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EXHIBIT 8(m)(iii)
DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
SHARES OF JANUS ADVISER SERIES
(for Plans)
This Agreement is made as of _________________, by and between Janus
Distributors, Inc. (the "Distributor"), a Colorado corporation, and The Variable
Annuity Life Insurance Company (the "Service Provider"), a Texas corporation.
RECITALS
A. The Distributor serves as the distributor to an initial class of
shares ("Shares") of Janus Adviser 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 pension or
retirement plans ("Plans") in connection with their investment in the 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
and statements of additional information to prospective and existing 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.
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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 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
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 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.
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
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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 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 Shares of the
Funds. 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 Shares of each Fund 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 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.
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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 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 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. 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
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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.
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.
(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
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If to the Service Provider:
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JANUS DISTRIBUTORS, INC. ---------------------------------
(Name of Service Provider)
By: By:
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Name: Xxxxxx Xxxxxx Xxxxx Name:
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Title: Vice President Title:
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EXHIBIT A TO DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
Name of Fund Fee Factor*
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All Funds of Janus Adviser Series** .25%
The Service Provider has no obligation to make available any or all of the Funds
of Janus Adviser Series.
* Shall not exceed 0.25%
** Certain Funds of Janus Adviser Series may become closed to new investors
after the date of this Agreement. If a certain Janus Adviser Series 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.
