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JANUS ASPEN SERIES
INVESTMENT ADVISORY AGREEMENT
MONEY MARKET PORTFOLIO
THIS INVESTMENT ADVISORY AGREEMENT (the "Agreement") is made this
3rd day of April, 2002, between JANUS
ASPEN SERIES, a Delaware business trust (the "Trust"), and JANUS CAPITAL
MANAGEMENT LLC, a Delaware limited
liability company ("JCM").
W I T N E S S E T H:
WHEREAS, the Trust is registered as an open-end management
investment company under the Investment
Company Act of 1940, as amended (the "1940 Act"), and has registered
its shares for public offering under the
Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Trust is authorized to create separate funds,
each with its own separate investment
portfolio of which the beneficial interests are represented by a separate
series of shares; one of such funds
created by the Trust being designated as the Money Market Portfolio
(the "Fund"); and
WHEREAS, the Trust and JCM deem it mutually advantageous
that JCM should assist the Trustees and
officers of the Trust in the management of the securities portfolio of
the Fund.
NOW, THEREFORE, the parties agree as follows:
1. Investment Advisory Services. JCM shall furnish
continuous advice and recommendations to the
Fund as to the acquisition, holding, or disposition of any or all
of the securities or other assets which the
Fund may own or contemplate acquiring from time to time. JCM shall give
due consideration to the investment
policies and restrictions and the other statements concerning the Fund
in the Trust Instrument, bylaws, and
registration statements under the 1940 Act and the 1933 Act, and to the
provisions of the Internal Revenue Code,
as amended from time to time, applicable to the Fund as a regulated
investment company and as a funding vehicle
for variable insurance contracts. In addition, JCM shall cause its
officers to attend meetings and furnish oral
or written reports, as the Trust may reasonably require, in order to
keep the Trustees and appropriate officers
of the Trust fully informed as to the condition of the investment
portfolio of the Fund, the investment
recommendations of JCM, and the investment considerations which have
given rise to those recommendations. JCM
shall supervise the purchase and sale of securities as directed by the
appropriate officers of the Trust.
2. Other Services. JCM is hereby authorized
(to the extent the Trust has not otherwise
contracted) but not obligated (to the extent it so notifies the Trustees
at least 60 days in advance), to perform
(or arrange for the performance by affiliates of) the management and
administrative services necessary for the
operation of the Fund. JCM is specifically authorized, on behalf
of the Trust, to conduct relations with
custodians, depositories, transfer and pricing agents, accountants,
attorneys, underwriters, brokers and dealers,
corporate fiduciaries, insurance company separate accounts, insurers,
banks and such other persons in any such
other capacity deemed by JCM to be necessary or desirable. JCM shall
generally monitor and report to Fund
officers the Fund's compliance with investment policies and restrictions
as set forth in the currently effective
prospectus and statement of additional information relating to the shares
of the Fund under the Securities Act of
1933, as amended. JCM shall make reports to the Trustees of its performance
of services hereunder upon request
therefor and furnish advice and recommendations with respect to such other
aspects of the business and affairs of
the Fund as it shall determine to be desirable. JCM is also authorized,
subject to review by the Trustees, to
furnish such other services as JCM shall from time to time determine
to be necessary or useful to perform the
services contemplated by this Agreement.
3. Obligations of Trust. The Trust shall have the following
obligations under this Agreement:
(a) to keep JCM continuously and fully informed as
to the composition of its investment
portfolio and the nature of all of its assets and
liabilities from time to time;
(b) to furnish JCM with a certified copy of any
financial statement or report prepared for
it by certified or independent public
accountants and with copies of any financial
statements or reports made to its
shareholders or to any governmental body or
securities exchange;
(c) to furnish JCM with any further materials or
information which JCM may reasonably
request to enable it to perform its function
under this Agreement; and
(d) to compensate JCM for its services and
reimburse JCM for its expenses incurred
hereunder in accordance with the provisions hereof.
4. Compensation. The Trust shall pay to JCM for its
investment advisory services a fee,
calculated and payable for each day that this Agreement is in effect,
of 1/365 of 0.25% of the aggregate closing
net asset value of the shares of the Fund for each day of such month.
5. Expenses Borne by JCM. In addition to the expenses
which JCM may incur in the performance of
its investment advisory functions under this Agreement, and the expenses
which it may expressly undertake to
incur and pay under other agreements with the Trust or otherwise,
JCM shall incur and pay the following expenses
relating to the Fund's operations without reimbursement from the Fund:
(a) Reasonable compensation, fees and related
expenses of the Trust's officers and its
Trustees, except for such Trustees who are not
interested persons of JCM; and
(b) Rental of offices of the Trust.
