Exhibit 4(q)
SUB-ADVISORY AGREEMENT
JANUS ADVISER RISK MANAGED LARGE CAP GROWTH FUND
(a Series of Janus Adviser Series)
This SUB-ADVISORY AGREEMENT (the "Agreement") is entered into effective as
of the 10th day of December 2002, by and between JANUS CAPITAL MANAGEMENT LLC, a
Delaware limited liability company ("Janus") and ENHANCED INVESTMENT
TECHNOLOGIES, LLC, a Delaware limited liability company ("INTECH").
WHEREAS, Janus has entered into an Investment Advisory Agreement (the
"Advisory Agreement") with Janus Adviser Series, a Delaware business trust (the
"Trust") and an open-end, management investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), with respect to the
Janus Adviser Risk Managed Large Cap Growth Fund, a series of the Trust (the
"Fund") pursuant to which Janus has agreed to provide investment advisory
services with respect to the Fund; and
WHEREAS, INTECH is engaged in the business of rendering investment advisory
services and is registered as an investment adviser under the Investment
Advisers Act of 1940, as amended (the "Advisers Act"); and
WHEREAS, Janus desires to retain INTECH to furnish investment advisory
services with respect to the Fund, and INTECH is willing to furnish such
services;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Duties of INTECH. Janus hereby engages the services of INTECH as subadviser
in furtherance of the Advisory Agreement. INTECH agrees to perform the
following duties, subject to the oversight of Janus and to the overall
control of the officers and the Board of Trustees (the "Trustees") of the
Trust:
(a) INTECH shall manage the investment operations of the Fund and the
composition of its investment portfolio, shall determine without prior
consultation with the Trust or Janus, what securities and other assets
of the Fund will be acquired, held, disposed of or loaned, and place
orders for the purchase or sale of such securities or other assets
with brokers, dealers or others, all in conformity with the investment
objectives, policies and restrictions and the other statements
concerning the Fund in the Trust's trust instrument, as amended from
time to time (the "Trust Instrument"), bylaws and registration
statements under the 1940 Act and the Securities Act of 1933, as
amended (the "1933 Act"), the Advisers Act, the rules thereunder and
all other applicable federal and state laws and regulations, and the
provisions of the Internal Revenue Code of 1986, as amended (the
"Code"), applicable to the Fund as a regulated investment company;
(b) INTECH shall cause its officers to attend meetings and furnish oral or
written reports, as the Trust or Janus may reasonably require, in
order to keep Janus, the Trustees and appropriate officers of the
Trust fully informed as to the condition of the investment portfolio
of the Fund, the investment decisions of INTECH, and the investment
considerations which have given rise to those decisions;
(c) INTECH shall maintain all books and records required to be maintained
by INTECH pursuant to the 1940 Act, the Advisers Act, and the rules
and regulations promulgated thereunder, as the same may be amended
from time to time, with respect to transactions on behalf of the Fund,
and shall furnish the Trustees and Janus with such periodic and
special reports as the Trustees or Janus reasonably may request.
INTECH hereby agrees that all records which it maintains for the Fund
or the Trust are the property of the Trust, agrees to permit the
reasonable inspection thereof by the Trust or its designees and agrees
to preserve for the periods prescribed under the 1940 Act and the
Advisers Act any records which it maintains for the Trust and which
are required to be maintained under the 1940 Act and the Advisers Act,
and further agrees to surrender promptly to the Trust or its designees
any records which it maintains for the Trust upon request by the
Trust;
(d) INTECH shall submit such reports relating to the valuation of the
Fund's assets and to otherwise assist in the calculation of the net
asset value of shares of the Fund as may reasonably be requested;
(e) INTECH shall, on behalf of the Fund, exercise such voting rights,
subscription rights, rights to consent to corporate action and any
other rights pertaining to the Fund's assets that may be exercised, in
accordance with any policy pertaining to the same that may be adopted
or agreed to by the Trustees of the Trust, or, in the event that the
Trust retains the right to exercise such voting and other rights, to
furnish the Trust with advice as may reasonably be requested as to the
manner in which such rights should be exercised;
(f) At such times as shall be reasonably requested by the Trustees or
Janus, INTECH shall provide the Trustees and Janus with economic,
operational and investment data and reports, including without
limitation all information and materials reasonably requested by or
requested to be delivered to the Trustees of the Trust pursuant to
Section 15(c) of the 1940 Act, and shall make available to the
Trustees and Janus any economic, statistical and investment services
normally available to similar investment company clients of INTECH;
and
(g) INTECH will provide to Janus for regulatory filings and other
appropriate uses materially accurate and complete information relating
to INTECH as may be reasonably requested by Janus from time to time
and, notwithstanding anything herein to the contrary, INTECH shall be
liable to Janus for all damages, costs and expenses, including without
limitation reasonable attorney's fees (hereinafter referred to
collectively as "Damages"), incurred by Janus as a result of any
material inaccuracies or omissions in such information provided by
INTECH to Janus, provided, however, that INTECH shall not be liable to
the extent that any Damages are based upon inaccuracies or omissions
made in reliance upon information furnished to INTECH by Janus.
