SUB-ADVISORY AGREEMENT JANUS REAL RETURN SUBSIDIARY, LTD.
Form of
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Exhibit (d)(195) |
JANUS REAL RETURN SUBSIDIARY, LTD.
This
SUB-ADVISORY AGREEMENT (the “Agreement”) is entered into
effective as of this 13th day of May, 2011, by and between JANUS CAPITAL MANAGEMENT LLC, a Delaware limited liability
company (“Janus”) and ARMORED WOLF, LLC a Delaware limited liability company (“Armored Wolf”).
WHEREAS, Janus has entered into an Investment Advisory Agreement with Janus Investment
Fund, a Massachusetts 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
Janus Real Return Allocation 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, Janus Real Return Subsidiary, Ltd. (the “Subsidiary”), is a Cayman Islands exempted
company which has been organized as a wholly-owned subsidiary of the Fund; and
WHEREAS, Janus has also entered into an Investment Advisory Agreement (the “Advisory
Agreement”) with the Subsidiary pursuant to which Janus has agreed to provide investment advisory
services with respect to the Subsidiary; and
WHEREAS, Armored Wolf 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, pursuant to the authority granted to Janus in the Advisory Agreement, Janus desires
to retain Armored Wolf to furnish investment advisory services with respect to the Subsidiary, and
Armored Wolf 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 Armored Wolf. Janus hereby engages the services of Armored Wolf as
subadviser in furtherance of the Advisory Agreement. Armored Wolf agrees to perform the following
duties, subject to the oversight of Janus and the Subsidiary’s Board of Directors (“Directors”),
and to the overall control of the officers and the Board of Trustees (the “Trustees”) of the Trust:
(a) Armored Wolf shall manage the investment operations of the Subsidiary and the composition
of its investment portfolio, and, shall determine without prior consultation with the Subsidiary or
Janus, what securities and other assets of the Subsidiary 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 Subsidiary in the Subsidiary’s Memorandum and Articles of
Association (the “Articles”), the Trust’s Declaration of Trust, 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 foreign, federal, and state laws and regulations, and the
provisions of the Internal Revenue Code of 1986, as amended (the “Code”), applicable to the Trust,
on behalf of the Fund, as a regulated investment company, and to the Subsidiary;
(b) Armored Wolf shall cause its officers to attend meetings and furnish oral or written
reports, as the Subsidiary, Trust, or Janus may reasonably require, in order to keep the
Subsidiary, Janus, and the Trustees of the Trust and appropriate officers of the Trust fully
informed as to the condition of the investment portfolio of the Subsidiary, the investment
decisions of Armored Wolf, and the investment considerations which have given rise to those
decisions;
(c) Armored Wolf shall maintain all books and records required to be maintained by Armored
Wolf 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 Subsidiary, and shall furnish the Directors, Trustees, and Janus with such periodic and special
reports as the Directors, Trustees, or Janus reasonably may request. Armored Wolf hereby agrees
that all records which it maintains for the Subsidiary are the property of the Subsidiary, agrees
to permit the reasonable inspection thereof by the Subsidiary 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 Subsidiary and which are required to be maintained under the 1940 Act and the
Advisers Act, and further agrees to surrender promptly to the Subsidiary or its designees any
records which it maintains for the Subsidiary upon request by the Subsidiary;
(d) Armored Wolf shall submit such reports relating to the valuation of the Subsidiary’s
assets and to otherwise assist in the calculation of the net asset value of shares, including fair
valuation, of the Subsidiary as may reasonably be requested;
(e) Armored Wolf shall provide Janus, the Fund, or its service providers with such assistance
and advice as Janus, the Fund or its service providers may reasonably request as to the manner in
which to exercise, on behalf of the Subsidiary, such voting rights, subscription rights, rights to
consent to corporate action and any other rights pertaining to the Subsidiary’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, so that Janus, the Fund, or its service providers may exercise such
rights, 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 Subsidiary, Trust, or Janus, Armored
Wolf shall provide the Subsidiary 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 of the Trust and Janus any economic, statistical and
investment services normally available to investment company clients of Armored Wolf; and
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(g) Armored Wolf will provide to Janus, the Fund, or its service providers for regulatory
filings and other appropriate uses materially accurate and complete information relating to Armored
Wolf as may be reasonably requested by Janus, the Fund, or its service providers from time to time
and, notwithstanding anything herein to the contrary, Armored Wolf 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 Armored Wolf to Janus, provided, however, that Armored
Wolf shall not be liable to the extent that any Damages are based upon inaccuracies or omissions
made in reliance upon information furnished to Armored Wolf by Janus.
