and is a member in good standing of the
NASD;
(ii) it has full power and authority under applicable law, and
has taken all action necessary, to enter into and perform this Agreement;
(iii) the Trust is registered as an investment company under the
1940 Act and the Retirement Shares of the Portfolios are registered under the
Securities Act of 1933; and
(iv) the performance of the duties and obligations by Distributor
as described in this Agreement will not violate federal or state securities
laws, or any other applicable law.
9. Indemnification
(a) Service Organization agrees to indemnify Distributor and its
affiliates, and their directors, employees and agents for any loss (including
without limitation, litigation costs and expenses and attorneys' and experts'
fees and expenses) resulting from: (i) the negligent or willful act, omission or
error of Service Organization or its affiliates; (ii) any breach by Service
Organization of this Agreement; or (iii) the inaccuracy or breach of any
representation made by Service Organization in this Agreement.
(b) Distributor agrees to indemnify Service Organization and its
affiliates, and their directors, employees and agents for any loss (including
without limitation, litigation costs and expenses and attorneys' and experts'
fees and expenses) resulting from: (i) the negligent or willful act, omission or
error of Distributor or its affiliates; (ii) any breach by Distributor of this
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Agreement; or (iii) the inaccuracy or breach of any misrepresentation made by
Distributor in this Agreement.
10. Termination
(a) Unless sooner terminated with respect to any Fund, this Agreement
will continue with respect to a Portfolio until June 16, 1998, and thereafter
will continue automatically for successive annual periods ending on June 16 of
each year, provided such continuance 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 Plan relating to such
Portfolio or any agreement relating to such 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
Portfolio in the event of its assignment (as such term is defined in the 0000
Xxx) with respect to such Portfolio. This Agreement may be terminated with
respect to any Portfolio by the Distributor or by the Service Organization,
without penalty, upon [30] days' prior written notice to the other party. This
Agreement may also be terminated with respect to any Portfolio 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
Plan relating to such Portfolio or any agreement relating to such Plan,
including this Agreement, or by a vote of a majority of the Retirement Shares of
such Portfolio on [30] days' written notice.
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(c) Section 9 shall survive termination of this Agreement.
11. Assignment. This Agreement shall not be assigned by a party hereto
except with the written consent of the other parties.
12. Amendment. This Agreement, including Schedules A and B, may be amended,
and the terms of this Agreement, including Schedules A and B, may be waived,
only by a writing signed by each of the parties.
13. 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.
14. Notices. All notices and other communications to either the Service
Organization or the 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 the Distributor:
Janus Distributors, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
If to the Service Organization:
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15. Counterparts. This Agreement may be executed in counterparts which
together shall constitute one instrument.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado applicable to agreements fully
executed and to be performed therein, exclusive of conflicts of laws.
IN WITNESS WHEREOF, the undersigned have executed this Agreement by their
duly authorized officers as of the date and year first written above.
JANUS DISTRIBUTORS, INC.
By: ___________________________________
Name: ________________________________
Title:__________________________________
[SERVICE ORGANIZATION]
By: ___________________________________
Name: ________________________________
Title:__________________________________
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Schedule A
PORTFOLIOS
A-1
Schedule B
COMPENSATION
The Participating Organization shall receive a fee calculated at an
annual rate of ____%* of each Portfolio's average daily net assets attributable
to Retirement Shares beneficially owned by the Plan Participants.
*Fee shall not exceed .25%.
B-1
