EXHIBIT 5(e)
DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
Service Shares of Janus Aspen Series
(for Qualified Plans)
This Agreement is made as of ______________, by and between Janus
Distributors, Inc. (the "Distributor"), a Colorado corporation, and
__________________________ (the "Service Provider"), a ____________________
corporation.
Recitals
A. The Distributor serves as the distributor to a class of shares
designated the "Service 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").
B. Service Provider desires to provide certain distribution and shareholder
services to certain participants ("Plan Participants") in qualified pension or
retirement plans ("Plans") in connection with their investment in the Service
Shares of the series of the Trust listed on Exhibit A hereto (each a
"Portfolio") 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 Service Shares of each
Portfolio 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 Portfolio's average daily net assets attributable to
the Service Shares.
D. The parties desire that Service Shares of the Portfolios 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 Service Shares of the Portfolios: delivering
prospectuses, statements of additional information, shareholder reports, proxy
statements and marketing materials to prospective and existing Plan
Participants; providing educational materials regarding the Service Shares;
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
Service Shares; assisting Plan Participants in completing application forms and
selecting account options; and providing participant record-keeping and similar
administrative services.
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(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 Service 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 Service Shares of
any Portfolio, including the sale of such Service Shares to the Service Provider
for the account of any Plan Participant or Participants.
(d) Service Provider shall not make the Service Shares available to
Plan Participants except in compliance with federal and state securities law and
subject to the terms of the prospectus for the Service Shares. Service Provider
shall be responsible for delivering the prospectus, statement of additional
information 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. No person is authorized to make any
representations concerning the Trust, the Portfolios, the Service Shares, or
Distributor except those representations contained in the then-current
prospectus and statement of additional information for the Service 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 Portfolios 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.
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.
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(b) Service Provider shall maintain and transmit to Distributor on at
least a monthly basis information on sales, redemptions and exchanges of Service
Shares of each Portfolio 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
Service 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 Portfolios. 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 Portfolios and the sale of the Service 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 Service
Shares of any Portfolio to any person, or to suspend or terminate the offering
of the Service 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 duties
under applicable law, necessary in the best interests of the shareholders of any
Portfolio.
6. Proprietary Rights. Janus Capital Corporation ("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 Service Shares
of the Portfolios. Upon termination of this Agreement for any reason, the
Service Provider shall immediately cease all use of any Xxxxx xxxx.
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 Service Shares of each Portfolio by Plans
whose Plan Participants 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 Service Shares
of each Portfolio 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
totalling 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.
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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.
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 Employment Retirement Income 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;
(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 the Employee Retirement Income Security Act f 1974, as amended
("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;
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(g) Each Plan meets the requirements for qualified plan status under
one of the IRC Sections listed in Revenue Ruling 94-62 (attached as Exhibit C)
and will continue to meet these requirements. Service Provider will immediately
notify the Distributor if it obtains knowledge that such representation is not
true;
(h) [Each Plan is a participant-directed plan.] If not explain
(i) Any of Service Provider's trading systems that interact with the
Distributor via any form of automated feed prior to, during and after the
calendar year 2000 will recognize accurate century data, and user interfaces and
operation environments will comply with Year 2000 application standards.
10. Termination.
(a) Unless sooner terminated with respect to any Portfolio, this
Agreement will continue with respect to a Portfolio if only 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
Portfolio 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
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 Provider, without
penalty, upon 60 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 12b-1 Plan relating to
such Portfolio or any agreement relating to such Plan, including this Agreement,
or by a vote of a majority of the Service Shares of such Portfolio 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.
11. 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.
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(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, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel
If to the Service Provider:
JANUS DISTRIBUTORS, INC. __________________________________
By:____________________________ By:_____________________________
Name: Xxxxxx Xxxxxx Xxxxx Name:
Title: Vice President Title:
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Exhibit A to Distribution and Shareholder Services Agreement
Name of Portfolio Fee Factor*
All Portfolios of Janus Aspen Series 0.25%
(Service Shares)
*Shall not exceed 0.25%
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