(h) Armored Wolf will keep Janus and the Company informed of all material changes to Armored
Wolf’s business structure, including key personnel changes and material changes to financial condition.
2. Further Obligations. In all matters relating to the performance of this Agreement,
Armored Wolf shall act in conformity with the Subsidiary’s Articles, 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/or the Subsidiary, and written instructions and
directions of the Directors, Trustees, and Janus and shall comply with the requirements of the 1940
Act, the Advisers Act, the rules thereunder, and all other applicable foreign, federal and state
laws and regulations. Janus agrees to provide to Armored Wolf copies of the Subsidiary’s Articles,
the Trust’s Trust Instrument, bylaws, Registration Statement, written policies, procedures and
guidelines and written instructions and directions of the Directors, 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 Armored Wolf continuously and fully informed (or cause the custodian of the
Subsidiary’s assets or the Subsidiary’s administrator to keep Armored Wolf so informed) as to the
composition of the investment portfolio of the Subsidiary and the nature of all of the Subsidiary’s
assets and liabilities from time to time;
(b) To furnish Armored Wolf with a certified copy of any financial statement or report
prepared for the Subsidiary by certified or independent public accountants and with copies of any
financial statements or reports made to the Subsidiary’s shareholder or to any governmental body or securities exchange;
(c) To furnish Armored Wolf with any further materials or information which Armored Wolf may
reasonably request to enable it to perform its function under this Agreement; and
(d) To compensate Armored Wolf for its services in accordance with the provisions of Section 4 hereof.
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4. Compensation. Janus shall pay to Armored Wolf for its services under this
Agreement a fee calculated and payable for each day that this Agreement is in effect. The annual
fee rate shall be determined based on the level of aggregate average daily closing net asset values
of the Janus Real Return Allocation Fund and the Subsidiary as follows:
| Average Daily Closing Net Assets of the Fund and Subsidiary | Annual Fee Rate | |
First $3,000,000,000 |
0.375% | |
Over $3,000,000,000 |
0.36% |
The fee calculated and payable for each day this Agreement is in effect shall be the product of the
1/365 (1/366 in a leap year) of the applicable fee rate as determined above applied to the average
daily closing net asset value of the Subsidiary. During the first two year term of this Agreement,
the applicable annual fee rate shall be reduced by 0.05% annually.
Fees paid to Armored Wolf 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. Armored Wolf shall pay all its own costs and expenses incurred in
rendering its services under this Agreement.
6. Representations of Armored Wolf. Armored Wolf hereby represents, warrants and
covenants to Janus as follows:
(a) Armored Wolf: (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 Armored Wolf 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 Armored Wolf that
could have a material adverse effect upon Armored Wolf’s ability to fulfill its obligations under
this Agreement.
(b) Armored Wolf has adopted a written code of ethics complying with the requirements of Rule
17j-1 under the 1940 Act and, to the extent it is a separate Code of Ethics from that of Janus,
will provide Janus with a copy of such code of ethics, together with evidence of its adoption, and
any material changes thereto. 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 Armored Wolf shall
certify to Janus that Armored Wolf has complied with the requirements of
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Rule 17j-1 during the previous year and that there has been no violation of Armored Wolf’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, Armored Wolf shall permit Janus, its
employees or its agents to examine the reports required to be made to Armored Wolf by Rule
17j-1(c)(1) and all other records relevant to Armored Wolf’s code of ethics.
(c) Armored Wolf 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.
(d) Armored Wolf shall maintain a fidelity bond as required by Rule 17g-1 of the 1940 Act, as
well as insurance for its directors and officers, errors and omissions coverage, and cost of
corrections coverage. All such coverage shall be in adequate amounts related to Armored Wolf’s duties under this Agreement.