2. Further Obligations. In all matters relating to the performance of this
Agreement, INTECH shall act in conformity with the Trust's Trust
Instrument, bylaws and currently effective registration statements under
the 1940 Act and the 1933 Act and any amendments or supplements thereto
(the "Registration Statements") and with the written policies, procedures
and guidelines of the Fund, and written instructions and directions of the
Trustees and Janus and shall comply with the requirements of the 1940 Act,
the Advisers Act, the rules thereunder, and all other applicable federal
and state laws and regulations. Janus agrees to provide to INTECH copies of
the Trust's Trust Instrument, bylaws, Registration Statement, written
policies, procedures and guidelines and written instructions and directions
of the Trustees and Janus, and any amendments or supplements to any of them
at, or, if practicable, before the time such materials become effective.
3. Obligations of Janus. Janus shall have the following obligations under this
Agreement:
(a) To keep INTECH continuously and fully informed (or cause the custodian
of the Fund's assets to keep INTECH so informed) as to the composition
of the investment portfolio of the Fund and the nature of all of the
Fund's assets and liabilities from time to time;
(b) To furnish INTECH with a certified copy of any financial statement or
report prepared for the Fund by certified or independent public
accountants and with copies of any financial statements or reports
made to the Fund's shareholders or to any governmental body or
securities exchange;
(c) To furnish INTECH with any further materials or information which
INTECH may reasonably request to enable it to perform its function
under this Agreement; and
(d) To compensate INTECH for its services in accordance with the
provisions of Section 4 hereof.
4. Compensation. Janus shall pay to INTECH for its services under this
Agreement a fee, payable in United States dollars, at an annual rate of
0.26% of the average daily net assets of the Fund. This fee shall be
computed and accrued daily and payable monthly as of the last day of each
month during which or part of which this Agreement is in effect. For the
month during which this Agreement becomes effective and the month during
which it terminates, however, there shall be an appropriate proration of
the fee payable for such month based on the number of calendar days of such
month during which this Agreement is effective.
5. Expenses. INTECH shall pay all its own costs and expenses incurred in
rendering its service under this Agreement.
6. Representations of INTECH. INTECH hereby represents, warrants and covenants
to Janus as follows:
(a) INTECH: (i) is registered as an investment adviser under the Advisers
Act and will continue to be so registered for so long as this
Agreement remains in effect; (ii) is not prohibited by the 1940 Act or
the Advisers Act from performing the services contemplated by this
Agreement; (iii) has met, and will continue to meet for so long as
this Agreement remains in effect, any other applicable federal or
state requirements, or the applicable requirements of any regulatory
or industry self-regulatory organization necessary to be met in order
to perform the services contemplated by this Agreement; (iv) has the
legal and corporate authority to enter into and perform the services
contemplated by this Agreement; and (v) will immediately notify Janus
of the occurrence of any event that would disqualify INTECH from
serving as an investment adviser of an investment company pursuant to
Section 9(a) of the 1940 Act or otherwise, and of the institution of
any administrative, regulatory or judicial proceeding against INTECH
that could have a material adverse effect upon INTECH's ability to
fulfill its obligations under this Agreement.
