Exhibit 5(f)
FORM OF
DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
SERVICE II 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 II Shares" of certain 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 II 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 II 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 II Shares.
D. The parties desire that Service II 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 II 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 II
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 II Shares; assisting Plan Participants in completing application forms
and selecting account options; and providing participant record-keeping and
similar administrative services.
(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 II 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 II Shares
of any Portfolio, including the sale of such Service II Shares to the Service
Provider for the account of any Plan Participant or Participants.
(d) Service Provider shall not make the Service II 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 II 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 II Shares,
or Distributor except those representations contained in the then-current
prospectus and statement of additional information for the Service II 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.
(b) Service Provider shall maintain and transmit to Distributor on
at least a monthly basis information on sales, redemptions and exchanges of
Service II 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 II 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 II
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 II Shares of any Portfolio to any person, or to suspend or terminate the
offering of the Service II 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 II
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 II 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 II 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 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.
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;
(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
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 II 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.
(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.
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By: By:
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Name: Xxxxxx X. Xxxx Name:
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Title: Vice President Title:
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EXHIBIT A TO DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
NAME OF PORTFOLIO FEE FACTOR*
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International Growth Portfolio 0.25%
Worldwide Growth Portfolio
Global Technology Portfolio
(Service II Shares)
*Shall not exceed 0.25%