(e) As required by Rule 206(4)-7 under the Advisers Act, Armored Wolf has adopted written
policies and procedures reasonably designed to prevent violation by it, or any of its supervised
persons, of the Advisers Act and the rules under the Advisers Act and all other laws and
regulations relevant to the performance of its duties under this Agreement. Armored Wolf has
designated a chief compliance officer responsible for administering these compliance policies and
procedures. The chief compliance officer at Armored Wolf’s expense shall provide such written
compliance reports relating to the operations and compliance procedures of Armored Wolf to the
Adviser and/or the Trustees and the chief compliance officer as may be required by law or
regulation or as are otherwise reasonably requested. Moreover, Armored Wolf agrees to use such
other or additional compliance techniques as Janus, the Directors, or the Trustees may reasonably
adopt or approve, including written compliance procedures. In addition, Armored Wolf shall retain,
at its own expense, the services of the Fund’s or Subsidiary’s custodian or any other party as
requested by the Directors or Trustees to monitor the compliance of the Subsidiary’s portfolio
with the investment objective, policies and restrictions set forth in the Fund’s registration statement.
(f) The parties hereto agree that each shall treat confidentially all information provided by
each party to the other party regarding its business and operations. All confidential information
provided by a party hereto shall be used by any other party hereto solely for the purpose of
rendering or receiving services pursuant to this Agreement and, except as may be required in
carrying out this Agreement, shall not be disclosed to any third party. The foregoing shall not be
applicable to any information (i) that is publicly available when provided or thereafter becomes
publicly available, other than through a breach of this Agreement, or that is independently derived
by any party hereto without the use of any information provided by the other party hereto in
connection with this Agreement, (ii) that is required in any legal or regulatory proceeding,
investigation, audit, examination, subpoena, civil investigative demand or other similar process,
or by operation of law or regulation, or (iii) where the party seeking to disclose has received the
prior written consent of the party providing the information, which consent shall not be
unreasonably withheld. Armored Wolf acknowledges that Company portfolio holdings are the
confidential property of the Company, and except for the provision of investment advisory services
as contemplated in this Agreement, may not be shared or used
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directly or indirectly for any purpose, including personal trading in Fund shares or personal
trading in Company holdings.
7. Term. This Agreement shall become effective as of the date first set forth above
and shall continue in effect until February 1, 2013, 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 (a) the vote of a majority of the
Trustees of the Trust who are not parties hereto or interested persons of the Trust, Janus or
Armored Wolf, cast in person at a meeting called for the purpose of voting on the approval of the
terms of such renewal, and (b) 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 February 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.
8. Termination. This Agreement may be terminated at any time, without penalty, by the
Subsidiary, the Trustees, or by the shareholder of the Subsidiary 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 Armored Wolf at its principal place of business. This
Agreement may be terminated (i) by Janus at any time, without penalty by giving 90 days’ advance
written notice of termination to Armored Wolf; (ii) by Armored Wolf at any time, without penalty by
giving 90 days’ advance notice to Janus and the Trust, unless Janus or the Trust requests
additional time to find a replacement for Armored Wolf, in which case Armored Wolf shall allow the
additional time requested by Janus or the Trust not to exceed 90 days’ beyond the initial 90 days’
notice period unless otherwise agreed to by Janus, the Trust and Armored Wolf; or (iii) by Janus,
the Subsidiary, or the Trust without advance notice if Armored Wolf becomes unable to discharge its
duties and obligations under this Agreement. In addition, this Agreement shall terminate, without
penalty, upon the termination of the Advisory Agreement.
9. Assignment. This Agreement shall automatically terminate in the event of its
assignment.
10. 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, Armored Wolf or their affiliates, and (ii) if required by applicable law, by the affirmative
vote of a majority of the outstanding voting securities of the Subsidiary (as that phrase is
defined in Section 2(a)(42) of the 1940 Act).
11. 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
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holder of shares of beneficial interest of the Trust shall be personally liable for any of the
foregoing. Additionally, all parties to this Agreement acknowledge and agree that no Director of
the Subsidiary shall be liable for any of the foregoing.
12. Limitation of Liability of Armored Wolf. Janus will not seek to hold Armored
Wolf, and Armored Wolf 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 Subsidiary,
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, “Armored Wolf” shall include any affiliate of
Armored Wolf performing services for the Fund contemplated hereunder and directors, officers and
employees of Armored Wolf and such affiliates.