(b) INTECH has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the 1940 Act and will provide Janus
with a copy of such code of ethics, together with evidence of its
adoption. Within 45 days after the end of the last calendar quarter of
each year that this Agreement is in effect, the president or a vice
president of INTECH shall certify to Janus that INTECH has complied
with the requirements of Rule 17j-1 during the previous year and that
there has been no violation of INTECH's code of ethics or, if such a
violation has occurred, that appropriate action was taken in response
to such violation. Upon the written request of Janus, INTECH shall
permit Janus, its employees or its agents to examine the reports
required to be made to INTECH by Rule 17j-1(c)(1) and all other
records relevant to INTECH's code of ethics.
(c) INTECH has provided Janus with a copy of its Form ADV as most recently
filed with the U.S. Securities and Exchange Commission ("SEC") and
will, promptly after filing any amendment to its Form ADV with the
SEC, furnish a copy of such amendment to Janus.
7. Representations of Janus. Janus hereby represents, warrants and covenants
to INTECH as follows:
(a) Janus (i) is registered as an investment adviser under the Advisers
Act and will continue to be so registered for so long as this
Agreement remains in effect; (ii) is not prohibited by the 1940 Act or
the Advisers Act from fulfilling its obligations under this Agreement;
(iii) has met, and will continue to meet for so long as this Agreement
remains in effect, any other applicable federal or state requirements,
or the applicable requirements of any regulatory or industry
self-regulatory organization necessary to be met in order to fulfill
its obligations under this Agreement; (iv) has the legal and corporate
authority to enter into and perform this Agreement; and (v) will
immediately notify INTECH of the occurrence of any event that would
disqualify Janus from serving as an investment adviser of an
investment company pursuant to Section 9(a) of the 1940 Act or
otherwise, and of the institution of any administrative, regulatory or
judicial proceeding against Janus that could have a material adverse
effect upon Janus' ability to fulfill its obligations under this
Agreement.
(b) Janus has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the 1940 Act and will provide INTECH
with a copy of such code of ethics, together with evidence of its
adoption.
(c) Janus has provided INTECH with a copy of its Form ADV as most recently
filed with the U.S. Securities and Exchange Commission ("SEC") and
will, promptly after filing any amendment to its Form ADV with the
SEC, furnish a copy of such amendment to INTECH.
8. Term. This Agreement shall become effective as of the date first set forth
above and shall continue in effect until July 1, 2004 unless sooner
terminated in accordance with its terms, and shall continue in effect from
year to year thereafter only so long as such continuance is specifically
approved at least annually by the vote of a majority of the Trustees of the
Trust who are not parties hereto or interested persons of the Trust, Janus
or INTECH, cast in person at a meeting called for the purpose of voting on
the approval of the terms of such renewal, and by either the Trustees of
the Trust or the affirmative vote of a majority of the outstanding voting
securities of the Fund. The annual approvals provided for herein shall be
effective to continue this Agreement from year to year if given within a
period beginning not more than ninety (90) days prior to July 1 of each
applicable year, notwithstanding the fact that more than three hundred
sixty-five (365) days may have elapsed since the date on which such
approval was last given.
9. Termination. This Agreement may be terminated at any time, without penalty,
by the Trustees or by the shareholders of the Fund acting by vote of at
least a majority of its outstanding voting securities, provided in any such
case that 60 days' advance written notice of termination be given to INTECH
at its principal place of business. This Agreement may be terminated (i) by
Janus or by INTECH at any time, without penalty by giving 60 days' advance
written notice of termination to the other party, or (ii) by Janus or the
Trust without advance notice if INTECH becomes unable to discharge its
duties and obligations under this Agreement. In addition, this Agreement
shall terminate, without penalty, upon termination of the Advisory
Agreement.
10. Assignment. This Agreement shall automatically terminate in the event of
its assignment.