6. Expenses Borne by the Trust. The Trust assumes and shall
pay all expenses incidental to its
organization, operations and business not specifically assumed or agreed to
be paid by JCM pursuant to Sections 2
and 5 hereof, including, but not limited to, investment adviser fees; any
compensation, fees, or reimbursements
which the Trust pays to its Trustees who are not interested persons of JCM;
compensation of the Fund's custodian,
transfer agent, registrar and dividend disbursing agent; legal,
accounting, audit and printing expenses;
administrative, clerical, recordkeeping and bookkeeping expenses; brokerage
commissions and all other expenses in
connection with execution of portfolio transactions (including any
appropriate commissions paid to JCM or its
affiliates for effecting exchange listed, over-the-counter or other
securities transactions); interest; all
federal, state and local taxes (including stamp, excise, income and
franchise taxes); costs of stock certificates
and expenses of delivering such certificates to purchasers thereof; expenses
of local representation in Delaware;
expenses of shareholders' meetings and of preparing, printing and
distributing proxy statements, notices, and
reports to shareholders; expenses of preparing and filing reports
and tax returns with federal and state
regulatory authorities; all expenses incurred in complying with all
federal and state laws and the laws of any
foreign country applicable to the issue, offer, or sale of shares of the Fund,
including, but not limited to, all
costs involved in the registration or qualification of shares of the Fund for
sale in any jurisdiction, the costs
of portfolio pricing services and compliance systems, and all costs
involved in preparing, printing and mailing
prospectuses and statements of additional information of the Fund; and all
fees, dues and other expenses incurred
by the Trust in connection with the membership of the Trust in any trade
association or other investment company
organization. To the extent that JCM shall perform any of the above
described administrative and clerical
functions, including transfer agency, registry, dividend disbursing,
recordkeeping, bookkeeping, accounting and
blue sky monitoring and registration functions, and the preparation of
reports and returns, the Trust shall pay
to JCM compensation for, or reimburse JCM for its expenses incurred in
connection with, such services as JCM and
the Trust shall agree from time to time, any other provision of this
Agreement notwithstanding.
7. Treatment of Investment Advice. The Trust
shall treat the investment advice and
recommendations of JCM as being advisory only, and shall retain full
control over its own investment policies.
However, the Trustees may delegate to the appropriate officers of the
Trust, or to a committee of the Trustees,
the power to authorize purchases, sales or other actions affecting
the portfolio of the Fund in the interim
between meetings of the Trustees.
8. Termination. This Agreement may be terminated at any
time, without penalty, by the Trustees of
the Trust, or by the shareholders of the Fund acting by vote of at
least a majority of its outstanding voting
securities, provided in either case that sixty (60) days advance
written notice of termination be given to JCM at
its principal place of business. This Agreement may be terminated by JCM
at any time, without penalty, by giving
sixty (60) days advance written notice of termination to the Trust,
addressed to its principal place of
business. The Trust agrees that, consistent with the terms of the Trust
Instrument, the Trust shall cease to use
the name "Janus" in connection with the Fund as soon as reasonably
practicable following any termination of this
Agreement if JCM does not continue to provide investment advice to the
Fund after such termination.
9. Assignment. This Agreement shall terminate
automatically in the event of any assignment of
this Agreement.
10. Term. This Agreement shall continue in effect until
July 1, 2002, 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 any such party,
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.
11. Amendments. This Agreement may be amended by
the parties 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 JCM and, if required by
applicable law, (ii) 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. Other Series. The Trustees shall determine the basis
for making an appropriate allocation of
the Trust's expenses (other than those directly attributable to the Fund)
between the Fund and the other series
of the Trust.
13. Limitation of Personal Liability. All the parties
hereto acknowledge and agree that all
liabilities of the Trust arising, directly or indirectly, under this
Agreement, of any and every nature
whatsoever, shall be satisfied solely out of the assets of the Fund and
that no Trustee, officer or holder of
shares of beneficial interest of the Trust shall be personally liable for
any of the foregoing liabilities. The
Trust Instrument describes in detail the respective responsibilities
and limitations on liability of the
Trustees, officers and holders of shares of beneficial interest of the Trust.
14. Limitation of Liability of JCM. JCM 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 Trust,
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 14, "JCM" shall include any affiliate of
JCM performing services for the Trust
contemplated hereunder and directors, officers and employees of JCM and
such affiliates.
15. Activities of JCM. The services of JCM to the Trust
hereunder are not to be deemed to be
exclusive, and JCM and its affiliates are free to render services to
other parties. It is understood that
trustees, officers and shareholders of the Trust are or may become
interested in JCM as directors, officers and
shareholders of JCM, that directors, officers, employees and shareholders
of JCM are or may become similarly
interested in the Trust, and that JCM may become interested in the Trust as
a shareholder or otherwise.
16. Certain Definitions. The terms "vote of a majority of
the outstanding voting securities,"
"assignment" and "interested persons" when used herein, 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 Securities and
Exchange Commission under said Act and as
may be then in effect.
IN WITNESS WHEREOF, the parties have caused their duly
authorized officers to execute this Investment
Advisory Agreement as of the date and year first above written.
JANUS CAPITAL MANAGEMENT LLC
By:
Xxxxxx X. Early, Vice President
JANUS ASPEN SERIES
By:
Xxxxxx Xxxxxx Xxxxx, Vice President