13. Indemnification
(a) Janus agrees to indemnify and hold harmless Armored Wolf, any affiliated person of Armored
Wolf, and each person, if any, who, within the meaning of the 1933 Act controls (“controlling
person”) Armored Wolf (Armored Wolf and all of such persons being referred to as “Armored Wolf
Indemnified Persons”) against any and all losses, claims, damages, liabilities, or litigation
(including reasonable legal and other expenses) to which a Armored Wolf Indemnified Person may
become subject under the 1933 Act, the 1940 Act, the Advisers Act, under any other statute, at
common law or otherwise, arising out of Janus’ responsibilities to Armored Wolf which: (1) may be
based upon Janus’ willful misfeasance, bad faith, or gross negligence in the performance of its
duties, or by reason of Janus’ reckless disregard of its obligations and duties hereunder, or (2)
may be based upon any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or prospectus covering the Trust and/or the Subsidiary, or any amendment
thereof or any supplement thereto, or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein not misleading,
unless such statement or omission was made in reliance upon information furnished to Janus, the
Trust, the Subsidiary, or to any affiliated person of Janus by a Armored Wolf Indemnified Person;
provided however, that in no case shall the indemnity in favor of a Armored Wolf Indemnified Person
be deemed to protect such person against any liability to which such person would otherwise be
subject by reason of willful misfeasance, bad faith, or gross negligence in the performance of its
duties, or by reason of its reckless disregard of its obligations or duties hereunder.
(b) Notwithstanding Section 12 of this Agreement, Armored Wolf agrees to indemnify and hold
harmless the Subsidiary and its Directors, the Trust, the Fund, the Board of Trustees of the Trust,
Janus, any affiliated person of Janus, and any controlling person of Janus (Janus and all of such
persons being referred to as “Janus Indemnified Persons”) against any and all losses, claims,
damages, liabilities, or litigation (including reasonable legal and other expenses) to which a
Janus Indemnified Person may become subject under the 1933 Act, 1940 Act, the Advisers Act, under
any other statute, at common law or otherwise, arising out of Armored Wolf’s responsibilities as a
sub-adviser of the Subsidiary which: (1) may be based upon Armored Wolf‘s willful misfeasance, bad
faith, or gross negligence in the performance of its duties, or by reason of Armored Wolf’s
reckless disregard of its obligations or duties hereunder, or (2) may be based upon any untrue
statement or alleged untrue statement of a material fact
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contained in the Registration Statement or prospectus covering the Trust and/or Subsidiary, or any
amendment or supplement thereto, or the omission or alleged omission to state therein a material
fact known or which should have been known to Armored Wolf and was required to be stated therein or
necessary to make the statements therein not misleading, if such a statement or omission was made
in reliance upon information furnished to Janus, the Trust, the Subsidiary, or any affiliated
person of Janus, the Trust, or the Subsidiary by Armored Wolf or any affiliated person of Armored
Wolf; provided, however, that in no case shall the indemnity in favor of a Janus Indemnified Person
be deemed to protect such person against any liability to which such person would otherwise be
subject by reason of willful misfeasance, bad faith, or gross negligence in the performance of its
duties, or by reason of its reckless disregard of its obligations and duties hereunder.
(c) Janus shall not be liable under Paragraph (a) of this Section 13 with respect to any claim
made against an Armored Wolf Indemnified Person unless such Armored Wolf Indemnified Person shall
have notified Janus in writing within a reasonable time after the summons or other first legal
process giving information of the nature of the claim shall have been served upon such Armored
Wolf Indemnified Person (or after such Armored Wolf Indemnified Person shall have received notice
of such service on any designated agent), but failure to notify Janus of any such claim shall not
relieve Janus from any liability which it may have to the Armored Wolf Indemnified Person against
whom such action is brought except to the extent Janus is prejudiced by the failure or delay in
giving such notice. In case any such action is brought against the Armored Wolf Indemnified Person,
Janus will be entitled to participate, at its own expense, in the defense thereof or, after notice
to the Armored Wolf Indemnified Person, to assume the defense thereof, with counsel reasonably
satisfactory to the Armored Wolf Indemnified Person. If Janus assumes the defense of any such
action and the selection of counsel by Janus to represent Janus and the Armored Wolf Indemnified
Person would result in a conflict of interests and therefore, would not, in the reasonable judgment
of the Armored Wolf Indemnified Person, adequately represent the interests of the Armored Wolf
Indemnified Person, Janus will, at its own expense, assume the defense with counsel to Janus and,
also at its own expense, with separate counsel to the Armored Wolf Indemnified Person, which
counsel shall be reasonably satisfactory to Janus and to the Armored Wolf Indemnified Person. The
Armored Wolf Indemnified Person shall bear the fees and expenses of any additional counsel retained
by it, and Janus shall not be liable to the Armored Wolf Indemnified Person under this Agreement
for any legal or other expenses subsequently incurred by the Armored Wolf Indemnified Person
independently in connection with the defense thereof other than reasonable costs of investigation.