11. Amendments. This Agreement may be amended by the parties only in a written
instrument signed by the parties to this Agreement and only if such
amendment is specifically approved (i) by a majority of the Trustees,
including a majority of the Trustees who are not interested persons (as
that phrase is defined in Section 2(a)(19) of the 0000 Xxx) of the Trust or
Janus, INTECH or their affiliates, and (ii) if required by applicable law,
by the affirmative vote of a majority of the outstanding voting securities
of the Fund (as that phrase is defined in Section 2(a)(42) of the 1940
Act).
12. Limitation on Personal Liability. All parties to this Agreement acknowledge
and agree that the Trust is a series trust and all debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing
with respect to a particular series shall be enforceable against the assets
held with respect to such series only, and not against the assets of the
Trust generally or against the assets held with respect to any other series
and further that no Trustee, officer or holder of shares of beneficial
interest of the Trust shall be personally liable for any of the foregoing.
13. Limitation of Liability of INTECH. Janus will not seek to hold INTECH, and
INTECH shall not be, liable for any error of judgment or mistake of law or
for any loss arising out of any investment or for any act or omission taken
with respect to the Fund, except for willful misfeasance, bad faith or
gross negligence in the performance of its duties, or by reason of reckless
disregard of its obligations and duties hereunder and except to the extent
otherwise provided by law. As used in this section, "INTECH" shall include
any affiliate of INTECH performing services for the Fund contemplated
hereunder and directors, officers and employees of INTECH and such
affiliates.
14. Activities of INTECH. The services of INTECH hereunder are not to be deemed
to be exclusive, and INTECH is free to render services to other parties, so
long as its services under this Agreement are not materially adversely
affected or otherwise impaired thereby. Nothing in this Agreement shall
limit or restrict the right of any director, officer or employee of INTECH
to engage in any other business or to devote his or her time and attention
in part to the management or other aspects of any other business, whether
of a similar or a dissimilar nature. It is understood that Trustees,
officers and shareholders of the Trust are or may become interested in
INTECH as directors, officers and shareholders of INTECH, that directors,
officers, employees and shareholders of INTECH are or may become similarly
interested in the Trust, and that INTECH may become interested in the Trust
as a shareholder or otherwise.
15. Third Party Beneficiary. The parties expressly acknowledge and agree that
the Trust is a third party beneficiary of this Agreement and that the Trust
shall have the full right to xxx upon and enforce this Agreement in
accordance with its terms as if it were a signatory hereto. Any oversight,
monitoring or evaluation of the activities of INTECH by Janus, the Trust or
the Fund shall not diminish or relieve in any way the liability of INTECH
for any of its duties and responsibilities under this Agreement.
16. Notices. Any notice or other communication required to be given pursuant to
this Agreement shall be deemed duly given if delivered personally or by
overnight delivery service or mailed by certified or registered mail,
return receipt requested and postage prepaid, or sent by facsimile
addressed to the parties at their respective addresses set forth below, or
at such other address as shall be designated by any party in a written
notice to the other party.
(a) To Janus at:
Janus Capital Management LLC
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Phone: (000) 000-0000
Fax: (000) 000-0000
(b) To INTECH at:
Enhanced Investment Technologies, LLC
0000 XXX Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Attention: President
Phone: (000) 000-0000
Fax: (000) 000-0000
(c) To the Trust at:
Janus Adviser Series
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Phone: (000) 000-0000
Fax: (000) 000-0000
17. Certain Definitions. The terms "vote of a majority of the outstanding
voting securities," "assignment," "approved at least annually," and
"interested persons" shall have the respective meanings specified in the
1940 Act, as now in effect or hereafter amended, and the rules and
regulations thereunder, subject to such orders, exemptions and
interpretations as may be issued by the SEC under the 1940 Act and as may
be then in effect.
18. Governing Law. This Agreement shall be construed in accordance with the
laws of the State of Colorado (without giving effect to the conflicts of
laws principles thereof) and the 1940 Act. To the extent that the
applicable laws of the State of Colorado conflict with the applicable
provisions of the 1940 Act, the latter shall control.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers designated below as of the day
and year first above written.
JANUS CAPITAL MANAGEMENT LLC
By:________________________________
ENHANCED INVESTMENT TECHNOLOGIES, LLC
By:________________________________
Xxxxx X. Xxxxxx
Senior Vice President and
Chief Operating Officer