Janus shall not have the right to compromise on or settle the litigation without the prior written
consent of the Armored Wolf Indemnified Person if the compromise or settlement results, or may
result in a finding of wrongdoing on the part of the Armored Wolf Indemnified Person.
(d) Armored Wolf shall not be liable under Paragraph (b) of this Section 13 with respect to
any claim made against a Janus Indemnified Person unless such Janus Indemnified Person shall have
notified Armored Wolf in writing within a reasonable time after the summons or other first legal
process giving information of the nature of the claim shall have been served upon such Janus
Indemnified Person (or after such Janus Indemnified Person shall have received notice of such
service on any designated agent), but failure to notify Armored Wolf of any such claim shall not
relieve Armored Wolf from any liability which it may have to
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the Janus Indemnified Person against whom such action is brought except to the extent Armored Wolf
is prejudiced by the failure or delay in giving such notice. In case any such action is brought
against the Janus Indemnified Person, Armored Wolf will be entitled to participate, at its own
expense, in the defense thereof or, after notice to the Janus Indemnified Person, to assume the
defense thereof, with counsel reasonably satisfactory to the Janus Indemnified Person. If Armored
Wolf assumes the defense of any such action and the selection of counsel by Armored Wolf to
represent both Armored Wolf and the Janus Indemnified Person would result in a conflict of
interests and therefore, would not, in the reasonable judgment of the Janus Indemnified Person,
adequately represent the interests of the Janus Indemnified Person, Armored Wolf will, at its own
expense, assume the defense with counsel to Armored Wolf and, also at its own expense, with
separate counsel to the Janus Indemnified Person, which counsel shall be reasonably satisfactory to
Armored Wolf and to the Janus Indemnified Person. The Janus Indemnified Person shall bear the fees
and expenses of any additional counsel retained by it, and Armored Wolf hall not be liable to the
Janus Indemnified Person under this Agreement for any legal or other expenses subsequently incurred
by the Janus Indemnified Person independently in connection with the defense thereof other than
reasonable costs of investigation. Armored Wolf shall not have the right to compromise on or
settle the litigation without the prior written consent of the Janus Indemnified Person if the
compromise or settlement results, or may result in a finding of wrongdoing on the part of the Janus Indemnified Person.
14. Activities of Armored Wolf. The services of Armored Wolf hereunder are not to be
deemed to be exclusive, and Armored Wolf 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 Armored Wolf 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 Armored Wolf as directors, officers and shareholders of Armored Wolf, that
directors, officers, employees and shareholders of Armored Wolf are or may become similarly
interested in the Trust, and that Armored Wolf may become interested in the Trust as a shareholder
or otherwise.
15. Third Party Beneficiaries. The parties expressly acknowledge and agree that each
of the Subsidiary and the Trust are third party beneficiaries of this Agreement and that the
Subsidiary and/or the Trust shall have the full right to xxx upon and enforce this Agreement in
accordance with its terms as if they were a signatory hereto. Any oversight, monitoring or
evaluation of the activities of Armored Wolf by Janus, the Trust or the Subsidiary shall not
diminish or relieve in any way the liability of Armored Wolf 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: |
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| Janus Capital Management LLC | ||
| 000 Xxxxxxx Xxxxxx | ||
| Xxxxxx, Xxxxxxxx 00000 | ||
| Attention: General Counsel | ||
| Phone: (000) 000-0000 | ||
| Fax: (000) 000-0000 | ||
(b)
|
To Armored Wolf at: | |
| Armored Wolf, LLC | ||
| 00 Xxxxxxxxxx | ||
| Xxxxx Xxxxx, Xxxxxxxxxx 00000 | ||
| Attention: Xxxxx Xxxxxxxxxx, Managing Director and Chief Legal Officer | ||
| Phone: (000)000-0000 | ||
| Fax: (000)000-0000 | ||
(c)
|
To the Subsidiary at: | |
| c/o Janus Real Return Subsidiary, Ltd. | ||
| 000 Xxxxxxx Xxxxxx | ||
| Xxxxxx, Xxxxxxxx 00000 | ||
| Attention: Chief Legal 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: | ||||
| Xxxxx X. Xxxxxx | ||||
| Senior Vice President, General Counsel and Secretary | ||||
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| ARMORED WOLF, LLC |
||||
| By: | ||||
| Xxxx X. Xxxxxxxxxxxx | ||||
| Managing Director | ||||
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